author: McGOWAN, Circuit Judge:

text:
    Max I. CHASTAIN v. Clarence M. KELLEY, Director, Federal Bureau of Investigation, Appellant.
    No. 73-2137.
    United States Court of Appeals, District of Columbia Circuit.
    April 2, 1975.

      Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 570 — 73).

      Barbara L. Herwig, Atty., Dept, of Justice, with whom Irving'Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Robert E. Kopp, Atty., Dept, of Justice, were on the brief, for appellant. Harold H. Titus, Jr., U. S. Atty. at the time the record was filed, John A. Terry and Robert M. Werdig, Jr., Asst. U. S. Attys., also entered appearances for appellant.
    Lawrence Speiser, Washington, D. C., for appellee.
    Before FAHY, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges.
   Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

The District Court ordered the Federal Bureau of Investigation to expunge all records of an incident giving rise to charges by it that one of its agents had, among other things, misused his credentials. After first suspending the agent and giving him notice of proposed dismissal, the Bureau subsequently decided not to take this action. It was two days late in filing an opposition to the motion to expunge, which had been promptly filed after the Bureau’s decision and as promptly granted. We think that there are interests at stake going beyond those of the immediate parties to this litigation, and which warrant our vacating the judgment entered by the District Court in order that the Government may be heard on the question of expungement.

I

Plaintiff-appellee became a Special Agent of the FBI in November of 1970. On March 8, 1973, he received a letter from L. Patrick Gray, III, then the Bureau’s Acting Director, informing him of his immediate suspension without pay and of his proposed dismissal as of thirty days from the letter’s receipt. The letter set out a number of grounds for these actions. They all arose from the circumstances we now summarize.

On January 29, 1973, appellee was on leave from his duties in the Bureau’s Washington-Field Office, and was spending several days in Virginia Beach, Virginia. His purpose, at least in part, was to visit a female friend who was married to a naval officer then absent on assignment. Plaintiff had grown intimate with the woman during his own earlier naval service. She informed him upon arrival that another woman, a mutual acquaintance and also a resident of Virginia Beach, had recently complained of receiving a number of obscene telephone calls. Appellee came to the complainant’s aid. He went to the home of the neighbor whom she suspected was responsible for the calls. Gaining entrance, he displayed his FBI credentials and asked the neighbor a number of probing questions aimed at discovering whether he was indeed the culprit. The neighbor’s mother, who was present at the time, later reported the incident to the local FBI office in Norfolk, Virginia. After the interview, appellee reported back to the recipient of the telephone calls his conclusion that her suspicions about the neighbor were correct. He also divulged the neighbor’s true name, which he had discovered during the interview.

For this conduct, which appellee recounts in somewhat more innocuous terms but does not really deny, the Acting Director charged him with misuse of his FBI credentials, unauthorized disclosure (to the complainant about the telephone calls) of investigative information gained through his official position, and failure to inform the Special Agent in charge of the Norfolk office of an investigation within that agent’s territory. Appellee was further accused of not having kept his Washington superiors sufficiently informed of his whereabouts (he had left only the post office box number of his female friend) and also of “deception, lack of integrity, [and] uncooperative attitude.” The Acting Director gave as an example of the latter the fact that, in the course of applying to become a Special Agent, appellee had responded negatively to the question of whether he had any moral deficiencies, and had not reported the relationship he had had with the female friend during his earlier naval days.

On March 26, 1973, before final action was taken by the Bureau pursuant to its March 8 letter, appellee sued in the District Court for an order prohibiting his dismissal and restoring him to active duty. A temporary restraining order was entered against dismissal only. While appellee’s motion for a preliminary injunction was still pending, William Ruckelshaus replaced Gray as the Bureau’s Acting Director. Ruckelshaus cancelled the suspension and proposed dismissal, and also awarded plaintiff his back pay. On May 23 the Government moved that the case be dismissed as moot. Appellee moved the following day for an order requiring the FBI (1) to expunge all records relating to the suspension and proposed dismissal, (2) never to base any further personnel action on those matters, and (3) to inform all those agencies to which the FBI had disseminated information about them that the charges had been withdrawn. On June 6 the District Court dismissed the case as moot, and, no opposition having been filed by the Government, granted the motion for expungement.

II

The federal courts are empowered to order the ' expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute. See, e. g., Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017, 1023 (1974); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, 966 (1973); Menard v. Mitchell, 139 U.S.App. D.C. 113, 430 F.2d 486 (1970). The cited cases involved the retention and dissemination of criminal records, and it is in that context that the propriety of ex-pungement orders has been most thoroughly explored. Since the power to order expungement is, however, only an instance of the general power of the federal courts to fashion appropriate remedies to protect important legal rights, it may also be invoked when the Government records in question are administrative rather than criminal.

The precedents in this latter regard are few, but they are clear enough. In Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129 (1955), for example, the Supreme Court held that the Loyalty Review Board, an organ of the Civil Service Commission established to review the recommendations of federal agencies that employees be dismissed for disloyalty to the United States, exceeded its jurisdiction in reopening the case of an employee whose loyalty had been approved by the relevant agency. The relief to which the Court found the employee entitled included “an order directing the respondent members of the Civil Service Commission to expunge from its records the Loyalty Review Board’s finding that there is a reasonable doubt as to petitioner’s loyalty . . ..” Id. at 348-349, 75 S.Ct. at 799.

Expungement, no less than any other equitable remedy, is one over which the trial judge exercises considera-^, ble discretion. It is a versatile tool: ex- j pungement of only some records, from j some Government files, may be enough, as may the placing of' restrictions on how J the information contained in the records' j may be used. It is a tool which must be ij applied with close attention to the peculiar facts of each case. Only in that way can it effect a proper reconciliation of the competing interests of the Government in retaining information relevant to job performance, and of the individual in having it forgotten. But it must be rationally and selectively responsive to those interests.

Appellee’s interest is in the vindication' of the rights alleged in his complaint, that is to say, in not being (i) suspended without pay during the thirty-day notice period in violation of the Veteran’s Preference Act, (ii) suspended or dismissed without such hearing as due process requires, (iii) penalized by one who was serving illegally as the Bureau’s Acting Director; or (iv) dismissed for improper or unsubstantiated reasons. These rights, assuming they exist, were in large part vindicated when appellee was reinstated with back pay.

There may remain a right not to be adversely affected by the information in the future. Such a right may exist if the information (1) is inaccurate, (2) was acquired by fatally flawed procedures, or (3) as may be the case with information about his private and personal relationships, is prejudicial without serving any proper pur.pose of tHe^Bureau’s. ' But there has not as yet been'a "finding by the trial court that any of these conditions exist. In fact, appellee has made no objection to the manner in which the Bureau carried out its inquiry, and he has admitted _ the substantial truth of what ft found with’ respect-to the misuse of his credentials. Moreover, the Bureau would appear to have a strong interest in retaining at least some of the information that the District Court ordered expunged. The abuse of official power by appellee in this case may seem a mild one, but even mild abuses, should they be tolerated and allowed to proliferate, will pose a severe threat to the public confidence upon which the Bureau relies.

The order may well have been justified at the time it was originally entered. The new Acting Director’s abandonment of the proposed disciplinary action could, in one view of the matter, be taken as implying an admission by him that the charges against appellee were inaccurate, improperly made, or simply insignificant. Such an admission might well have justified expungement, and might be presumed to have been made when the time in which to oppose expungement expired without the new Acting Director’s raising any objection. The reasonableness of that presumption was destroyed, however, when the Government filed its subsequent opposition, which included the following statements:

By the cancellation of the proposed dismissal and suspension, plaintiff was not absolved of any wrongdoing. The fact remains plaintiff did misuse his credentials and did unnecessarily involve the FBI in a matter over which it had no jurisdiction.

App. I at 52.

We do not know the precise reason for the cancellation. The new Acting Director may have considered only some of the charges against plaintiff to be credible and proper. Or — and what seems more likely — he may have thought the admitted misconduct insufficient, at least as a first offense, to warrant the severe sanction of dismissal. In any event, his opposition, albeit belated, raised doubts as to the propriety of ex-pungement, and strongly suggested the desirability of a hearing on its merits.

The expungement order must therefore be vacated, and is not to reissue prior to a hearing on the extent to which the information in the Bureau’s files violates appellee’s rights without serving any legitimate needs of the Bureau. In this connection we note the considerable latitude given the Bureau in its internal affairs, cf. Carter v. United States, 132 U.S.App.D.C. 303, 407 F.2d 1238, 1242 (1968), and also the limited relevance of the cases involving expungement of criminal records, the potential prejudicial effects of which far exceed that of the information here at issue. Compare Menard v. Saxbe, supra, 498 F.2d at 1024 (adverse effects of criminal records enumerated), with Finley v. Hampton, 154 U.S.App.D.C. 50, 473 F.2d 180 (1972) (effect of certain adverse information in employing agency’s files found not legally cognizable).

The part of the challenged order to which we see least objection is that requiring the Bureau to inform other agencies to which it has hitherto disseminated information about this matter that appellee was not in fact disciplined for it. Certainly it is the Bureau’s obligation to correct any erroneous information. Since the action the Board is required to take with respect to other agencies will otherwise depend on what it itself is required to do, however, it seems best to vacate the entire order and to allow the District Court to reexamine — -and perhaps to refashion — it in the light of what may be revealed by further proceedings.

Ill

The Government has not made it easy for the courts to protect its interest in this case. The challenged order was filed without opposition on June 6. On June 18 the Government moved for reconsideration under Fed.R.Civ.P. 60, but failed to allege any of the grounds upon which reconsideration may be granted thereunder. Instead, it asserted only that the order was “contrary to 44 U.S.C. § 3301 et seq., and the prevailing case law in this jurisdiction.” App. I 55. A supporting memorandum incorporated by reference the Government’s earlier untimely opposition to expungement, adding a case citation and quotations from 44 U.S.C. § 3301 et seq. Thus, the Government in its reconsideration motion attacked the district judge’s order on its merits, apparently assuming that Rule 60 gave it its first opportunity to appeal, which of course it does not. Gilmore v. Hinman, 89 U.S.App.D.C. 165, 191 F.2d 652, 653 (1951).

Perhaps the Government intended, as it now argues it did, to move under Rule 59(e) to alter or amend judgment. Actually the more appropriate motion was indeed under Rule 60. Expungement was ordered, we must assume for present purposes, because it was unopposed; and what the Government needed was to be relieved of this default. Rule 60 allows reconsideration of such a “default judgment” where the failure to oppose is due to “excusable neglect.” See 7 Moore, Federal Practice 248-251 (1974), and cases cited. As it happened, the Government offered no excuse whatsoever; and, under the circumstances, the district judge’s refusal to reconsider was certainly understandable.

It was not, however, required. Reliance on the wrong Rule may be overlooked, as neglect may be excused, in the discretion of the trial judge, and we do not think that that discretion was exercised to the best purpose in this instance. The Government’s errors, whether excusable or not, certainly worked no great inconvenience on the court, the opposition to expungement being out of time by only two days. More important, reconsideration was sought of an order on which there had never been a hearing on the merits, and which had the effect of removing from appellee’s personnel file all reference to what appears to have been a serious want of sound judgment on his part in the exercise of his official authority.

The latter factor is most persuasive for us. The expungement order on its face appears to flow as a natural consequence from the Bureau’s having abandoned its purpose to punish appellee by dismissal. It would indeed be unfortunate if in the future the Bureau were to think that, once it had proposed the suspension and dismissal of an employee, its only choices were to carry out that particular threat or to have all trace of the matter expunged from its records.

To be sure, we could limit the precedential effect of the district judge’s decision in this case by upholding it solely on the basis of the Government’s procedural oversights. But appellee was by his own admission guilty of “questionable judgment.” Should that lapse on his part be wiped from the Bureau’s records, it may be at the expense of other agents whose records better qualify them for promotion or other preferment. They should not suffer for the Government’s procedural errors, any more than should the public who bear the brunt of such lapses and who are entitled to have the Bureau’s personnel administration take them into account.

The judgment appealed from is vacated and the case remanded with instructions to allow the Government an opportunity to be heard in opposition to the motion for expungement in further proceedings consistent with this opinion.

It is so ordered.

TAMM, Circuit Judge, did not participate in the disposition of this case.

      . Appellee submitted for in camera inspection by the District Court an affidavit in which, inter alia, he admitted the investigative visit to the house of the suspect neighbor, but maintained that during it he had been courteous, had displayed his credentials only to put the neighbor at ease, and had specified that his was not an official FBI investigation. App. II at 8-25.

      . The order in its entirety required:
      1. That defendant and his successors shall remove from plaintiffs personnel file and from all records of the Federal Bureau of Investigation any and all records, memoranda, documents, writings, statements of witnesses, and investigative records, describing, referring to or alluding to the facts upon which the suspension and the proposed termination of plaintiff were based; and
      2. That defendant and/or his successor or successors are permanently enjoined from using any of the information or records referred to in Paragraph 1 of this Order or any records relating to this suit as criteria for advancement, promotion, salary increase or any other professional award or for any disciplinary action or termination of employment; and
      3. That defendant and/or his successor or successors shall contact any and all agencies, including the United States Civil Service Commission, to which they have disseminated any information regarding plaintiff and the facts upon which plaintiffs suspension and proposed termination or this suit were based and inform each such agency that the Bureau had withdrawn the suspension and proposed termination and that this Court has requested each such agency to remove any and all references of the above from any of its records;
      App. I at 49-50.

        . See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); United States v. McLeod, 385 F.2d 734, 748-750 (5th Cir. 1967).

      . Accord, Service v. Dulles, 98 U.S.App.D.C. 268, 235 F.2d 215, 219 (1956) rev’d on other grounds, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). See also Smith v. District Unemployment Compensation Board, 140 U.S.App.D.C. 361, 435 F.2d 433, 439 (1970) (Federal agency’s finding that ex-employee had resigned without cause, which finding made her ineligible for unemployment compensation, stricken unless required hearing provided). Cf. Finley v. Hampton, 154 U.S. App.D.C. 50, 473 F.2d 180 (1972) (presence in files of federal agency that employee had friends with “homosexual mannerisms” did not constitute cognizable legal_injury);_Newell v. Ignatius, 132 U.S.App.D.C. 252, 407 F.2d 715 (1969) (suit by naval disenrollee to expunge records of alleged disloyalty mooted by Navy’s voluntary expungement).
      In Janca v. Gray, Civil No. 1351-71 (D.D.C., filed April 2, 1973), two ex-employees of the FBI alleged that they had been illegally discharged because of their off-hours work for an organization which opposed certain foreign American military involvements. Following a default judgment, the Bureau was ordered, in terms similar to those of the order herein appealed from, to expunge all records of the incident, to base no future personnel ac*’"" thereon, and to bring the court’s order to the attention of all other agencies to which information concerning the incident had been disseminated. An appeal was taken but subsequently abandoned by the Government.
      Were it necessary to protect important statutory or constitutional rights of appellee, ex-pungement in this case would not be prevented, as the Government has argued, by the command of 44 U.S.C. § 3314 (1970) that Government records “may not be alienated or destroyed except under this chapter.” Since it clearly effects no repeal of other provisions, this general statutory command must be reconciled with other statutory requirements, and must bow to them when they are more specific, as of course it must bow to the Constitution.

      . App. I at 4-10.

      . See note 4 supra (last paragraph).

      . It is not as clear as the Government seems to have assumed that a movant under Rule 59(e) may seek to “alter or amend” a judgment simply because it was erroneous. Cf. Erickson Tool Co. v. Balas Collet Co., 277 F.Supp. 226, 234 (N.D.Ohio 1967) (not the purpose of Rule 59(e) to allow movant to seek “complete reversal of the Court’s judgment”), aff’d 404 F.2d 35 (6th Cir. 1968).

      . See Hutches v. Renfroe, 200 F.2d 337, 341 (5th Cir. 1952); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); 7 Moore Federal Practice 251 (1974).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    NATIONAL RIGHT TO WORK LEGAL DEFENSE and Education Foundation Inc., and National Right to Work Committee, Petitioners, v. Honorable Charles R. RICHEY, District Judge, United States District Court for the District of Columbia, Respondent.
    No. 74-1661.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 11, 1975.
    Decided March 17, 1975.
    Certiorari Denied June 16, 1975.
    See 95 S.Ct. 2631.

      Conrad K. Harper, New York City, for petitioners. Thomas S. Jackson and John L. Kilcullen, Washington, D. C., and Deborah E. Lynch, New York City, entered appearances for petitioners.
    Joseph L. Rauh, Jr., Washington, D. C., for respondent.
    Before McGOWAN, TAMM and ROBINSON, Circuit Judges.
   PER CURIAM:

On May 1, 1973, respondents to this petition for mandamus — ten international unions and their affiliates — brought suit in the District, Court against the National Right To Work Committee, and the National Right to Work Legal Defense and Education Foundation, Inc. (a separate organization affiliated with the Committee). The first cause of action sought declaratory and injunctive relief in respect of alleged violations of Section 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959. Defendants moved to dismiss because (1) there was no allegation that the employers contributing to the Foundation are employers of the employees supported by it, and (2) the Act does not confer on plaintiffs a right to enforce, through an independent action under Section 102, the provisions of Section 101(a)(4). On October 24, 1973, the District Court denied the motion to dismiss, ruling against the jurisdictional claim, but reserving the determination of whether defendants had received contributions from “interested employers” until further evidence should be adduced. 366 F.Supp. 46 (D.D.C.1974). The District Court thereafter denied defendants’ request for certification of an interlocutory appeal under 28 U.S.C. § 1292(b).

Plaintiffs sought to discover the names of all business contributors to the Foundation in 1972. When this was resisted on constitutional grounds, plaintiffs narrowed their request, and filed a motion to compel disclosure. Defendants resisted in a series of memoranda in which they raised a number of statutory and constitutional issues, not all of which were strictly relevant to the discovery motion, and not all of which are repeated here. On June 5, 1974, the District Court granted the motion to compel disclosure, and on June 20 it denied certification of certain issues under 28 U.S.C. 1292(b), staying its order of June 5 until June 25 to allow defendants time to seek review in this court. On June 27, 1974, defendants filed an appeal and motion for stay in this court. The appeal was dismissed on June 28 for lack of jurisdiction, and certiorari was denied by the Supreme Court on January 27, 1975. The petition for mandamus and stay was filed on June 28, 1974 and on that same date this court stayed the District Court’s order pending decision on the petition.

The petition asks this court to (1) vacate the order compelling discovery, and (2) dismiss the first cause of action (a) for lack of jurisdiction over the subject matter, or (b) because of the asserted unconstitutionality of the second proviso to Section 101(a)(4). It would appear that this court is being asked to rule on the following questions:

(1) Does Section 102 give the District Court jurisdiction to entertain a suit by a union to enforce the provisions of Section 101(a)(4)? [In his decisions of October 24, 1973 and June 5, 1974, the district judge ruled that it did].
(2) Would a prohibition on financial contributions to the Foundation violate the First Amendment rights of employer-contributors ?
(3) Is the definition of “interested employer” restricted to the immediate employer of union-member parties? [The district judge does not appear to have made a final ruling on the definition of “interested employer,” but he implicitly held that it is something broader than the immediate employer].
(4) Do the restrictions of Section 101(a)(4) apply only to suits brought by union members to protect rights under Title I of the Act? [The district judge ruled on June 5 that Section 101(a)(4) applies to more than Title I suits].
(5) Was the order compelling disclosure either appropriate or constitutional? [On June 5, 1974 the District Court found that the information sought “goes to the heart of this litigation” and that plaintiffs had “demonstrated good cause for obtaining the necessary information.” On June 20, he found that “there is no other reasonable way for Plaintiffs to obtain the information sought in the subject interrogatories and discovery process,” and stated that “in light of the Court’s findings and the recent decision of the Court of Appeals for this Circuit in Carey v. Hume [160 U.S.App.D.C. 365, 492 F.2d 631, petition for cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974)], it is clear that Plaintiffs are entitled to the material they seek, notwithstanding Defendants’ assertion of First Amendment rights to withhold the information.”]

The Supreme Court in the recent past has on occasion unmistakably enlarged the area in which mandamus may be suitably employed. It is equally clear, however, that mandamus remains, in that Court’s contemplation, an extraordinary remedy, to be used in the discretion of the issuing court only where essential in the interest of justice, and not in derogation of the orderly processes of appeal. The issue that we must decide is whether mandamus is appropriate in the instant case. For the reasons stated below, we hold that mandamus is neither necessary nor appropriate.

This court has several times in recent years spoken to the principles governing the issuance of the writ. See, e. g., Colonial Times, Inc. v. Gasch, 166 U.S.App. D.C. -, 509 F.2d 517 (1975); Donnelly v. Parker, 158 U.S.App.D.C. 335, 486 F.2d 402 (1973); Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969). We do not repeat those discussions here, but, taking them into account, demonstrate why none of the five alleged trial court errors are appropriate for resolution by mandamus.

1. Jurisdiction under Section 102.

Petitioners allege that the District Court erred in refusing to rule that plaintiffs could not maintain this action as an affirmative suit. As the Seventh Circuit recognized in International Brotherhood of Electrical Workers, Local 336 v. Illinois Bell Telephone Company, 496 F.2d 1, 3 (7th Cir. 1974), the instant case is the first to address this point, and the issue is not an easy one. Even if the district judge’s finding of jurisdiction should ultimately be held to be erroneous, his determination that jurisdiction does exist is not the clear usurpation of judicial power traditionally required for the issuance of mandamus. As the Supreme Court said in Ex parte Chicago, R. I. & Pac. Ry., 255 U.S. 273, 275, 41 S.Ct. 288, 289, 65 L.Ed. 631 (1921):

There is a well-settled rule by which this court is guided upon applications for a writ-'of prohibition to prevent a lower court from wrongfully assuming jurisdiction of a party, of a cause, or of some collateral matter arising therein. If the lower court is clearly without jurisdiction, the writ will ordinarily be granted . . .. If, however, the jurisdiction of the lower court is doubtful, Ex parte Muir, 254 U.S. 522 [41 S.Ct. 185, 65 L.Ed. 383]; . or if the the complaining party has an adequate remedy by appeal or otherwise, Ex parte Tiffany, 252 U.S. 32, 37 [40 S.Ct. 239, 64 L.Ed. 443]; Ex parte Harding, 219 U.S. 363 [31 S.Ct. 324, 55 L.Ed. 252, 37 L.R. A.[N.S.] 392]; the writ will ordinarily be denied.

Nor is this a case such as Ex parte Crane, 30 U.S. (5 Pet.) 190, 8 L.Ed. 92 (1831) or Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1925), in which denial of mandamus will reduce or eliminate effective appellate scrutiny. It is unquestioned that review of the jurisdiction question will be fully available on appeal from a final judgment. See Ex parte Chicago, R.I. & Pac. Ry., supra, In re Atlantic City RR, 164 U.S. 633, 17 S.Ct. 208, 41 L.Ed. 579 (1897). See also Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947).

The district judge’s decision on the Section 102 question does not show any persistent or deliberate disregard of limiting rules such as might bring the case within the ambit of “supervisory” mandamus. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940) (per curiam); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927).

Although “advisory” mandamus, which may issue to clarify novel and important questions of law, might seem relevant, the cases on that subject authorize such mandamus only where the decision will serve to clarify a question that is likely to confront a number of lower court judges in a number of suits before appellate review is possible, as, for example, where the district judges are in error, doubt, or conflict on the meaning of a rule of procedure. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Colonial Times Inc. v. Gasch, supra; United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969), vacated as moot, 397 U.S. 93, 90 S.Ct. 817, 25 L.Ed.2d 77 (1970). This is not such a case.

Finally, it cannot be said that mandamus is appropriate here for any weighty equitable reason, such as interference with foreign policy, Ex Parte Peru, 318 U.S. 578, 587, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); the possibility that the question will for practical rather than legal reasons evade review, cf. Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918); interference with basic principles of federalism, Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1925); interference with and irreparable injury to a clear congressional plan, United States Alkali Export Ass’n. v. United States, 325 U.S. 196, 203-204, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945); or unnecessary and unseemly interference with a coordinate branch of government, Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700, 707 n. 21 (1973).

The Section 102 jurisdictional question is clearly one that can be appropriately and adequately dealt with through the normal channels of appellate review. In the absence of a certification under 1292(b), which was denied here, this question must await final judgment and review under 28 U.S.C. 1291.

2. The Constitutionality of Restricting Foundation Activities.

The Foundation’s argument on this question appears to rest on their assertion that they are a neutral group, not a front for “interested” employers, and that therefore they come within the protections afforded by N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), and United Mine Wrks. v. Illinois State Bar Ass’n., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967).

We do not understand petitioners to argue that Congress may not prohibit direct financing by an interested employer through a sham or cover entity. Their^j argument rather must rest on their assertion that they are a neutral body, and the constitutional question they present thus cannot be decided without a determination of what type of organization the Foundation is in fact. Any review or determination of the constitutional issue must await development in the trial court of the factual context. See Borden’s Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281 (1934); Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).

3. The Definition of “Interested Employer”.

Petitioners argued to the District Court that “interested employer” means only the immediate employer of the union member whose suit is being financed. They asserted that a final definition in the abstract was necessary because, if petitioners’ definition were accepted, alternative means of discovery — deposing the immediate employers in the various suits financed by the Foundation — would be required under Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 631, cert. dismissed 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974). Petitioners inform this court that “the term ‘interested employer’ in the proviso to § 101(a)(4) is not defined in the statute and has not been authoritatively interpreted by the courts.” Petition at 13 n. 16. In ordering discovery,- the district judge implicitly ruled that there is a likelihood that “interested employer,” when viewed in a fully developed factual context, may be something broader than the immediate employer of the suing union member. A definitive ruling on the proper interpretation was withheld however, pending development of a factual context.

In so far as plaintiffs seem to assert that at least some immediate employers are involved (see Complaint para. 12), a mandamus compelling petitioners’ interpretation would not strip the district court of jurisdiction. Even were such an allegation not present, possible error in • the adoption of a “line of business” or “contract with the union” definition would not constitute clear error in asserting jurisdiction. See Chicago, R.I. & Pac. Ry., supra. Thus traditional mandamus is not appropriate. No deliberate avoidance of applicable rules or holdings is evident such as would justify supervisory mandamus — indeed, petitioners concede that this is a novel question. Petitioners rely principally on the concept of advisory mandamus in regard to this question, arguing that it is novel, and that it is of extreme importance because j it will determine whether the dis-I covery — and consequent alleged First L_Amendment violations — goes forward in the manner ordered. The question is not, however, one likely of significant repetition prior to effective review, such as is required for advisory mandamus. Nor is there any compelling equitable reason, for, as will be discussed below, the discovery order may be reviewed in connection with a contempt citation, and that review will be able to address the argument that the order was unjustified because premised on an erroneous definition of “interested employer”.

4. The Scope of Section 101(a)(4).

m Petitioners further seek to have us rule that the restrictions of Section 101(a)(4) apply only to suits brought to protect rights granted by Title I of the Act. All of our analysis with regard to the supervisory, advisory, and equitable considerations of the Section 102 and “interested employer” claims apply here. In addition, plaintiffs informed us at oral argument that some of the Foundation-supported suits in fact involve Title I claims. Thus a ruling on this question, as with the “interested employer” question, would not remove jurisdiction from the District Court.

5. The Discovery Order. i~ — -

The discovery order in question here is clearly within the district court’s jurisdiction to entertain, Carey v. Hume, supra. It thus does not come within the “clear usurpation of judicial power” concept of traditional mandamus. Nor is there any showing, relevant to our supervisory function, that the district judge deliberately or persistently disobeyed any order or rule of this court, see Will v. United States, supra, 389 U.S. at 100, 88 S.Ct. 269, La Buy v. Howes Leather Co., supra. Indeed, the district judge stated his judgment to be that the order was properly entered under the principles identified in Carey.

Advisory mandamus is inappropriate, for Carey has set forth all of the “advice” necessary. As the Supreme Court stated in Schlagenhauf v. Holder, supra, 379 U.S. at 112, 85 S.Ct. at 239:

This is not to say, however, that, following the setting of guidelines in this opinion, any future allegation that the District Court was in error in applying these guidelines to a particular case makes mandamus an appropriate remedy. The writ of mandamus is not to be used when ‘the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.’ Parr v. United States, 351 U.S. 513, 520 [76 S.Ct. 912, 917, 100 L.Ed. 1377]; see Bankers Life & Casualty Co. v. Holland [346 U.S. 379, at 382, 74 S.Ct. 145, 98 L.Ed. 106],

Petitioners’ best argument is that entry of the order will effectively deny adequate review because the harm feared — disclosure — will be irremediable. Petitioner cites for this proposition Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d by an equally divided court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433, rehearing denied, 401 U.S. 950, 91 S.Ct. 917, 28 L.Ed.2d 234 (1971); Metros v. United States District Court, 441 F.2d 313 (10th Cir. 1970); Hartley Pen Co. v. United States District Court, 287 F.2d 324 (9th Cir. 1961), and United States v. Hemphill, 369 F.2d 539 (4th Cir. 1966).

Subsequent to those cases, however, in United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), the Supreme Court strongly reaffirmed its decisions in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), and Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906), to the effect that a subpoena or order to disclose information is not a final order even though the resisting party must subject himself to contempt in order to obtain review under 28 U.S.C. 1291. The Supreme Court in United States v. Alexander, supra, and this court in United States v. Anderson, 150 U.S. App.D.C. 336, 464 F.2d 1390 (1972), recognized that this principle extends even to assertion of constitutional privilege.

The holding in Ryan indicates (by an analogy approved by the Supreme Court, see Roche v. Evaporated Milk Ass’n., supra, 319 U.S. at 30, 63 S.Ct. 938 (citing Cobbledick as providing guidance for mandamus)) that mandamus is neither necessary nor appropriate in the instant case, since the order may be challenged through disobedience. Ryan further noted that “[o]nly in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims have we allowed exceptions to this principle.” 402 U.S. at 533, 91 S.Ct. at 1582, citing DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) (reviewing a denial of a motion for return of seized property where there was no criminal prosecution pending against the movant), and Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918) (where the custodian of the property to be produced was the court clerk, who “could hardly have been expected to risk a citation for contempt in order to secure Perlman an opportunity for judicial review.” Ryan, supra, 402 U.S. at 533, 38 S.Ct. at 1582).

It is possible that there may arise situations involving certain types of third party custodians or other persons who cannot be expected to risk contempt, such as would justify mandamus. Petitioners, however, have made no representations to us, in their papers or at oral argument, that they are circumstanced as was the court clerk in Perl-man.

In the instant case, petitioners have repeatedly stressed to this court that they are extremely close in principle to the interests successfully asserted in N.A.A.C.P. v. Button, and that they relate to their contributors as the N.A.A. C.P. does to its members. We note further that the N.A.A.C.P. was repeatedly willing to subject itself to the risk of either criminal conviction or criminal contempt in order to challenge various orders compelling it to disclose its membership lists. See Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963) (criminal contempt); N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (conviction); Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960) (conviction); N.A.A. C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.E.2d 1488 (1958) (criminal contempt). We have no reason to believe that subjecting petitioners to the requirements of Ryan, supra, will result in an effective elimination of meaningful appellate review.

The petition is denied, and the stay entered by this court on June 28, 1974 is vacated.

It is so ordered.

      - ' A claim was also made for compensatory and exemplary damages. A second cause of action was for declaratory judgment and injunction to force defendants to file reports under § 203(b)(1) of LMRDA, and for exemplary damages. In the petition for mandamus now before us, defendants ask only vacation of a discovery order and dismissal of the first cause of action. Insofar as our decision on the discovery order does not in this case depend on its relation (if any) to the second cause of action, the content or status of the second cause of action is of no present relevance.

      . 29 U.S.C. § 411(a)(4). That statute, which generally protects the right of a union member to institute legal proceedings against the union or its officers, contains a proviso that “no interested employer or employer association shall directly or indirectly finance . . ” any such proceeding.
      Section 102 (29 U.S.C. § 412) provides that any person whose rights have been infringed in this respect may sue in the federal district court for appropriate relief.

      . In addition to finding jurisdiction as to the first cause under Section 102, the district judge found that he had jurisdiction over the second cause under 28 U.S.C. § 1331(a), and implied that jurisdiction under that section would also be available for the first cause. See 366 F.Supp. 46, 48 n. 1 (D.D.C.1974). Jurisdiction over the second cause under Section 1331(a) is not challenged here.

      . The revised request sought the amounts contributed to the Foundation by the 116 persons listed as on its business advisory committee, the names of the 37 companies who gave more than $500 in 1972, and the names of 37 companies drawn at random from those contributing between $100 and $500 in 1972.

       At the same time the court directed that responses to the mandamus petition be filed by July 8. Mandamus matters are handled within the context of the motions procedures of this court, which differ significantly from those applicable to direct appeals. Over and above the time normally required for a preliminary examination of a matter of this consequence, there was an inordinate, albeit inadvertent, delay in scheduling the matter for hearing.

      . See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). See generally, Note, Supervisory and Advisory Mandanjus Under the All Writs Act, 86 Harv.L.Rev. 595 (1973).

      . Nor is it clear that a contrary ruling would divest him of jurisdiction. See note 3 supra.

      . Three of these cases involved circumstances in which the party against whom the order was issued was not the party injured by disclosure and might not be expected to risk contempt to challenge the order (see discussion in text and note at note 6 infra). In Harper & Row, the attorney-client privilege was involved, with the documents evidently in the control of the attorneys; in Metros, the information was the name of an informer (disclosure being dangerous to the infomer) which was in the knowledge of police officers; in Hartley Pen, the disclosure ordered was of a trade secret leased to the plaintiff (against whom the order was issued). In addition, in Hartley Pen, the court explained at length why it believed mere resistance to the order would be unlikely to ensure any sort of order that would be reviewable under the final judgment rule. Without ruling on the validity of the above determinations that mandamus might issue, we find that no such special circumstances exist here.
      United States v. Hemphill involved clearly unnecessary embarrassment to a co-ordinate branch, a circumstance traditionally recognized as warranting special treatment, see Nixon v. Sirica, supra. The Fourth Circuit further stated, however: “We hold that any litigant, private individual or public official, is entitled to a writ of mandamus to avoid an appearance to show cause why he should not be held in contempt of court when the underlying order of the Court is clearly erroneous and the refusal to comply with it has been both formal and respectful.” 369 F.2d at 543. To the extent that this holding is in conflict with the subsequent Supreme Court decision in Ryan, we decline to follow it.

      . This may be the underlying question, as to which we intimate no opinion, in the current split of authority on whether disclosure in alleged violation of the attorney-client privilege may be reviewed on mandamus. Compare Harper & Row Publ. Inc. v. Decker, supra, with International Business Machine Corp. v. United States, 480 F.2d 293 (2d Cir. 1973). See also discussion in note 8 supra.


author: PER CURIAM. PER CURIAM: MacKINNON, Circuit Judge

text:
    ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH, Appellant, v. NATIONAL MEXICAN AMERICAN ANTI-DEFAMATION COMMITTEE, INC., et al.
    No. 74-1508.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 10, 1975.
    Decided April 7, 1975.

      Rodney F. Page, Washington, D. C., with whom David A. Brody, Washington, D. C., was on the brief, for appellant.
    No brief was filed and no appearance was entered for appellees.
    Before FAHY, Senior Circuit Judge, and MacKINNON and ROBB, Circuit Judges.
   Opinion

PER CURIAM.

Dissenting opinion by Circuit Judge MacKINNON:

PER CURIAM:

Appellant filed a complaint in the District Court to enjoin appellee from retaining or using in its corporate name or otherwise the term and phrase “Anti-Defamation Committee”, and for related relief. Trial was held by the District Court, as in equity, without a jury. At the conclusion of appellant’s evidence, the court, on appellee’s motion, dismissed the complaint.

The principal basis for appellant’s claim of right to the injunctive relief sought was that since its organization in 1913 under the name Anti-Defamation League of B’nai B’rith to combat racial, ethnic, and religious prejudice and discrimination, it has acquired a unique and valuable property right in the phrase “anti-defamation” which has come to be identified with it by way of secondary meaning. It sought protection against the use by appellee of “Anti-Defamation Committee” as part of its name in carrying out its own laudable purposes.

The evidence led the trial court at the conclusion of the hearing to state:

I think the evidence is clear that there is a proprietary interest of the sort, a secondary meaning in Anti-Defamation League that the plaintiff has acquired.

In the court’s filed Conclusions of Law, however, it was held:

The evidence fails to establish that the terms “anti-defamation” or “anti-defamation league” have acquired a secondary meaning in the minds of the general public or any relevant portion thereof.

With all respect, we think the record clearly supports the earlier position of the trial court. The coined term “anti-defamation” originated with, and for many years prior to appellee’s incorporation had earned in the public mind, a definite and especially close association with the activities of appellant. The evidence established a secondary meaning of “anti-defamation league” which tied that concept to appellant. A like conclusion was reached by the Supreme Court of New York in the cases of Anti-Defamation League of B’nai B’rith v. American Italian Anti-Defamation League, Inc., 54 Misc.2d 830, 283 N.Y.S.2d 828 (1967) and Anti-Defamation League of B’nai B’rith v. Arab Anti-Defamation League, 72 Misc.2d 847, 340 N.Y.S.2d 532 (1972).

The court in our case also found that the evidence adduced by appellant failed to demonstrate such a likelihood of confusion on the part of the general public, or relevant portions thereof, as distinct from an occasional misunderstanding and mistaken delivery of mail, as to justify the relief sought by appellant. In this respect too we are constrained to differ with the District Court. Eleven instances which we think could quite reasonably be found to be actual confusion were placed in evidence. Moreover, the use by appellee of “Anti-Defamation Committee” in aid of its identification is signally conducive to confusion with “Anti-Defamation League.” The qualifying words in appellee’s name, “National Mexican American” do not avoid the likelihood of confusion. The nature of the organization is indicated by its use of “Anti-Defamation” in its name, so that the qualifying words are likely to lead the public, or relevant portions of it, to consider appellee a branch of the old and well-known Anti-Defamation League of B’nai B’rith. We also bear in mind that proof of actual confusion is not essential. Probability is sufficient. See, Anti-Defamation League of B’nai B’rith v. American Italian Anti-Defamation League, Inc., supra, 283 N.Y.S.2d at 834; Anti-Defamation League of B’nai B’rith v. Arab Anti-Defamation League, supra, 340 N.Y.S.2d at 544; and see, Missouri Federation of the Blind v. National Federation of the Blind of Missouri, Inc., 505 S.W.2d 1, 6 (Mo.App.1973).

Concluding that the plaintiff made a prima facie case so that the motion to dismiss should not have been granted, we reverse and remand the case for further proceedings not inconsistent with the views herein expressed.

It is so ordered.

MacKINNON, Circuit Judge

(dissenting):

I would affirm on the ground that on its face the name “National Mexican-American Anti-Defamation Committee” had sufficient distinguishing characteristics that confusion with “Anti-Defamation League of B’nai B’rith” was not likely to result where “ordinary [people used] ordinary caution,” McLean v. Fleming, 96 U.S. 245, 251, 24 L.Ed. 828 (1877). I do not disagree with the conclusion that the term “Anti-Defamation League” has acquired a secondary meaning referring to appellant, but the issue before us is whether the names of appellant and appellee are sufficiently alike that there is a likelihood of confusion on the part of the general public or some relevant portion thereof. The names speak for themselves in refutation of appellant’s position on this issue. Of the eleven instances of “actual confusion” cited by the majority, the six news accounts show the consistent use of the identifying term “Mexican-American” when appellee is mentioned, and the remaining instances are more likely isolated examples of individual carelessness than evidence that confusion is probable.

The two New York trial court decisions cited by the majority are of questionable value as precedents. Anti-Defamation League of B’nai B’rith v. American Italian Anti-Defamation League, 54 Misc.2d 830, 283 N.Y.S.2d 828 (Sup.Ct. 1967), involved the granting of a motion for temporary injunction in a case which was apparently settled before the court could hear the merits of the allegations of confusion. Anti-Defamation League of B’nai B’rith v. Arab Anti-Defamation League, 72 Misc.2d 847, 340 N.Y.S.2d 532 (Sup.Ct.1972), was a default judgment entered against an association which had failed to appear to defend on the merits. In each case the enjoined names had more elements in common with appellant’s name than does the name sought to be enjoined in the instant case. Furthermore, the Arab group had adopted the symbol “AADL” which was nearly identical to appellant’s symbol.

The majority opinion states that the “nature of the organization is indicated by its use of ‘Anti-Defamation’ in its name” and asserts that the public will therefore tend to consider appellee to be a branch of appellant. However, the mere fact that an organization is the first to engage in a particular field of activity should not enable it to prevent any other organization from indicating to the public that it has similar interests by using a term which is descriptive of that activity. The important consideration is whether when the names of the organizations are considered in their entirety, confusion is probable. Since I do not believe that the names of appellant and appellee are likely to cause confusion, I would affirm the order of the District Court.


author: JUSTICE, District Judge:

text:
    UNITED STATES of America v. Linda AGURS, Appellant. UNITED STATES of America v. Linda V. AGURS, Appellant (two cases).
    Nos. 72-2072, 73-1956 and 74-1542.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 25, 1974.
    Decided April 3, 1975.
    Cornish F. Hitchcock, with whom Sherman L. Cohn, Wshington, D. C. (appointed by this Court), and Steven M. Pavsner,* were on the brief, for appellant. Edwin J. Bradley, Washington, D. C. (appointed by this Court), also entered an appearance for appellant.
    Gerard F. Treanor, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James F. McMullin, Asst. U. S. Attys., were on the brief for appellee. Harold H. Titus, Jr., U. S. Atty. at the time the record was filed and John O’B Clarke, Jr., Asst. U. S. Atty., also entered appearances for appellee in No. 72 — 2072.

      Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and JUSTICE,, United States District Judge for the Eastern District of Texas.

       Entered appearances as student counsel pursuant to Rule 20 of the General Rules of this Court.

       Sitting by designation pursuant to 28 U.S.C. § 292(d).

   Opinion for the Court filed by District Judge JUSTICE.

JUSTICE, District Judge:

The appellant, Linda Agurs, appeals from her conviction for second-degree murder, for which she was sentenced to a term of five to twenty years’ imprisonment. Apart from the issue of self-defense, there was little disagreement between the parties at trial with respect to the facts.

James T. Sewell met his estranged wife for lunch on September 24, 1971. They had planned to travel to New York together that evening, but quarreled during their meeting and parted. Mrs. Sewell’testified that her husband boarded a bus at about 2:45 in the afternoon, and that he was carrying about $360.00 in his pocket.

Sewell and the appellant arrived together at a motel in Northwest Washington about 4:30 on the same afternoon. A motel employee testified that he observed that Sewell was wearing a Bowie knife in a sheath. The two registered as man and wife and departed the lobby for their room. Approximately a quarter hour later, the desk clerk and two other employees heard a woman’s screams emanating from the room occupied by Se-well and the appellant. They forced their way into the room and discovered the two on the bed struggling with a knife — a Bowie knife, as it was later ascertained. The employees separated them and summoned an ambulance for Sewell, who was bleeding. Appellant left the building at the time, but surrendered voluntarily to the police the next day. In the meantime, Sewell died from stab wounds inflicted during the struggle. The most serious wounds were in Sewell’s chest and abdomen, but his arms and hands also exhibited cuts and slashes suggesting an attempt to repel an attack.

The appellant was indicted for second-degree murder. At the trial, it was the theory of the prosecution that the appellant was a prostitute whom Sewell had encountered in the course of the afternoon, and that she brought him to the motel in the course of plying her trade. On this theory, the appellant, dissatisfied with the amount Sewell paid her for her services, rummaged through his clothing while he was in a bathroom down a hall from their room and removed the money she found there. Sewell, returning, caught her in the act and attempted to retrieve his money, whereupon she stabbed him with the knife, which also lay among his clothes. In support of this scenario, the prosecution cited testimony that a motel employee had seen the appellant check into the motel with men on other occasions. In addition, the witnesses to the struggle agreed that the appellant was fully dressed but that Se-well was clad only in his trousers, and that the knife was pointed at his chest during the part of the struggle that they observed. There was money neither in Sewell’s wallet, which was found in the motel room after the incident, nor in his pockets, which were searched at the morgue. Finally, the prosecution stressed the testimony of the nurse who examined the appellant the day after the incident; she found no cuts or wounds on any parts of the appellant’s body.

Appellant’s attorney advanced the contention that she had inflicted the stab wounds in self-defense. He elicited testimony from the motel’s desk clerk to the effect that Mrs. Sewell had appeared at the motel after the incident and told him that Sewell “would use a knife.” Mrs. Sewell denied having made the statement. Counsel for appellant also noted the presence of a pocket knife in Sewell’s pocket when he was taken to the morgue, emphasized the uncontradicted evidence that Sewell had the Bowie knife at the time the pair checked in, and developed from one of the witnesses testimony that Sewell lay atop the appellant during the struggle.

Defense counsel had become aware, during pretrial interviews with witnesses, of the possibility that Sewell might have been arrested or convicted in the past for violent crimes. Before investigating Sewell’s arrest and conviction record, however, he asked the appellant whether she knew of any violent episodes in Sewell’s past; she knew of none. The attorney believed that a decedent’s prior convictions for violent crimes were inadmissible to prove self-defense unless the person accused of the homicide knew of them. To reassure himself, he consulted an older lawyer who had some experience with criminal law; the older lawyer advised him that this view of the law was correct. He thus concluded that a search for Sewell’s prior record would be a waste of time. Counsel also believed, he testified later, that the prosecution would advise him if they knew that Sewell had a criminal record. In any event, none of the evidence presented to the jury at trial suggested that Sewell had ever been arrested for or convicted of a crime of violence.

A month after the appellant was sentenced, defense counsel received a copy of this court’s opinion in United States v. Burks. The Burks opinion noted that this court has “long recognized” that evidence of past violent acts by a deceased is admissible in a homicide case in which the issue of self-defense is raised because “[sjuch evidence is relevant on the issue of who was the aggressor. . . . ” A footnote to that observation admonished that “[i]t bears emphasis . that as to the issue of who was the aggressor it is irrelevant that the defendant did not know about the deceased’s character.” On learning of this long-recognized rule, of which he had been entirely ignorant, counsel became alarmed and immediately sought to discover whether or not Sewell did, in fact, have a criminal record. He went to the United States Attorney’s office and, finding the Assistant who had prosecuted the appellant absent, spoke with one of the other Assistants. The Assistant took appellant’s counsel to a “closed files” room and located the file concerning the prosecution of the appellant. There, close to the front of the folder, they found a paper disclosing that Se-well had been convicted in 1963 for assault and carrying a dangerous weapon and in 1971 for carrying a dangerous weapon. The weapon, in each instance, had been a knife.

Defense counsel immediately filed a motion for new trial on the ground of newly discovered evidence. The trial judge denied the motion, expressing skepticism that “a CDW conviction and a ’63 ADW conviction” would have made any difference in the jury’s conclusions. Being convinced that his misunderstanding of the law had seriously prejudiced the appellant’s plea of self-defense, her counsel later requested to withdraw, in order that the issue of his ineffectiveness could be raised by appellant’s attorney on appeal.

Appellant asserts that her conviction should be reversed on three grounds. First, she contends that the trial judge erred in denying her motion for new trial. Second, she urges that her defense counsel’s failure to bring Sewell’s record of convictions before the jury deprived her of her sixth amendment right to the effective assistance of counsel. Finally, she argues that the prosecution denied her due process of law under the doctrine of Brady v. Maryland, which prohibits “suppression by the prosecution of evidence favorable to an accused.”

It is unquestioned that a prosecutor’s deliberate failure to supply defense counsel with information that tends to exculpate the accused constitutes prosecutorial misconduct meriting reversal of a conviction. Neither party to this appeal has any quarrel with this principle. Nor can there now be any disagreement with the rule of Brady that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Appellee’s first response is that the prosecution was not required to inform appellant’s attorney of Sewell’s record in the absence of a request for such information, and second, that the information was in any event of such small importance in the context of the case that failure to reveal it had no effect on the verdict of the jury.

At the outset, it should be observed that defense counsel’s attempts to request relevant information from the United States Attorney can not categorically be characterized as lacking in diligence. The record reveals that the attorney for appellant appeared at a calendar call shortly after he had been appointed to represent her and indicated that he wished to place a stipulation regarding discovery on the record. The attorneys had encountered no difficulties in agreeing upon discovery procedures and the scope of discovery up to that point; and the trial judge, therefore, suggested to defense counsel that he return to court for formal discovery proceedings only in the event that he experienced difficulty in obtaining the materials that he desired from the office of the United States Attorney. Further, the trial judge commented that, in his experience, the United States Attorney’s office always provided defense counsel with all discoverable material. Defense counsel thereupon assented to the trial judge’s suggestion.

Even supposing that defense counsel’s trusting attitude toward the prosecution, together with his failure to undertake a search for Sewell’s prior criminal record, demonstrates some neglect of his duty to his client, that conclusion does not foreclose further inquiry into the possibility of unfairness to the accused. No clear consensus exists among the courts on the question of whether, in the absence of prosecutorial misconduct, a defense request is necessary to trigger the prosecution’s duty to reveal possibly exculpatory information in its possession. Rather than attempting to formulate universal rules, most courts faced with Brady challenges to convictions have examined various factors in the cases actually before them — including the diligence of defense counsel, the presence or absence -of prosecutorial culpability, and the materiality of the undisclosed evidence — in arriving at their conclusions. When defense counsel has been less than industrious, the prosecution guileless, and the evidence in question of doubtful materiality, the courts have found no due process violation requiring reversal of the conviction because of the mere fact that the prosecution had access to evidence that the defense would have desired. On the other hand, a prosecutor’s willful failure to disclose evidence that is clearly material upon defense counsel’s timely request has always been held to constitute reversible error. The difficult cases, such as the case before the court, fall between the two extremes.

The materiality of undisclosed evidence is a much more significant factor than prosecutorial misconduct or defense negligence. Thus, nondisclosure of evidence that would have been of central importance to the defense had it been available will void a conviction even though the prosecution may have acted in good faith or defense counsel may have failed in his duty of diligence. In Barbee v. Warden, the Fourth Circuit reasoned that “[i]n gauging the nondisclosure in terms of due process, the focus must be on the essential fairness of the procedure and not on the astuteness of either counsel.” In Levin v. Katzenbach, this court held that a conviction obtained while defense counsel is ignorant of important potentially exculpatory evidence cannot be upheld merely because “more able, diligent, or fortunate counsel might possibly have come upon the evidence on his own.” Accordingly, the case was remanded for a determination of whether the undisclosed evidence, if brought to the attention of the jury, “might have led the jury to entertain a reasonable doubt about appellant’s guilt.” Thus, we are constrained to consider the second point advanced by the appellee — that the evidence of Sewell’s prior convictions is insufficiently material for its nondisclosure to require reversal of the appellant’s conviction.

Appellant did not at any time deny that she had been responsible for Se-well’s death or that she had wounded him with his Bowie knife. Her sole defense was her claim that he had initially attacked her with the knife, and that her actions had all been directed toward saving her own life. In a similar situation, the Supreme Court suggested that a prosecutor’s failure to disclose that there was an open penknife in the deceased’s pocket when his body arrived at the morgue would constitute a denial of due process, if the knife would be admissible under the trial court’s customary rules of evidence. In a murder case in which the defendant relied on self-defense, the Oregon Court of Appeals held that the prosecution’s nondisclosure of a deceased’s past violent history denied him due process of law.

Moreover, Sewell’s prior convictions for crimes involving knives seem at least as crucial as non-disclosed evidence which has led to reversals in other cases: e. g., the fact that a prosecution witness has been granted immunity in exchange for his testimony; the statement of a witness to a complicated financial transaction that he had no memory of certain aspects of the transaction; or the circumstance that a prior romantic entanglement existed between a homicide victim and the defendant’s wife. In an analogous situation, the Supreme Court held that suppression of evidence of the sexual escapades of a complaining witness in a rape case in which the issue was whether or not an act of intercourse was consensual denied the accused a fair trial, although the suppression was unintentional on the part of the prosecutor. Further, in United States v. Burks, this court reversed the conviction of a defendant found guilty of murder because the trial court refused to admit evidence of the exact nature of that denied the appellant herein. We there held that “the evidence he sought to introduce was vital to his defense.”

The appellee argues that the convictions are merely cumulative of other evidence that did reach the jury from which it could be inferred that Sewell had a propensity to carry knives and use them aggressively. In particular, it cites the motel employee’s testimony that Mrs. Se-well had told him that Sewell “would use a knife”, the desk clerk’s observation that Sewell was wearing a knife at the time the couple registered, and the testimony of one witness that Sewell was on top of the appellant during the struggle. Some of this evidence was weakened significantly by conflicting evidence. Mrs. Sewell, for example, testified that she never made the statement that the motel employee attributed to her. But the jury would not have been forced to resort to inferences from conflicting or ambiguous evidence in order to believe that Sewell had a proclivity for carrying and using knives if his past history had been revealed to them. The records of his convictions upon pleas of guilty to two knife-related offenses would have constituted undeniable evidence of that trait.

Accordingly, we hold that the evidence withheld by the prosecution in this case is sufficiently material and important to the question of the appellant’s guilt or innocence as to overcome any lack of diligence on the part of appellant’s trial counsel. This decision renders unnecessary any consideration of the appellant’s arguments concerning the trial court’s denial of her motion for new trial and the alleged ineffectiveness of her trial counsel.

Reversed and remanded.

      . The offense is defined by 22 D.C.Code § 2403.

      . 152 U.S.App.D.C. 284, 470 F.2d 432 (1972).

      . Id. at 434.

      . Id. at 434 n. 4.

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, (1963).

      . Id. at 87, 83 S.Ct. at 1196.

      . See, e. g., Napue v. Illinois, 360 U.S. 264, 79 S.ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); United States ex rel. Thompson v. Dye, 221 F.2d 763 (3d Cir.), cert. denied, 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 773 (1955); United States ex rel. Almeida v. Baldi, 195 F.2d 815 (3d Cir. 1952), cert. denied, 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341 (1953).

      . 373 U.S. at 87, 83 S.Ct. at 1196; accord Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . The United States does not contend that the prosecution had no knowledge of Sewell’s pri- or record, and indeed such a contention would almost certainly be unavailing in view of the fact, already mentioned, that the information, when finally discovered by the appellant’s counsel, was in a folder maintained by the office of the United States Attorney. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). This is not to say that the prosecution engaged in deliberate suppression.

      . Among cases that have imposed such a duty in the absence of a request are the following: United States v. Hibler, 463 F.2d 455 (9th Cir. 1972); United States v. Poole, 379 F.2d 645 (7th Cir. 1967); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964); Simms v. Cupp, 354 F.Supp. 698 (D.Or. 1972); Clements v. Coiner, 299 F.Supp. 752 (S.D.W.Va.1969). But see United States v. Keogh, 391 F.2d 138, 147 (2d Cir. 1968), in which Judge Friendly wrote that the court “cannot agree with petitioner that where there has not been deliberate suppression . . the absence of a request is irrelevant.”

      . See United States v. Mayersohn, 452 F.2d 521 (2d Cir. 1971).

      . See, e. g., United States v. Soblen, 301 F.2d 236 (2d Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962); United States v. Fabric Garment Co., 262 F.2d 631 (2d Cir. 1958), cert. denied, 359 U.S. 989, 79 S.Ct. 1117, 3 L.Ed.2d 978 (1959).

      . E. g., United States v. Poole, 379 F.2d 645 (7th Cir. 1967); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964); Evans v. Kropp, 254 F.Supp. 218 (E.D.Mich. 1966).

      . 331 F.2d 842, 846 (4th Cir. 1964). .

      . 124 U.S.App.D.C. 158, 363 F.2d 287 (1966).

      . Id. at 162, 363 F.2d at 291.

      . Id. see Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967).

      . Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993 (1949).

      . State v. Williams, 500 P.2d 722 (Ct.App.Or. 1972).

      . See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . See Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967).

      . See Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).

      . Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967).

      . 152 U.S.App.D.C. 284, 470 F.2d 432 (1972).

      . See generally id. at 289, 470 F.2d at 437 (“Nor is it significant that the appellant had already brought some attention to the child killing [by the deceased] by mentioning it when he testified on his own behalf. While the jury might have discredited his testimony on this issue, it would have had virtually no choice but to believe [the deceased’s wife] if she had taken the stand and testified that [the deceased] had killed their son.”)

      . There is some force to the appellant’s argument that even if the evidence of Sewell’s history might not have affected the jury’s verdict as to guilt or innocence, it might have influenced the jury to consider a verdict finding the appellant guilty of the lesser included offense of manslaughter. See United States v. Burks, 152 U.S.App.D.C. 284, 470 F.2d 432 (1972).


author: WILKEY, Circuit Judge:

text:
    Lawrence MAYNOR, Appellant, v. Rogers C. B. MORTON, Secretary, Department of the Interior.
    No. 73-2109.
    United States Court of Appeals, District of Columbia Circuit.
    Argued 21 Nov. 1974.
    Decided 4 April 1975.

      Thomas N. Tureen, Calais, Me., with whom L. Graeme Bell, III, Washington, D. C., was on the brief for appellant.
    John J. Zimmerman, Atty., Dept, of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., Carl Strass and Anthony S. Borwick, Attys., Dept, of Justice, were on the brief for appellee. Edmund B. Clark, Washington, D. C., also entered an appearance for appellee.
    Before DANAHER, Senior Circuit Judge, WILKEY, Circuit Judge, and JUSTICE, United States District Court Judge for the Eastern District of Texas.

       Sitting by designation pursuant to 28 U.S.C. § 292(d).

   Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

This is an appeal from an order granting summary judgment for the Secretary of the Interior and dismissing the complaint of appellant Maynor. Maynor filed an action for declaratory judgment under 28 U.S.C. §§ 1331 and 2201 to establish his eligibility for benefits under the Indian Reorganization Act (IRA). In addition to the IRA, one other statute is involved, the so-called Lumbee Act of 7 June 1956. Despite the Indian law and lore cited to us by the parties, we think the issue is simply a matter of statutory interpretation. Finding that the District Court erred in granting summary judgment for the defendant Secretary, we reverse and remand to the District Court with instructions to enter the declaratory judgment sought by the plaintiff-appellant Maynor.

1. Background Facts

Maynor is one of some 40,000 Indians who live in and around Robeson County in North Carolina. They are now known as the “Lumbee Indians,” but prior to 1956 they had no tribal name. In 1934 the Indian Reorganization Act (IRA) was passed. The pertinent provision of this comprehensive Act is the clause defining the term “Indian”:

All persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.

Although the IRA was primarily designed for tribal Indians, and neither Maynor nor his relatives had any tribal designation, organization, or reservation at that time, it is clear from the language of the statute that some benefits of the Act were also open to any nonreservation Indian who could prove that he possessed at least one-half Indian blood. Among these benefits was the right to petition the Secretary to establish a reservation for such individuals, which, if granted, would afford them access to a wide range of federal Indian services (as members of a recognized Indian group on a reservation).

Following enactment of the IRA in 1934, plaintiff Maynor and 208 other persons residing in Robeson County petitioned the Secretary for recognition as persons of one-half or more Indian blood. The Department of the Interior sent a team of anthropologists and other specialists to determine the quantum of Indian blood of each applicant. After extensive study, in 1938 a total of only 22 applications including Maynor’s, were approved.

Maynor and the other 21 were informed by the Department that they were “entitled to benefits established by the Indian Reorganization Act. Please note that no other benefits are involved. These people do not obtain tribal status or any rights or privileges in any Indian tribe.” Apparently dissatisfied with the tedious (and only ten percent productive) method of securing Indian status by individual blood and lineage examination, another group of Robeson County Indians (not including plaintiff Maynor) attempted a legislative solution. The result was the Lumbee Act of 7 June 1956,® which provided that the Indians in Robeson and surrounding counties would be known as “Lumbee Indians.” On the recommendation of the Department of the Interior, however, language was included in the Act which provided:

Nothing in this Act shall make such Indians eligible for any services performed by the United States for Indians because of their status as Indians, and none of the statutes of the United States which affect Indians because of their status as Indians shall be applicable to the Lumbee Indians.

From this qualifying clause arises the single problem of this lawsuit.

In Congress’ consideration of the Lumbee Act of 1956 no notice was taken or mention made of the 22 individuals who had been certified in 1938 as Indians under the IRA of 1934. The Federal Government appears to have all but forgotten them when in 1971 the plaintiff Maynor and others of the group of 22 petitioned the Secretary of the Interior to establish a reservation for them as certified Indians. From the content of several letters issued by the Bureau of Indian Affairs, it appears that their request somewhat disconcerted the Department. The ultimate answer of the Department of the Interior, however, was that the 22 individuals were not eligible for benefits under the IRA. This conclusion was based entirely on a legal opinion of the Deputy Solicitor, dated 28 November 1972, to the effect that the clause concerning eligibility for federal Indian services, which the Department had secured as an addition to the Lumbee Act of 1956, terminated the rights which the petitioners had obtained in 1938 by virtue of their certification as Indians of more than fifty percent blood.

II. Statutory Interpretation

On the plain language of the statute, we think the Secretary and his Deputy Solicitor erred. The Interior-inspired clause says, “Nothing in this Act shall make such Indians eligible for any services . . . because of their status as Indians.” To our minds the key phrase is “[n]othing in this Act.” The Secretary argues:

The meaning of the Lumbee Act language could not be more plain. The Lumbee Indians are to receive no special Indian benefits, the purpose of the legislation being solely to recognize one name for these people.

True, the limited purpose of the legislation appears to be to designate this group of Indians as “Lumbee Indians” and recognize them as a specific group. Moreover, Congress was very careful not to confer by this legislation any special benefits on these people so designated as Lumbee Indians. But we do not see that Congress manifested any intention whatsoever to take away any rights conferred on any individuals by any previous legislation.

Plaintiff Maynor is asking for a declaratory judgment of his rights under the Indian Reorganization Act of 1934, pursuant to which he was certified by the Department of the Interior as an Indian because extensive investigation had determined that he met the statutory definition of “Indian,” whether he lived on a reservation or was a member of a tribe. In 1934-38 plaintiff Maynor was not a “Lumbee Indian,” because the Lumbee Indians were not a legally recognized group. He was simply certified as an “Indian,” and it is as such that he seeks a declaratory judgment of his rights.

There is nothing in the background of the Lumbee Act, in the debates, or in the committee reports which would indicate that Congress had any desire to take away any rights from persons such as appellant Maynor who may have been granted such rights by prior legislation. Congress was simply unaware of the existence of 22 persons in the Robeson County area certified by the Department of the Interior as Indians of more than fifty percent Indian blood under the IRA of 1934. Congress, being oblivious of these people and their rights, certainly cannot be supposed to have intended to deprive them of those rights without mention of the subject.

The whole purpose of this final clause of the one paragraph operative portion of the Lumbee Act was simply to leave the rights of the “Lumbee Indians” unchanged. This is the plain import of the Department of the Interior recommendation on the bill:

If your committee should recommend the enaction of the bill, it should be amended to indicate clearly that it [the Act] does not make these persons eligible for services provided through the Bureau of Indian Affairs to other Indians.

If 22 out of the 40,000 persons now known as Lumbee Indians had secured certain rights by special designation in 1938, there is no intent manifest either in the letter of the Department of the Interior or in the final language of the statute to alter those rights.

In the final analysis, the argument of the Secretary rests upon a re-peal by implication, or inadvertence — a position decidedly not favored in the law. In rejecting its application here we find illumination in the recent opinion of Mr. Justice Blackmun in Morton v. Mancari, a decision which was not available to the District Judge when he granted summary judgment for the defendant. There the question was whether the 1972 Equal Employment Opportunity Act repealed by implication the Indian preference of the Indian Reorganization Act of 1934. A three-judge District Court had held that the Indian preference was repealed, but the Supreme Court said,

Appellees encounter head-on the “cardinal rule . . . that repeals by implication are not favored.” [Cites] They and the District Court read the congressional silence as effectuating a repeal by implication. There is nothing in the legislative history, however, that indicates affirmatively any congressional intent to repeal the 1934 preference. .
This is a prototypical case where an adjudication of repeal by implication is not appropriate.
In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . .. The intention of the legislature to repeal ‘must be clear and manifest.’ ”

Here, as in Mancari, the Secretary of the Interior was not at liberty to pick and choose among Congressional enactments. If he had two Acts upon the same subject, he could have given effect to both, as we do here, by simply recognizing that whatever rights were acquired by plaintiff Maynor and the other 21 — who were certified by the Department of the Interior in 1938 as “Indians” under the IRA of 1934 — were not abrogated when in 1956 a group of plaintiff’s neighbors secured legislative recognition for the entire group of “Lumbee Indians,” with the proviso that this recognition in itself would not entitle them to any Indian benefits. Certainly no implication of a repeal of the certified Indian status of Maynor arises by such legislation conferring a tribal name on a group of North Carolina Indians, even if the group included the appellant.

The whole purpose of the clause, from whence arises the issue in this case, was simply to make sure that a simple statute granting the name “Lumbee Indian” to a group of Indians, which hitherto had not had such designation legally, was not used in and of itself to acquire benefits from the United States Government. Plaintiff here is not seeking a declaration of eligibility for any benefits by virtue of his being a “Lumbee Indian” under the 1956 Act. He predicates his claim to a declaration of rights on his certification by the same Department of the Interior in 1938 that he is an Indian of more than fifty percent blood, and therefore an Indian as defined in the IRA of 1934. It is under this Act of 1934 that he lays claim to whatever rights he might have. We think the plaintiff-appellant has made his case for declaratory judgment, and we therefore remand to the District Court for entry of a judgment in accordance therewith.

Reversed and remanded.

      . 25 U.S.C. § 461 et seq. (1970).

      . Pub.L.No. 84-570, 70 Stat. 254.

      . This makes unnecessary any consideration of the question whether the subsequent statute could lawfully have divested Maynor of any rights conferred on him by the IRA of 1934 and the Department of the Interior certification as an “Indian.”

      . 25 U.S.C. § 479.

      . Only recently in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the Supreme Court referred to “the sweeping Indian Reorganization Act of 1934,” and stated that “the overriding purpose of that particular Act was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.” Id. at 542, 94 S.Ct. at 2478.

      . We find singularly unpersuasive the Government’s argument that the IRA cannot constitutionally confer benefits on non-reservation Indians. (Government Br. at 7-9.) Not only does this contention run counter to the position taken by the Secretary of the Interior in 1938 (see text accompanying note 8 Infra), but at no point was it raised by the Department during its two-year consideration of the appellant’s petition (see text accompanying note 11 infra) or by the Government in the District Court proceedings. Thus, even if we found merit in the argument, raised for the first time on appeal, we would not consider it in reaching our decision.
      It should be'noted that as little as one-quarter Indian blood suffices to confer many IRA benefits to persons living on a reservation.

      . This and other benefits available under the IRA to non-reservation Indians were first detailed in a memorandum, dated 8 April 1935, to the Commissioner of Indian Affairs from then Assistant Solicitor Felix S. Cohen, who later authored the treatise Federal Indian Law (1942). Appendix at 29-30.

      . Appendix at 20. Fn. 2.

      . The entire text of the Act reads:

        Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Indians now residing in Robeson and adjoining counties of North Carolina, originally found by the first white settlers on the Lumbee River in Robeson County, and claiming joint descent from remnants of early American colonists and certain tribes of Indians originally inhabiting the coastal regions of North Carolina, shall, from and after the ratification of this Act, be known and designated as Lumbee Indians of North Carolina and shall continue to enjoy all rights, privileges, and immunities enjoyed by them as citizens of the State of North Carolina and of the United States as they enjoyed before the enactment of this Act, and shall continue to be subject to all the obligations and duties of such citizens under the laws of the State of North Carolina and the United States. Nothing in this Act shall make such Indians eligible for any services performed by the United States for Indians because of their status as Indians, and none of the statutes of the United States which affect Indians because of their status as Indians shall be applicable to the Lumbee Indians.
      Sec. 2. All laws and parts of laws in conflict with this Act are hereby repealed.
      70 Stat. at 255.

      . 70 Stat. at 255.

      . Appendix at 33-38.

      . Government Br. at 18.

      . H.R.Rep.No. 1654, 84th Cong., 2d Sess. (1956), U.S.Code Cong. & Admin.News 1956, p. 2715.

      . This view is buttressed by the dialogue on the floor of the House between the sponsor of the bill, Representative Carlyle of North Carolina, and Representative Ford of Michigan:
      The SPEAKER. Is there objection to the present consideration of the bill?
      Mr. FORD. Mr. Speaker, reserving the right to object, I should like to ask the author of the bill, the gentleman from North Carolina, whether or not this bill, if enacted, would in any way whatsoever commit the Federal Government in the future to the furnishing of services or monetary sums?
      Mr. CARLYLE. Mr. Speaker, I am happy to say that the bill does not provide for that nor is it expected that it will cost the Government one penny.
      Mr. FORD. There is no obligation involved, as far as the Federal Government is concerned, if this proposed legislation is approved?
      Mr. CARLYLE. None whatsoever.
      Mr. FORD. It simply provides for the change of the name?

      Mr. CARLYLE. That is all.

      102 Cong.Rec. 2900 (1956).
      To explain the addition of the last clause the Senate Committee stated in its report, “The committee has amended the bill to clearly indicate that the Lumbee Indians will not be eligible for any services provided through the Bureau of Indian Affairs to other Indians.” (S.Rep.No. 2012, 84th Cong., 2d Sess. (1956), U.S.Code Cong. & Admin.News 1956, p. 2715. This shorthand statement of the purpose of the amendment, of course, does not contain the introductory clause of the amending language, “Nothing in this Act shall make

      . 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974).

      . Id at 549-51, 94 S.Ct. at 2482.