text:
    Dan ANDRADE (1) and Joe Carrillo (2), Individually, and on behalf of all other persons similarly situated v. The UNITED STATES. PITT RIVER TRIBE et al. v. The UNITED STATES.
    Nos. 347-72, 47-73.
    United States Court of Claims.
    Decided Oct. 17, 1973.
    George Forman, Escondido, Cal., attorney of record for plaintiffs (No. 347-72); Bruce R. Greene, Berkeley, Cal., Aubrey Grossman, San Francisco, Cal., David Getches, and John E. Echo-hawk, Boulder, Colo., of counsel.

      Aubrey Grossman, San Francisco, Cal., attorney of record for plaintiffs (No. 47-73); Bruce R. Greene, Berkeley, Cal., David Getches, John E. Echohawk, Boulder, Colo., and George Forman, Escondido, Cal., of counsel.
    Ralph A. Barney, Washington, D. G., with whom was Asst. Atty. Gen., Wallace H. Johnson, for defendant (in both cases).
    Before CO WEN, Chief Judge, and SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.
    ON DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT
   PER CURIAM:

In September of 1972, attorneys for the above petitioners attempted to file in this court petitions which sought, in effect, to overturn a judgment of the Indian Claims Commission, 13 Ind.Cl. Comm. 369 (1964). Petitioner Andrade sought relief under 28 U.S.C. § 1491 for breach of a fiduciary duty on the part of the United States. That petition (No. 347-72) was accepted for filing by the clerk of the court on September 11, 1972. Petitioner, Pitt River Tribe, attempted a belated appeal of the Indian Claims Commission judgment. This petition did not meet the requirements set out in the Rules of the court and was not accepted for filing. After the Pitt River Tribe, petitioner, failed in an attempt to have the Commission reopen its proceedings, it filed an amended petition in this court which included a prayer for relief under 28 U.S.C. § 1505. This petition was accepted for filing as to relief under § 1505 only, on February 2, 1973 (No. 47-73). See order of February 2, 1973. A request for consolidation of the two petitions was denied without prejudice by trial judge Schwartz on March 2, 1973. The Government has moved for summary judgment in both cases. The two cases will be dealt with in this one opinion because of the similarity of the claims made, and relief sought.

The case before the Commission involved nine dockets (Nos. 31, 37, 80, 80-D, 176, 215, 333 and 347). All were claims for compensation on behalf of various, groups of California Indians. In all of the dockets the Commission rendered interlocutory judgments in favor of the Indians as to title and dates of taking. Thereafter, proceedings before the Commission were suspended while the Justice Department and the attorneys for the Indians entered into negotiations on a possible settlement. On July 31, 1963, a proposed settlement was reached whereby the Indians would consolidate all claims and release them in return for the sum of $29,100,000. This was agreed to, subject to approval by the Indians and the Bureau of Indian Affairs. A notice of the proposed settlement was sent to all those affected Indians enrolled under an Act of May 18, 1928, 45 Stat. 602. Though a vociferous minority opposed it, the settlement was approved in a series of votes and mail ballots by a majority of the Indians and thereafter, on May 7, 1964, by the Commissioner of Indian Affairs. Opposition was particularly active in the Pitt River Tribe which, however, voted approval by a small margin. In other tribes, approval was by large margins. The Commission then held hearings on a motion for entry of final judgment on the above dockets and on July 20, 1964, approved the settlement and with extensive findings of fact issued a final judgment. 13 Ind.Cl.Comm. 369. The judgment was reported to Congress and sums were appropriated for the payment of the judgment. Act of October 7, 1964, 78 Stat. 1033.

Petitioner Andrade asserts that the United States had at the time of the above proceedings and continues to have a fiduciary duty toward him because he is an Indian and specifically as the result of the Treaty of Guadalupe Hidalgo, 9 Stat. 922, February 2, 1848. Petitioner alleges that the United States breached its duty by allowing attorneys from the Department of Justice to mislead the Indians as to the value of the land at issue in the above settlement and as to the operation of the settlement. Petitioner also views the approval by the Secretary of the Interior of the Indians’ attorneys as a warranty of their good faith efforts on behalf of their Indian clients. We are told that, in fact, these attorneys worked to their clients disadvantage by seeking the above settlement and by misleading the Indians into accepting it. Finally, petitioner alleges that the Indian Claims Commission failed in its duty under the Indian Claims Commission Act to properly oversee the settlement of the dockets. Petitioner avers that there were irregularities in the voting procedures, that theye was insufficient notice of the hearings on the proposed settlement, and points to what he alleges to be excessive legal fees awarded by the Commission to the Indian attorneys as evidence of a breach of the Commission’s duty.

Petitioner Pitt River Tribe makes a number of the same assertions made in the Andrade petition. We are told that the attorneys for the United States misled the Indians as to the value of the property in question and that the BIA and the Commission failed to assure that the Indians understood what the settlement offered and how it would operate. The Pitt River petition goes on to describe with particularity how attorneys for the United States misled the Indians as to the amount of money each individual Indian would receive, and the great saving in time which a settlement would permit as compared to further litigation. We are also told that the election procedure was subverted by the attorneys for the Indians presenting a series of reports biased in favor of the settlement, by the BIA sending out misleading information about the settlement as well as allowing too many mail ballots to be used, and by the Commission allowing the election procedures to be changed to include a mail ballot after a vote by the Pitt River Tribe had negatived the settlement. The petitioner asserts that the hearings on the proposed settlement were not conducted fairly. Because the petitioner was denied the right by the BIA to fire its original attorney and hire the attorney of its choice, it alleges that it was unable to oppose the settlement successfully, and that it was specifically denied the right to cross-examine those who spoke in favor of the settlement. Since it was allegedly tied to an attorney who was not working in its best interest we are told that petitioner was unable to challenge the proposed settlement at the Commission or to seek to overturn it in this court. In fact it was only when the present attorneys for the petitioner agreed to seek relief, without compensation, that the Pitt River Tribe could attempt to challenge the settlement. Finally we are told that under the circumstances the fees allowed to the attorneys involved in the settlement were exorbitant, and were awarded from the settlement without any notice to, or opportunity for comment by, the Indians.

Related to the settlement but not tied to its being overturned are two other claims of the Pitt River petitioner. We are told that those Indians who voted on the proposed settlement were led to believe that they would each receive a portion of the settlement based upon the Roll of 1928. This relatively large share of the total was allegedly an important factor in the settlement gaining acceptance. However, after the settlement, Congress established a new Roll which included more persons to share in the settlement. Act of September 21, 1968, 82 Stat. 860. This action by Congress was, we are told contrary to explicit promises made by Government Agents prior to the voting on the settlement and' operated to divest the Indians of their proper share of the settlement. The above Act also provided that funds from the settlement should be used to make up the new Roll. The deduction from the settlement of the alleged amount of $475,000 to pay for the Roll is challenged as never having been agreed to either in the settlement nor anywhere else, and as being a taking without compensation. These last claims will be dealt with separately.

Defendant asserts in its motions for summary judgment that this court lacks jurisdiction under the Tucker Act and 28 U.S.C. § 1505 to entertain these petitions. Even if the court did have jurisdiction over the claims made, we are told, they would be barred by the six year statute of limitations and/or by res judicata. For purposes of these eases, we do not accept defendant’s first contention as to the jurisdiction of the court. We agree with certain exceptions with defendant’s second contention, and therefore hold that petitioners’ claims must be dismissed.

Whether or not this court can entertain these petitions in their attack on the Commission judgment raises the question of the extent of our authority to entertain an “independent action” to reopen the ease, under Rule 152(b). Petitioners’ claims would normally be barred by res judicata and by 25 U.S.C. § 70u, which establishes a final determination of the Commission, filed with the Congress, as having the same effect as a final judgment of this court. Assiniboine Tribe v. United States, 121 F.Supp. 906, 913, 128 Ct.Cl. 617, 633, cert. denied, 348 U.S. 863, 75 S.Ct. 88, 99 L.Ed. 680 (1954). The only possible loophole through which petitioners can now get into court is under the provisions of Rule 152(b). This Rule is identical to Rule 60(b) of the Federal Rules of Civil Procedure. As explained in 7 Moore’s Federal Practice, § 60.18 [8]:

* * * Two types of procedure to obtain relief from final judgments are specified in amended 60(b). One procedure is by motion in the court and in the action in which the judgment was rendered. The other procedure is by a new or independent action to obtain relief from the judgment, which action need not necessarily be commenced in the court which rendered the judgment.

After providing for reopening cases within one year for mistake, newly discovered evidence or fraud, or within a reasonable time for “any other reason justifying relief”, the Rule states:

* * * This rule does not limit the power of the court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. * * *

As made clear from the above paragraph in Moore’s it is under this last clause of the Rule that the petitioners must seek relief. For convenience, we refer to the action as under Rule 152(b)' though technically the languge shows the Rule does not purport to confer jurisdiction, but only to reaffirm the continued existence of a form of relief that existed previously.

Defendant invites the court’s attention to Carney v. United States, 462 F.2d 1142, 199 Ct.Cl. 160 (1972). In that case we held that we could not, under Rule 152, reopen a judgment of a United States District Court, though referring to instances when we had reopened our own decisions. We stated that a court entertaining an independent action to reconsider a suit in a District Court must be one having equity jurisdiction and must have had jurisdiction over the subject matter, had there been no previous judgment. For the purposes of these cases, we assume without deciding that under 28 U.S.C. § 1505 we can nevertheless entertain an independent action by a tribe to.reconsider a judgment of the Commission, and one by Indian individuals under § 1491 as construed in Hebah v. United States, 428 F.2d 1334, 192 Ct.Cl. 785 (1970).

Plaintiffs have not helped us much in determining whether Carney is fatal to their claims. Our own reasoning tells us the matter is not free from doubt.. It must be remembered that the Commission was expected to have a relatively short life. It would not have been able to reopen its own judgments after it had ceased to exist, when it was discovered that such judgments should be overturned, for, e. g., fraud on the Commission. It is arguable that Congress intended this court to perform that function, since to assume otherwise would be to make Rule 152(b) relief unavailable to Indian litigants. Such a result would depend also on Section 70u of the 1946 Act. Under that Section of the Act, a judgment of the Commission when reported to Congress shall have the effect of a final judgment of this court. Since we could reopen our own judgment, it might follow we could reopen a judgment which has the effect of one of ours.

The second requirement set out in Carney is that the court entertaining the “independent action” must have jurisdiction over the subject matter apart from the bar of former adjudication. Under 28 U.S.C. § 1505 this court can entertain actions brought by Indian tribes for claims which accrued after 1946. Activity which would render a judgment of the Commission subject to attack on the grounds spelled out in Rule 152(b) would necessarily have taken place after 1946. As stated in He-bah, supra, 1949 would be the earliest date for individual claims.

If we reason that we can entertain an action under the independent action clause of Rule 152(b), that does not dispose of the cases before us. The operation of the Rule requires that the moving party act with diligence. Though there is no express time requirement in connection with an “independent action”, the doctrine of laches applies. Precisely how gingerly a court should proceed when entertaining an independent action to set aside a judgment is expressed in 7 Moore’s Federal Practice, § 60.37 [1]:

Under circumstances which render it manifestly unconscionable that a judgment be given effect, an independent action will lie to enjoin its enforcement because of newly discovered evidence; but properly the rules which limit equitable interference on this ground are stringent.53 And certainly the finality of judgments will not admit of an action to impeach a prior judgment merely because it was against the weight of the evidence,54 or because the judgment is thought to be unjust, erroneous, and contrary to that which the court in which the independent action is instituted might have reached.55
An independent action will not lie merely because the trial court failed to follow the instructions of the appellate tribunal.50 Nor can it be successfully maintained where the present complainant negligently failed to press the matter in the original action;57 or where he is guilty of laches in seeking relief from the original judgment.58 Ordinarily a party seeking to impeach a judgment must make a showing that the merits lie with him.59 And a court should not disturb rights of third persons vested or acquired in good faith reliance upon the judgment.60 (Footnotes omitted.)

Turning first to the question of the timeliness of these suits, they appear to be barred by the statute of limitations, 28 U.S.C. § 2501, and by laches. All of the challenged events with the exception of one, which will be dealt with below, took place on or before 1964. According to Japanese War Notes Claimants Ass’n v. United States, 373 F.2d 356, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967), the statute is tolled only if defendant concealed the cause of action and plaintiff was not aware of facts to put it on notice. Except as set forth hereinafter, whatever malfeasance petitioners know of now, they knew on July 20, or October 7, 1964. No adequate excuse for eight years of inaction is offered. If they are lawfully in court now, they could have been here then. Capoeman v. United States, 440 F.2d 1002, 194 Ct.Cl. 664 (1971). Thus lack of counsel cannot excuse the eight years of delay.

As to the specific allegations made in the petitions, we find them anyway insufficient to support action by this court under Rule 152(b). Both petitioners allege that attorneys for the defendant acted in bad faith during the negotiations for the settlement. The ICC Act clearly contemplates an adversary proceeding. The Government attorneys in presenting the facts in a light which favored their client’s position were acting properly in their capacities assigned them under the Act. They had no duty to point out court precedents favorable to the Indians and acted properly in attempting to get a settlement at a low cost to their client. The Indians had their own able counsel.

Both petitioners challenge the activities of those Government officials who supervised the voting on the proposed settlement. In response, defendant has placed before the court the extensive findings developed in this case by the Indian Claims Commission. These findings indicate a most careful inquiry by the Commission into the circumstances of the settlement, as was natural and prudent in view of the vociferous opposition. Government officials involved acted so as to assure a fair hearing and an unbiased vote on the proposed settlement. The findings indicated that at the meetings preceding the voting, both those who favored the settlement and those who opposed it were given ample opportunity to state their positions. We are told in the findings that the attorneys for the Indians gave a fair and unbiased appraisal of the proposed settlement. Decisions as to the operation of the vote, specifically the inclusion of mail ballots, in some cases, were apparently made in the desire to give all eligible Indians a chance to state their assent or opposition to the settlement. The hearings after the vote, according to the findings were handled in such a manner as to give all sides a fair opportunity to be heard. It is true that the above referred to findings were developed by the ICC, a body whose actions are being challenged. However, in the face of those findings the burden is on the petitioners to come forward with a specific prima facie case of wrongdoing. This they have failed to do. The ICC therefore benefits from the usual presumption that Government officials’ actions are proper and lawful.

Finally, the activities of the Indians lawyers are challenged. Again, the Commission’s findings controvert these challenges. According to the findings, the attorneys involved gave a fair account of the proposed settlement prior to the votes being taken. Certain of the .attorneys asked that mail ballots be used, but they did so only on, the basis of the alleged best interest of their clients. While certain of the Pitt River petitioners attempted unsuccessfully to dismiss the Tribe’s attorney and to replace him with another, the record indicates that these Indians had no standing to represent the Tribe in such a matter. The petitioners’ complaints point up an area of possible conflict of interest on the part of an attorney who is handling a case that will take years to try and sees the possibility of an immediate settlement. The conflict may well exist, but there are safeguards, (here a vote by the Indians and under ICC supervision) designed to protect the clients’ interests. Petitioners fail to show, in the face of the Commission’s findings, that those safeguards did not operate.

Since petitioners have not met the requirements of a successful challenge to a judgment under Rule 152 as spelled out in Moore’s, either in terms of timeliness or as to unconscionability, their claims as to the 1964 judgment of the Commission must fail.

Petitioner Pitt River Tribe also raises a challenge to the 1968 Act which set up the Roll of the Indians who would be able to share in the settlement and provided that the cost of establishing that Roll would be subtracted from the settlement sum. They also claim damages resulting from the delay in payment caused by the making of the Roll. These claims unlike the ones above are not barred by the statute of limitations or by laches. They are also not claims for relief under Rule 152(b). They are claims which, if this court has jurisdiction over them at all, come under 28 U.S.C. § 1505.

These latter claims were not extensively briefed by the Pitt River petitioner. In response to them, defendant invites the court’s attention to a series of cases which speak of the extensive powers of Congress in making up Rolls and in appropriating sums of money to pay Indian tribal claims. In view of the powers of Congress in the area, this attack on its constitutional right to do what it did would have to rest on clearcut grounds' unknown to us and not stated by petitioner. In light of the lack of an adequate exposition of these claims we dis-' miss them without prejudice, and without comment as to their merit.

Petitioners’ claims attacking the 1964 judgment of the Indian Claims Commission are dismissed. Defendant’s’motions as to these claims are granted. Petitioner Pitt River Tribe’s claim as to the 1968 Act of Congress is dismissed without prejudice.


source: Caselaw Access Project

author: VAN OOSTERHOUT, Judge.

license: Public Domain

text:
    Murray ANDERSON et al., on behalf of themselves and others similarly situated, Plaintiffs-Appellees, v. John T. DUNLOP et al., Defendants-Appellants.
    No. DC-14.
    Temporary Emergency Court of Appeals.
    Oct. 10, 1973.
    Certiorari Denied Jan. 7, 1974.
    See 94 S.Ct. 871.
    William C. White, Atty, U. S. Dept. of Justice (Irving Jaffe, Acting Asst. Atty. Gen, William E. Nelson and Allen W. Hausman, Attys, Dept. of Justice, on the brief), for appellants.
    Jerry S. Cohen, Washington, D. C. (Herbert E. Milstein, Michael D. Hausfeld, of Harold E. Kohn, P. A, Washington, D. C., on the brief), for appellees.
    Robert G. Nunn, Jr, William H. Bode, Alan S. Novins, Lobel, Novins & Laymont, Washington, D. C., on the brief for amicus curiae, Independent Gasoline Marketers Council.

      Before TAMM, Chief Judge, VAN OOSTERHOUT and HASTINGS, Judges.
   VAN OOSTERHOUT, Judge.

This is a timely appeal by John T. Dunlop and the officers and members of the President’s Cost of Living Council (hereinafter collectively referred to as CLC) from order of the United States District Court for the District of Columbia, filed August 24, 1973, granting plaintiffs a temporary injunction. The injunction restrains CLC from “in any way applying to Plaintiffs and the class Phase IV Oil Regulations, Subpart L; or in any way implementing or enforcing said regulations as they relate to Plaintiffs and the class.” The named plaintiffs are Murray Anderson and Joseph J. Grish.

Anderson operates a service station at Waycross, Georgia, handling Texaco brand gasoline and products. Grish operates two service stations, one located in Frazer, Michigan, and the other in Sterling Heights, Michigan, both of which are employed in the business of retailing Marathon brand gasoline and products. Both plaintiffs are retailers of brand name gasoline of major gasoline suppliers pursuant to an agreement with the supplier.

Plaintiffs allege that they bring this action on behalf of themselves and a class which consists of all service station dealers selling retail gasoline under the brand name of a major gasoline supplier pursuant to agreement with such supplier. It is asserted the class consists of about 165,000 members.

Jurisdiction of the District Court is based upon § 211(a) of the Economic Stabilization Act of 1970 as amended hereinafter called the Act. Our jurisdiction is founded on § 211(b) of the Act.

This court on motion of CLC, resisted by plaintiffs, granted a stay of the District Court order granting the temporary injunction, observing that such action in no degree reflects a decision on the merits and that the stay is solely to maintain the status quo until a hearing on the merits of the appeal may be had. The hearing upon the appeal was advanced to September 17, 1973, and an accelerated briefing schedule was established and followed. Application of plaintiffs to the Chief Justice and subsequently to Mr. Justice Rehnquist to vacate our stay order was denied. We deferred consideration of plaintiffs’ motion to reconsider our stay order until hearing on the merits on September 17. Oral arguments on the appeal were made on September 17, 1973, and the case was submitted.

Plaintiffs do not challenge the validity-of the Price Stabilization Act nor do they question the right of the President under the executive orders he issued to delegate to CLC the powers conferred upon him to regulate the price of crude oil and petroleum products.

Plaintiffs in brief state that their attack is confined to final Phase IV regulations, Subpart L. The gist of plaintiffs’ contentions as evidenced by their complaint and brief is that the Phase IV, Subpart L regulations, as applied to plaintiffs and their class are arbitrary and capricious and are invidiously discriminatory, in violation of the Fifth Amendment.

Plaintiffs do not sell propane, No. 2 fuel oil, diesel fuel, or natural gas derivatives. The only regulated product they sell is gasoline. As retailers of gasoline, their markup is controlled by § 150.352, Phase IV regulations, Subpart L. Such section provides that the ceiling price of a retailer for a particular octane of gasoline at a particular retail outlet shall be the weighted unit average cost of the seller’s inventory of that item on August 1, 1973, plus the actual markup applied by the seller at that outlet to the actual cost of gasoline on January 10, 1973, except that in no event shall the seller be required to use a markup of less than 7.00 cents a gallon in computing a selling price. Thus retailers who had a markup of more than 7.00 cents a gallon on January 10, 1973, were permitted to use such markup in computing their 'selling price, while retailers who because of a price war or for other reasons, had a markup of less than 7.00 cents a gallon on January 10, 1973, were permitted to use a 7.00 cents per gallon markup.

Plaintiffs assert that said regulation is discriminatory because it does not permit them to pass through increases in production costs since August 1, 1973, or increases in non-product costs such as rent, labor, insurance and maintenance. Plaintiffs also assert that they are the only retailers under Phase IV who are not allowed to pass through increases in product and non-product costs while their refiner suppliers may pass on their increased costs, and may do so through retail stations operated by the refiners, and thus receive preferential treatment. Complaint is also made that plaintiffs are discriminated against by not permitting them the small business exemption allowed generally to employers of less than sixty persons.

The trial court heard the temporary injunction application upon affidavits filed by the parties. The trial court’s memorandum opinion reflects that it granted the injunction upon the basis of its conclusion of law, based upon its fact finding, that Subpart L of the Phase IV regulations as applied to the plaintiffs and their class are arbitrary and discriminatory and bear no rational relationship to the objective sought to be obtained by the Act and the Phase IV regulations, and that the regulations violate the due process clause of the Fifth Amendment.

Plaintiffs urge that the court’s findings are based on undisputed facts. We disagree. CLC has filed extensive affidavits in the trial court in support of its contention that the regulations attacked are within the powers conferred upon the President by the Act and delegated to CLC, and that the regulations are reasonable and appropriate to accomplish the objective of the Act.

CLC states that the order granting the temporary injunction should be reversed by reason of errors committed by the trial court in the following respects:

1. Failure to require plaintiffs to exhaust available administrative remedies.

2. Failure to satisfy basic requirements for granting injunctive relief.

3. Finding that Subpart L regulations are violative of the due process clause of the Fifth Amendment.

4. Finding the individual plaintiffs properly represented a class consisting of some 165,000 independent retailers of brand name gasoline products.

For reasons hereinafter stated, we find that the plaintiffs have failed to exhaust available administrative remedies and that the order granting the temporary injunction should be reversed on that ground. Since such ruling is dispositive of this appeal, we do not reach nor express any view upon the other issues raised by CLC.

This court has squarely held in City of New York v. New York Telephone Co., 468 F.2d 1401 (Em.App. 1972), that the well-established doctrine of exhaustion of administrative remedies applies to actions arising under the Economic Stabilization Act. The reasonableness and logic of such holding is clearly demonstrated in Chief Judge Tamm’s opinion in that case and need not be repeated here. In City of New York, we held:

“Clearly then, in light of the policy considerations and the legislative history, exhaustion is required in the context of this proceeding unless we find the administrative remedy provided inadequate.” 468 F.2d 1401, 1404.

We are satisfied that an adequate administrative remedy is available. Section 207(b) of the Act provides :

“(b) Any agency authorized by the President to issue rules, regulations, or orders under this title shall, in regulations prescribed by it, establish procedures which are available to any person for the purpose of seeking an interpretation, modification, or rescission of, or seeking an exception or exemption from, such rules, regulations, and orders. If such person is aggrieved by the denial of a request for such action under the preceding sentence, he may request a review of such denial by the agency. The agency shall, in regulations prescribed by it, establish appropriate procedures, including hearings where deemed advisable, for considering such requests for action under this section: * * * ”

CLC, in conformity with the foregoing statutory direction, has in the Phase IV procedural regulations, 38 F.R. 21985, provided in § 155.41 to .43, a reasonable procedure for applying for individual or class exception, and in § 155.61 to .63, has provided procedures for applying for exemption or re-classification.

Charles Owens, administrator of the mandatory oil control program, in his affidavit filed in the trial court states that CLC has provided special procedures for expeditious consideration of individual claims for relief from the regulations to prevent serious hardship or inequities and has also provided for extensive monitoring of the entire retail gas system, and that plaintiffs have not requested an exception.

In Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938), the Court holds:

“ * * * no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.”

In Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767-768, 67 S.Ct. 1493, 1500-1501, 91 L.Ed. 1796 (1947), the Court holds:

“The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress’ will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner. To do -this not only would contravene the will of Congress as a matter of restricting or deferring judicial action. It would nullify the congressional objects in providing the administrative determination. In this ease these include securing uniformity of administrative policy and disposition, expertness of judgment, and finality in determination, at least of those things which Congress intended to and could commit to such agencies for final decision.”
In City of New York, we stated:
“Concepts of administrative autonomy also require that the Commission be given an opportunity to discover and correct its own errors. In this respect we have noted in our eases to date a healthy trend towards amendment of regulations when error or oversight has been pointed out to the Commission. Such autonomy lends itself to prompt, consistent price control policies which are essential to the administration of a nationwide program of price control. Finally, frequent deliberate skirting of the Commission may well result in an erosion of effectiveness and public confidence in the Commission which we must recall is a ‘collaborative instrumentalit[y] of justice.’ ”

Such language has special application to the petroleum situation here involved. Petroleum prices were not significantly controlled in the early phases of price control. When it became apparent that the nation’s supply of crude oil was inadequate to meet the nation’s needs, the price of petroleum products began to rise rapidly. In fixing prices, it was determined that consideration had to be given to the necessity of importing foreign crude oil which commanded higher prices than domestic crude and to offer price incentives which would encourage new domestic production. Detailed studies were made by experts in the full spectrum of the petroleum industry and reports were received and considered by CLC. . Public notice was given of proposed regulations and opportunity was afforded interested parties to express their views. The plan adopted imposed a ceiling on crude oil and upon the retail price of gasoline and other petroleum products. The preamble to the Phase IV Subpart L regulations sets forth at length the reason for imposing ceilings on crude oil and products derived therefrom, and the procedure followed in fixing ceilings at the refinery and retail levels. Included therein is the following statement:

“The Council intends to monitor the ceiling prices of gasoline, No. 2 heating oil and No. 2-D diesel fuel and will make periodic upward adjustments in the ceiling prices for those products to account for increased cost of imports and of domestic crude.”

Plaintiffs in their petition allege only by way of conclusion that they have exhausted all administrative remedies. No proof was offered that they have done-so. The trial court made no finding on the exhaustion of remedies issue but instead determined “requiring plaintiffs to exhaust their administrative remedies would result in irreparable harm, in that in this case, time is crucial to protect the rights of plaintiffs and the class.”

We hold that adequate administrative remedies were provided by the Act and regulations. There is no basis in the record for determining that application to CLC for exception, reclassification, or exemption would not receive fair consideration.

The exhaustion of remedies point was presented in the trial court by CLC by motion to dismiss. As we determined in City of New York, the Act requires exhaustion of available adequate administrative remedies before resort to the courts is available. No factual basis here exists which would warrant a departure from the well-established rule that administrative remedies should be exhausted before resort to the courts. The order granting the preliminary injunction is reversed and the case is remanded to the trial court with directions to dismiss by reason of plaintiffs’ failure to exhaust available administrative remedies.

Reversed and remanded.

      . P.L. 91-379 as amended by P.L. 93-28, April 30, 1973, and P.L. 92-210, December 22, 1971.

      . We note that subsequent to the trial court’s order, Dr. Dunlop in his news letter of September 14, 1973, announced that all retail dealers in gasoline and other petroleum products were asked to supply information on forms provided as to their prices, costs and margins on specified dates, and the further statement was made that on the basis of such information and information independently gathered by CLC and its monitoring program, the CLC will act promptly to make appropriate upward adjustments in ceiling prices. On September 28, 1973, an announcement was made by CLC of the revision of retail ceiling prices and the method of computing them with respect to gasoline which would result in increases ranging from 1 cent to 2% cents per gallon. Such ceiling increases apparently do not meet all of the plaintiffs’ objections to the gasoline ceiling regulations and thus render the ease moot, but does give further support to the view that applications for relief because of inequities or hardship' would receive fair consideration.


author: HASTINGS, Judge.

text:
    Dennis J. MURPHY, Director of the Rhode Island Department of Natural Resources, Plaintiff-Appellant, v. John J. O’BRIEN, District Director of Internal Revenue, and Robert J. Pettrucci, Acting Stabilization Manager, Defendants-Appellees.
    No. 1-2.
    Temporary Emergency Court of Appeals.
    Oct. 10, 1973.

      W. Slater Allen, Jr., Asst. Atty. Gen., for the State of Rhode Island (Richard J. Israel, Atty. Gen., on the brief), for appellant.
    Paul T. Michael, Atty. U. S. Dept. of Justice (Irving Jaffe, Acting Asst. Atty. Gen., William E. Nelson and Stanley D. Rose, Attys., Dept. of Justice, on the brief), for appellees.
    Before TAMM, Chief Judge, and VAN OOSTERHOUT and HASTINGS, Judges.
   HASTINGS, Judge.

Appellant Murphy, the Director of the Rhode Island Department of Natural Resources, brought this action in the district court to enjoin appellee United States officers from acting to prevent the colíection of parking fees at certain state owned beaches in Rhode Island. It is the Government’s position that these fees represent price increases illegally instituted during the 60-day price freeze which initiated Phase IV of the President’s economic stabilization program. The principal issues raised on this appeal are (1) whether the Cost of Living Council (CLC) acted within its authority under the Economic Stabilization Act of 1970, as amended, and Executive Order No. 11723 issued pursuant thereto, in issuing regulations which forbid these charges; and (2) whether the Act, as applied, unconstitutionally infringes upon Rhode Island’s right to raise reve- . nue for legitimate state ends.

On May 15, 1973, the Governor of Rhode Island approved a bill (hereinafter “S533”) providing that parking fees be charged at all Rhode Island state beaches having parking facilities. The present dispute concerns five beaches at which facilities were already in existence and theretofore available to the public free of charge. Bill S533 authorized an annual parking fee, restricted to Rhode Island residents, of between $3 and $5 per vehicle, as well as daily fees of $1 per vehicle on weekdays and $2 per vehicle on weekends. Annual fees received under S533 were to be used “for the maintenance and improvement and acquisition of beach facilities.”

The first sales of annual permits under the new law occurred during the week of May 21, 1973. Daily tickets did not go on sale until June 16, which was designated the official opening date for use of the beaches. Prior to June 16 beach parking facilities remained available to the public free of charge, and the record indicates that the beaches themselves were open for some time prior to the official opening date. Sales of annual permits in the period May 21-June 28 totaled 5,030 at a price of $5 each.

On June 13, 1973, the President issued Executive Order No. 11723, 38 Fed.Reg. 15765 (June 15, 1973), imposing a comprehensive price freeze on all commodities and services (except raw agricultural products) for a maximum period of 60 days. Section 1 of that order states:

Effective 9:00 p. m., e. s. t., June 13, 1973, no seller may charge to any class of purchaser and no purchaser may pay a price for any commodity or service which exceeds the freeze price charged for the same or a similar commodity or service in transactions with the same class of purchaser during the freeze base period. * * *

Section 8 defines “freeze base period” as

(a) the period June 1 to June 8, 1973; or

(b) in the ease of a seller who had no transactions during that period, the nearest preceding seven-day period in which he had a transaction.

Finally, “transaction” is defined by Section 8 as

* * * an arms length sale between unrelated persons and is considered to occur at the time of shipment in the ease of commodities and the time of performance in the case of services.

On June 28, 1973, appellee O’Brien informed Murphy that the collection of beach parking fees under S533 was in violation of Executive Order 11723 and the Cost of Living Council regulations issued thereunder, 38 Fed.Reg. 15768 (June 15, 1973), and ordered him to cease fee collections at the five affected state beaches. On July 5 the present action was initiated in the district court challenging such order. On July 24 the trial court, acting on stipulated facts, entered an order denying appellant’s request for preliminary and permanent injunctive relief and requiring appellant to submit a plan for refunding the amounts illegally collected. On August 6 this court stayed the remedial provision of that order pending this appeal.

Appellant’s primary argument is that the parking charges initiated by S533 are properly characterized as “use taxes” rather than as “fees.” We find it unnecessary to resolve this issue, since the distinction pressed by appellant is irrelevant to the outcome of this case.

In the first place, it is clear that the CLC freeze regulations apply the freeze to these parking charges regardless of label. After stating that the freeze does not apply to transactions “which are not prices within the meaning of the act,” the regulations specify, inter alia, that “state or local income, sales and real estate taxes” are thereby excluded. § 140.1(c), 38 Fed.Reg. 15768 (June 15, 1973). That “prices” charged by governments are not exempt from the freeze is made clear by § 140.2, which defines persons covered by the freeze to include “a government, and any agency or instrumentality of a government.” The CLC interpreted its regulations in a series of releases in the form of questions and answers concerning the freeze, published during the freeze period. Release No. 8, 38 Fed.Reg.17490 (July 2, 1973), contains the following:

3. Q. May State or local taxes be increased during the freeze?
A. Yes. State and local taxes are exempt from the freeze since they are not prices within the meaning of the Economic Stabilization Act. These taxes include general purpose taxes such as income, sales and property taxes. (Emphasis supplied.)
5. Q. Can the fees or charges which a State or local government charge for services provided by the governments be increased during the freeze?
A. No. Fees for water, gas, sewer and similar services are considered prices for particular services and<> are subject to the freeze. No matter what a State or local government may call a fee or charge for a specific public service, if that government is imposing a user charge, then the charge is covered by the freeze. (Emphasis supplied.)

Both the regulations and the later questions and answers release indicate that the Council treats governmental service charges as “prices” within the meaning of the Act, regardless of whether they are technically “use taxes” or “user fees.” All that is required is that the charge be for a “specific public service,” which obviously includes parking facilities, and that it be levied against “users.” This interpretation of the Act by the CLC is entitled to great deference from a reviewing court, University of Southern California v. Cost of Living Council, 472 F.2d 1065, 1068 (T.E.C.A.1972), cert. denied 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973), and appellant has failed to demonstrate that the Council’s rulings are unreasonable or arbitrary and capricious. In any event, we have no difficulty in finding that the parking charges here challenged are in fact “prices” and are thus Susceptible of regulation by the executive pursuant to the Act.

In light of the foregoing, it appears that appellant’s primary purpose in insisting that these charges are “taxes” is to emphasize his claim that this application of the Economic Stabilization Act unconstitutionally restricts Rhode Island in its collection of revenue. “Tax” connotes the power of a sovereign, whereas “fee” evokes more mundane images. Semantics aside, the issue raised by appellant is, simply, whether the Constitution precludes Congress from enacting legislation which has the effect of preventing a state from raising revenue in the otherwise lawful manner here adopted.

Otherwise valid federal legislation, e. g., the Economic Stabilization Act, which incidentally interferes with state affairs has in recent times been uniformly upheld by the Supreme Court. Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552 (1946); New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326 (1946); United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936). The most thorough discussion of the question is found in New York v. United States, supra, a case involving federal taxation of the sale of mineral waters by a state. In upholding the federal tax, Mr. Justice Frankfurter suggested that federal interference is constitutionally suspect only where Congress discriminates against states as such:

* * * [S]o long as Congress generally taps a source of revenue by whomsoever earned and not uniquely capable of being earned only by a State, the Constitution of the United States does not forbid it merely because its incidence falls also on a State. Id. 326 U.S. at 582, 66 S.Ct. at 314.

Chief Justice Stone concurred in the decision on the grounds, inter alia, that the challenged exercise of federal power “does not curtail the business of the state government more than it does the like business of the citizen.” Id. at 588-589, 66 S.Ct. at 317. The Chief Justice also stated that even a non-discriminatory tax might face constitutional objection if it “unduly interferes with the performance of the State’s functions of government.” Id. at 588, 66 S.Ct. at 317.

More recently, in Maryland v. Wirtz, supra, the Court implied that the concept of state sovereignty no longer imposes any limit on the authority of Congress to legislate pursuant to a valid Congressional power. 392 U.S. at 195, 88 S.Ct. at 2017. Even under the New York case, however, it is clear that the Economic Stabilization Act as here applied is constitutional. The Act neither “unduly interferes” with Rhode Island’s ability to function as a govei'nment nor discriminates against states in general or Rhode Island in particular. The interference here was short lived, did not impair Rhode Island’s ability to raise revenue by means of sales, income or real estate taxes, and arose only as an incident of a uniform, nationwide program of price regulation.

There remains the question whether the Act as applied is a valid exercise of Congressional power under the Commerce Clause. In this connection appellant argues there has been no showing that any out of state patrons actually used the beach parking lots here involved. Such a showing is unnecessary, however. Activity which is wholly intrastate may be regulated by Congress where such activity, combined with like activity by others similarly situated, substantially affects commerce among the states or with foreign nations. United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). There is little difficulty finding such an effect from the Act, inasmuch as its essential purpose is to control inflation.

In addition to the “use tax” argument, appellant raises two further objections. First, appellant contends that the parking fees were already in effect during the freeze base period and therefore do not represent price increases prohibited by Executive Order 11723. Appellant relies on the fact that some 716 annual permits were sold prior to June 8 even though annual permits or daily tickets were not required for parking until June 16, three days after the freeze was imposed.

In University of Southern California v. Cost of Living Council, supra, this court held that ticket price increases for football games played during the Phase I freeze were unlawful despite substantial advance sales of tickets prior to and during the freeze base period. That decision was based on a ruling by the Office of Economic Preparedness that a service “transaction,” for purposes of determining base price, takes place at the time the service is performed. See 36 Fed.Reg. 17578 (1971). The same principle is incorporated in the definition of transaction found in Section 8 of Executive Order 11723, quoted above, and in § 140.2 of the freeze regulations. See also Questions and Answers Release No. 4, 38 Fed.Reg. 16651 (June 25, 1973). Here the services which were the subject of the fees were not performed until sometime after June 16. The transactions represented by the fees must therefore be deemed to have occurred after the freeze base period. In contrast, parking services performed during the base period were provided free of charge.

Appellant attempts to distinguish Southern California as involving an “event fixed in time.” We see no reason to limit the application of that case to fixed events. Nor can the fact that the annual permits were valid beyond the 60-day freeze excuse their unlawful effect during that period.

Finally, appellant argues that the pai'king fees financed a “new service” within the meaning of § 140.12 of the freeze regulations. Appellant bases his claim on a literal reading of the definition of “new service” in the regulation. Under that definition, a commodity or service is “new” if:

(i) The offering person did not sell or lease it in the same or substantially similar form at any time during the 1-year period immediately preceding the first date on which he offers it for sale or lease. * * *; and
(ii) It is substantially different in purpose, function, quality, or technology, or its use or service effects a substantially different result from any other commodity or service which the offering person currently sells or leases or sold or leased at any time during the 1-year period immediately preceding the first date on which he offers it for sale or lease. § 140.12(c)(1), 38 Fed.Reg. 15769 (June 15, 1973).

Since parking facilities were offered free of charge prior to June 16, appellant argues that Rhode Island did not “sell or lease” the service during the preceding year; therefore the service is new. We believe, however, that the words “did not sell or lease” with reference to the preceding one year period are intended only to indicate an absence of transactions, and not to express a requirement that prior transactions have been performed for a price. Certainly the interpretation urged by appellant is inconsistent with the purpose of the freeze, inasmuch as instituting a charge for what was formerly free is no less inflationary than raising an existing price.

Appellant’s contention that the parking service was offered to a new market within the meaning of § 140.12(e) (2) likewise is without merit.

The trial court’s final order required appellant to submit a refund plan to the court within ten days. Our stay of that order is hereby dissolved and the cause is remanded to the district court for remedial proceedings in accordance therewith.

Affirmed.

      . 12 U.S.C.A. § 1904 n.

      . “SEC. 42-17.1-9.1 Parking fees 'at state beaches. The Department shall charge parking fees at nil State beaches where such parking facilities are furnished by this department as follows:
      (a) An annual fee of $3 and $5 for all vehicles, registered in Rhode Island, which fee shall be based on the size of the vehicle as determined by the department.
      (b) All other vehicles shall pay a daily fee of $1 per vehicle on weekdays and a fee of $2 per vehicle on each Saturday, Sunday and holiday.
      (c) Annual fees shall be retained by the state and shall be used for the maintenance and improvement and acquisition of beach facilities.”

      . Appellant states in his brief that parking fees were charged prior to S533 at one state beach, Misquamicut, which caters primarily to nonresident visitors.

      . On July 5 the court had entered a temporary restraining order on the condition that the state “maintain appropriate signs at the entrance to each of the beaches * * * advising patrons that the imposition of parking fees is being challenged by the United States Government * * * ” and that “said signs further advise that should the United States Government be successful, patrons will be entitled to a refund * * This was subsequently dissolved in the trial court’s order of July 24, 1973.

      . Section 203 of the Economic Stabilization Act of 1970 authorizes the President to issue orders and regulations to “stabilize prices, rents, wages, and salaries * * 12 U.S.C.A. § 1904 n.

      . Appellant urges that CLC’s interpretation is inconsistent with its prior practice in that state and local user fees were excluded from controls under Phases II and III. The reason for that exclusion w.as not, however, the belief that such fees were outside the scope of the Act. Bather, the Council recognized that strict controls over fees could be avoided simply by raising general taxes; hence, “coverage of fees would be meaningless.” Cost of Living Council News No. 47, Dec. 23, 1971. It is no abuse of discretion for the Council to reach a different conclusion in the process of implementing a short term general price freeze where the opportunity for avoidance through general tax increases is minimal.

      . Appellant’s constitutional claims are before us on appeal, rather than pursuant to the mandatory certification procedure set forth in § 211(c) of the Act, because the trial court determined that the constitutional issues were not substantial.

      . Wirtz held that the Fair Labor Standards Act as amended may be constitutionally applied to wages paid by state governments.

      . This is not a case involving the question whether a state user fee imposes an unconstitutional burden on interstate commerce. Compare Evans ville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972).

      . Section 202 of the Act recites the Congressional determination that “in order to stabilize the economy, reduce inflation, minimize unemployment, improve the Nation’s competitive position in world trade, and protect the purchasing power of the dollar, it is necessary to stabilize prices, rents, wages, salaries, dividends, and interest * *

      . Executive Order No. 11615, 36 Fed.Reg. 15727 (1971).

      . This is true regardless of whether the “off-season” period of June 1-8 or the next preceding seven-day period during an “official” season (presumably during the summer of 1972) is the correct base period here.

      . If so, Rhode Island would be permitted to set a price in accordance with formulas contained in § 140.12(a).


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. KIN PING CHEUNG and Sammy Cho, Defendants-Appellants.
    No. 72-2622.
    United States Court of Appeals, Fifth Circuit.
    Oct. 31, 1973.
    Lawrence R. Metsch, Miami, Fla. (Court-appointed), for Cheung.
    Samuel S. Forman, Miami, Fla. (Court-appointed), for Cho.
    Robert W. Rust, U. S. Atty., George A. Kokus, Charles 0. Farrar, Jr., Asst. U. S. Attys., Miami, Fla., for plaintiffappellee.
    Before WISDOM, DYER and INGRAHAM, Circuit Judges.
   WISDOM, Circuit Judge:

This ease presents the question whether the defendants’ second prosecution was permissible under the double jeopardy clause after the court on its own motion declared a mistrial during their first trial. The defendants-appellants, Kin Ping Cheung and Sammy Cho, were convicted of importing heroin into the United States, and of possessing heroin with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), 952(a). We set aside the convictions because we find that there was no “manifest necessity” for the district court’s sua sponte declaration of a mistrial and that the Court, therefore, erred in overruling, at the commencement of the second trial, the defendant’s plea of double jeopardy.

I.

On April 13, 1972, the grand jury for the Southern District of Florida returned a four-count indictment naming three defendants, Cheung and Cho, and a third man, Lee Fong Ting. Count I of the indictment charged Lee Fong Ting with possession of heroin with intent to distribute it; Count II charged him with distribution of heroin; Count III charged all three defendants with illegally importing heroin; and Count IV charged Cheung and Cho, the two appellants, with possessing heroin with intent to distribute it.

Trial was set for May 15, 1972. On that day, Ting withdrew an earlier plea of not guilty and pleaded guilty to Count III of the indictment. A joint trial of the other two defendants then commenced. During the course of that trial, the government called Ting as a witness. The testimony he gave tended to exculpate Cheung. Ting testified that Cheung had contracted only to bring a suitcase full of clothing into the United States, and that he had acted throughout in total ignorance of what it was he was helping to bring into the United States. In cross examining Ting, counsel for Cho sought to impeach his testimony by questioning him about his guilty plea. During this cross examination the difficulties occurred that eventually led to the declaration of a mistrial. Ting asserted that he was having trouble with his memory; and acute problems arose concerning the translation of his testimony. Specifically, there was a serious question whether the word he used to describe what he thought he was importing into the United States should be translated as “food” or as “Chinese medicine”. The trial judge had two discussions with counsel and the interpreters over the accuracy of the translation. After the completion of Ting’s testimony, an Assistant United States Attorney, as an officer of the Court, felt compelled to call to the attention of the trial judge a statement by a potential Government witness to the effect that there was a “little bit lacking” in the interpretation of Ting’s testimony. This person, when questioned by the trial judge, pointed out that there were a number of Chinese dialects (he understood three), and the court interpreter seemed to comprehend Mandarin but did not fully understand Shanghaiese or Cantonese. In addition, there are certain concepts which cannot be translated in another language; that in some cases the best fidelity rate was about 70 to 75 percent. At this point, the trial judge, on his own motion, declared a mistrial in the case, and set aside Lee Fong Ting’s guilty plea. He stated that he expected an interpreter to be found who could speak the dialect of any witness. He set May 30, 1972, as the date for a retrial of the case.

On May 30, the Court granted the Government’s motion for a psychiatric examination of Ting. On that same day, over the objections of the other two defendants that the retrial violated their rights under the double jeopardy clause, the trial of Cheung and Cho began. The court severed the trial of the two defendants the next day. Cho's trial proceeded, and on the following day, June 1, 1972, he was adjudged guilty on Counts III and IV of the indictment. On June 5, 1972, Ting entered a second plea of guilty on Count III. That same day, Cheung’s second trial began. During that trial, Cheung called Ting as a witness for his defense. Ting again testified that Cheung had acted innocently, and had thought that he had been importing a suitcase full of clothing, not one full of heroin. The jury returned a verdict of guilty on both counts.

II.

One hundred and fifty years ago, Mr. Justice Story articulated the still viable doctrine of “manifest necessity” that controls the validity of a court’s declaration of a mistrial without the consent of the accused. When a trial judge declares a mistrial on his own or on the prosecutor’s motion, a retrial is permissible only if there exists a “manifest necessity” for the declaration of the mistrial lest “the ends of public justice would otherwise be defeated”. United States v. Perez, 1824, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165. In determining whether a “manifest necessity” exists for the declaration of a mistrial, the courts are to weigh the “defendant’s valued right to have his trial completed by a particular tribunal” against “the public’s interest in fair trials designed to end in just judgments”. Wade v. Hunter, 1949, 336 U.S. 684, 690, 69 S.Ct. 834, 837, 93 L.Ed. 974. The decision must be made “taking all the circumstances into consideration”, Perez, 9 Wheat, at 580; and “virtually all of the cases turn on the particular facts and thus escape meaningful categorization”. Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed. 425, 431. In Somerville the Supreme Court brought up to date the principles governing the law of double jeopardy. This Court has recently reviewed these principles in Smith v. Mississippi, 5 Cir. 1973, 478 F.2d 88, and McNeal v. Hollowell, 5 Cir. 1973, 481 F.2d 1145.

In this case two considerations compel the conclusion that the trial judge abused his discretion in finding that a “manifest necessity” for a mistrial existed. First, the trial judge failed to consider alternatives to declaring a mistrial. Here, he declared the mistrial during the first trial without due consideration of the defendants’ interest in having their guilt or innocence determined at that trial. The importance of this kind of consideration was established by the Supreme Court’s decision in United States v. Jorn, 1971, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. In that case, Justice Harlan’s plurality opinion stated:

[Wjhere circumstances develop not attributable to prosecutorial or. judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.

400 U.S. at 485, 91 S.Ct. at 557.

In stating the Court’s holding, Justice Harlan made clear that a “scrupulous exercise of judicial discretion” demands inquiry into the possible alternatives to a mistrial:

It is apparent from the record that no consideration was given to the possibility of a trial continuance; indeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so: When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial [citing Perez] . Therefore, we must conclude that in the circumstances of this case, appellee’s reprosecution would violate the double jeopardy provision of the Fifth Amendment.

400 U.S. at 486-487, 91 S.Ct. at 558.

In this case, as in Jorn, the record clearly shows that the trial judge failed to inquire into the availability of less drastic techniques for dealing with the problems that arose during the cross-examination of Lee F'ong Ting. He did not, for instance, consider the possibility of deleting Lee Fong Ting’s testimony from the record, giving the jury appropriate instructions to disregard the testimony. He did not consider the possibility of a short continuance. It was accordingly improper for him to conclude that a “manifest necessity” for a mistrial existed, or that the “ends of public justice” demanded a mistrial.

Second, this case is one where the mistrial “entailed not only a delay for the defendant, but also operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case”. Somerville, 410 U.S. at 469, 93 S.Ct. at 1073, 35 L.Ed.2d at 434; citing Downum v. United States, 1963, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100; see McNeal v. Hollowell, 5 Cir. 1973, 481 F.2d 1145, at 1150. The prosecution’s witness had taken the stand and had given testimony tending to exculpate one of the defendants. The trial judge should have realized that the Government, knowing what this witness would testify, would have a new opportunity at the later trial to seek a severance; if there was a severance, to call the witness only at the trial of the defendant he inculpated, and to refrain from calling him at the other defendant’s trial. To be sure, here Cheung called Ting at the later trial; but at the earlier trial, the jury had heard his exculpatory testimony given by a government witness, not by a defense witness. The Government stood to gain advantage from the mistrial, since it could avoid the embarrassment of having its own witness exculpate a defendant.

This was “a situation with a tantalizing potential for prosecutorial misconduct”, McNeal, 481 F.2d at 1150. In the circumstances, we conclude that there was no “manifest necessity” for declaring a mistrial.

Reversed.


author: COFFIN, Chief Judge.

text:
    Francis T. GLYNN, Appellant, v. Robert H. DONNELLY, Appellee.
    Misc. No. 73-8046.
    United States Court of Appeals, First Circuit.
    Submitted Aug. 6, 1973.
    Decided Oct. 11, 1973.
    James W. Kelleher, Boston, Mass., for petitioner upon application and memorandum in support thereof.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Petitioner, Francis T. Glynn, was convicted in Massachusetts Superior Court of the crimes of corruptly giving, offering and promising a bribe to certain public officials of the Commonwealth, and of conspiring to give, offer and promise a bribe to these officials. His conviction was affirmed by the Supreme Judicial Court of Massachusetts, Commonwealth v. Beneficial Finance Co., 1971 Mass. Advance Sheets 1367, 275 N.E.2d 33 (1971), cert. denied, 407 U.S. 914, 92 S.Ct. 2433, 32 L.Ed.2d 689 (1972). Petitioner then sought a writ of habeas corpus from the federal district court and also sought bail pending a hearing on the merits. Upon denial of bail by the district court petitioner appealed to this court, which affirmed the lower court’s decision, Glynn v. Donnelly, 470 F.2d 95 (1st Cir. 1972). Thereafter the district court denied the petition for the writ and also denied the application for a certificate of probable cause for appeal under 28 U.S.C. § 2253. Petitioner now applies to this court for the certificate.

The substantive issue which is pressed upon us relates to certain ex-parte communications with the trial judge on the part of the prosecution which petitioner claims denied him due process of law, relying in particular on our decision in Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969). The communications in question were a number of applications for certificates under the Uniform Law to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, Mass.G.L. c. 233, §§ 13A-13D. We agree with the district court that there is no basis to petitioner’s constitutional claim and therefore deny the petition for a certificate of probable cause.

The district court, in denying the certificate, found the appeal frivolous within the meaning of Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), which dealt with the test of “good faith” applicable to appeals in forma pauperis. Arguably, a petitioner seeking a certificate from a court of appeals shoulders a somewhat heavier burden. In Ellis v. State of Maine, 448 F.2d 1325, 1327 (1st Cir. 1971), we said, “we do not propose to overrule a district court’s denial of a certificate of probable cause for appeal, after ruling against petitioner, unless there is affirmatively demonstrated to us that such cause in fact exists.”

There would appear to be differences among various courts in the articulation of a standard for review in this area, some using the “non-frivolous” standard of Coppedge and others using variations of a “substantiality of issues” test. See, for recognition of inconsistency in formulations, 43 F.R.D. 343, 351-354 (1967), 50 F.R.D. 153, 176 (1970).

Here, whether there be a significant difference or not in the standard of review of denials of forma pauperis appeals and certificates of probable cause, the district court applied the standard favoring the petitioner. And we are obliged to give “weighty consideration” to that decision. Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 18 L.Ed.2d 282 (1967).

In our earlier involvement in this case, on the issue of granting bail pending hearing on the petition for habeas corpus in the district court, Glynn v. Donnelly, 470 F.2d 95 (1st Cir. 1972), we held open the issue of substantiality, saying only that petitioner’s case was not “a clear one” and that we saw a significant difference between a prosecutor’s making ex parte pre-sentencing remarks to the sentencing judge in Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969), and “the seemingly routine processing under the [Uniform Law to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, Mass.G. L. c. 233, §§ 13A-13D] of applications to secure witnesses from without the jurisdiction.” We now hold that the district court did not err in concluding that the appeal was frivolous.

We recognize that the issue was not frivolous in the sense that a court could quickly conclude that it was patently without merit. Counsel made a skillful and sophisticated argument, drawing upon facially relevant analogies. The district couri treated the matter thoroughly in a ten page opinion. But the test of frivolity does not rest on the length or deliberateness of a court’s reasoning. We also recognize that an issue such as this could be held frivolous by one judge and not so by another. It is precisely in the area where, given the deference of “weighty consideration”, we cannot say the district court erred, even though we realize that we are facing an issue not yet addressed, except by the .Supreme Judicial Court in the prior state court proceedings.

The representations of the prosecutor went no further than to present in conclusory terms minimal information necessary to demonstrate the relevance of the requested witnesses’ testimony. The certificate of the judge, though phrased in factual terms, merely repeated the representations of the prosecutor to indicate the need for the out-of-state witness. Both application and certificate were directed to what the witness was expected to say. In one application there was reference to a person’s prior grand jury testimony. Whether or not the witness would testify as expected was subject to the same uncertainties as attend other justifications for preliminary action. This kind of pre-trial representation seems to us not basically different from seeking a warrant for arrest, a search warrant, an order permitting limited electronic surveillance. In all such cases a judge may be exposed to ex parte assertions which he passes on, not for their truth, but for their legal sufficiency in justifying proposed police action assuming their truth. To say that such exposure disables that judge as a matter of constitutional law from presiding over a subsequent jury trial, because he may consider the ex parte representations in imposing sentence, seems to us to expand the policy of insuring the purity of the court to the point of eliminating faith in it.

We wish to make clear that nothing we say today is meant to diminish in the least our holding in Haller v. Robbins, supra, that ex parte communications between judge and prosecutor are presumptively improper. But we find that there is a vast difference between a case like Haller, where detailed and highly prejudicial information concerning “an episode of sordid behavior” during a kidnapping was conveyed to the judge ex parte, and a ease like this one where general and conclusory representations concerning anticipated testimony of out-of-state witnesses were so communicated. Moreover, whereas in Haller we found “no practical necessity” for the ex parte contact, here the contact was in furtherance of the legislative plan for compulsion of the attendance of out-of-state witnesses. Under the circumstances, we find that the rule announced in Haller is inapplicable to this case.

We therefore agree with the district court that there is no merit in petitioner’s constitutional argument.

The petition for certificate of probable cause is denied.


author: BELL, Circuit Judge:

text:
    Kenneth Eugene McEACHERN, Petitioner-Appellant, v. J. D. HENDERSON, Warden, U. S. Penitentiary, Atlanta, Ga., et al., Respondents-Appellees.
    No. 73-1867
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 18, 1973.

      Kenneth E. McEachern, pro se.
    John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Otis Lanter, Commonwealth’ Atty., Lee Lanter, County Atty., Grant County, Williamstown, Ky., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   BELL, Circuit Judge:

The difficulty giving rise to the appeal in this case rests largely in the practice of the United States District Court of the Northern District of Georgia of treating as complaints letters from prisoners confined in the federal maximum security prison in Atlanta. See Freeley v. United States, 5 Cir., 1972, 465 F.2d 1403. This entire ease stems from a single handwritten letter from petitioner, a federal prisoner, addressed to a federal district court judge. Over a month and a half after its receipt it was entered in the clerk’s office as a formal complaint. Petitioner’s letter seems to set out two complaints: first, that he had been denied his constitutional right to a speedy trial by Kentucky state authorities who had filed a detainer with federal prison officials based on an outstanding Kentucky felony warrant; and second, a request for an order expunging restrictions imposed on the petitioner at the federal prison solely as a result of the state detainer.

The court proceeded to reach the correct result on the first aspect of the complaint. It concluded that after the petitioner’s unsuccessful demand for a speedy trial to the Kentucky authorities, petitioner’s remedy in order to attack the underlying criminal charge, or the basic validity of the detainer, on the constitutional speedy trial grounds, was to first exhaust his state remedies in Kentucky, and if unsuccessful, he could then petition for habeas corpus relief in federal district court in Kentucky. This is the preferred practice in this circuit, Reed v. Henderson, 5 Cir., 1972, 463 F.2d 485, and the Supreme Court recently-said such procedures were the more desirable and convenient. Braden v. 30th Judicial Circuit Court of Kentucky, 1973, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443.

Here the prisoner contends that his complaint was misconstrued or misinterpreted by the district court in that he was also claiming relief against the restrictions imposed on him solely because of the state detainer. A system that substitutes letters for pleadings promotes this kind of difficulty. We could vacate and remand with direction that the district court require at least a formal complaint, but the case has reached the point where it is plain to us that the petitioner has attacked the restrictions allegedly imposed by federal prison authorities as a result of the state detain-er. Moreover, petitioner’s letter does in fact, as he argues, assert this additional ground.

Neither this court in Reed, supra, nor the Supreme Court in Braden, supra, affected the distinction between a petitioner’s habeas corpus attack on the validity of a state detainer on speedy trial grounds and a petition attacking the effect of a state detainer on speedy trial grounds. That distinction was most clearly drawn by the federal district court in the Northern District of Georgia in the landmark case of Lawrence v. Blackwell, N.D.Ga., 1969, 298 F.Supp. 708. Shortly thereafter, that court adopted formal procedures to handle petitions of federal prisoners attacking the effects of state detainers. Weiss v. Blackwell, N.D.Ga., 1969, 310 F.Supp. 360. See also Bedwell v. Harris, 10 Cir., 1971, 451 F.2d 122; Watson v. Norton, D.Conn., 1971, 335 F.Supp. 1324. Reed and Braden outline the procedures for the petitioner to challenge the validity of the detainer by attacking the underlying criminal charge on speedy trial grounds. Lawrence and Weiss detail the exemplary procedures of the federal district court for the Northern District of Georgia to relieve a federal prisoner of the effects of a detainer when the court finds lack of diligence and good faith by the demanding state authorities in securing petitioner’s right to a speedy trial.

We therefore conclude that the case should be remanded for consideration of the second aspect of petitioner’s complaint.

Affirmed in part, vacated in part, and remanded.

      . Petitioner asserted in his complaint that the detainer was restricting him in his attempt “to become rehabilitated, and in my efforts to obtain an academic and vocational education.” For a detailed discussion of the detainer system its role in federal and state penal institutions, see Lawrence v. Blackwell, N.D.Ga., 1969, 298 F.Supp. 708; and the legislative history of the “Interstate Agreement on Detainers.” 18 U.S.C.A. App., p. 105, in 3 U.S. Code Congressional and Administrative News, 91st Cong., 2d Sess., 1970, at p. 4864.

      . In the next to last paragraph of his letter, petitioner wrote, “Will you please treat this letter as the necessary petition for relief from this detainer restrictions [sic], and the removal of it from my record.”


author: PER CURIAM:

text:
    Joseph P. BARFIELD, Plaintiff-Appellee, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.
    No. 72-3805.
    United States Court of Appeals, Fifth Circuit.
    Oct. 17, 1973.

      John W. Stokes, Jr., U. S. Atty., Charney K. Berger, Asst. U. S. Atty., Atlanta, Ga., Kathryn H. Baldwin, Eric B. Chaikin, Eloise E. Davies, Dept. of Justice, Washington, D. C., for defendant-appellant.
    H. H. Gearinger, Chattanooga, Tenn., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

A Social Security claimant filed this suit in the district court to review a decision of the Secretary in which he dedined to reopen a claim for disability benefits. In the prior hearing on the claim the Secretary had denied further benefits to plaintiff. The present suit was predicated on the provisions of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and section 10 of the Administrative Procedure Act, 5 U. S.C. § 704. The Secretary filed a motion to dismiss and contended that his decision not to reopen claimant’s application for disability benefits was not judicially reviewable. The district court below denied the motion to dismiss and remanded the case to the Secretary with instruction to determine if the hearing afforded claimant on his application to reopen the case relative to cessation of benefits was in accord with Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972). The Secretary then brought this appeal from the district court’s order.

We required the parties to brief the threshold question of whether the district court’s order remanding the case to the Secretary was an appealable final order under 28 U.S.C. § 1291. Appellant made no request in the district court to certify the matter as an interlocutory appeal under 28 U.S.C. § 1292(b), and no application was made to this Court for permission to take an appeal from the district court’s order.

The Secretary contends that the district court’s order is appealable as a final order because it is one contemplated by' the Supreme Court’s decisions in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and Gillespie v. United States Steel Corporation, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), since the question presented “clearly presents a final determination of a claim of right separable and collateral to rights asserted in the action that are serious and unsettled questions too important to now be denied review.” (Secretary’s supp. brief p. 2.) The Secretary further contends that unless the district court’s order is reviewed his right will probably be irreparably lost.

This case, however, does not come within the Cohen criteria. We are unable to agree with the Secretary’s contention that “[t]he order’s review cannot, in the nature of the questions it presents, await final judgment because when that time comes, it will be too late effectively to review the order and rights conferred will have been lost, probably irreparably.” See Cohen, supra, 337 U.S. at 546-547, 69 S.Ct. 1221.

No adequate reason has been suggested why the Secretary cannot respond to the district court’s instruction. The matter can be determined in due course, and the aggrieved party can take an appeal to this Court for ultimate review on all of the combined issues.

Since the appeal here is from an order of the district court which is not final, and no certificate has been obtained from the district court, or permission granted by this Court as required by 28 U.S.C.,§ 1292(b), we do not have jurisdiction to entertain this appeal. See Alabama Lab. Coun., P.E.U., Loc. No. 1279 v. State of Alabama, 5 Cir., 1972, 453 F.2d 922.

Appeal dismissed.

      . 42 U.S.C. § 405(g) in pertinent part reads as follows:
      “Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.....”
      5 U.S.C. § 704 reads as follows :
      “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Elbert MACKEY, Defendant-Appellant.
    No. 72-2929.
    United States Court of Appeals, Fifth Circuit.
    Oct. 12, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 20, 1973.
    W. W. Kilgarlin, Edward A. Mallett, Houston, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Ellis C. McCullough, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   PER CURIAM:

The appellant David Elbert Mackey was charged jointly with one Jose Jesus Orosco Perez (Orosco) in both counts of a two-count indictment with offenses involving 150 pounds of marijuana: unlawful importation in violation of Title 21, U.S.C., §§ 952 and 960(a)(1), Count I, and unlawful possession with intent to distribute the marijuana in violation of Title 21, U.S.C., § 841(a)(1), Count II. The jury found Mackey guilty of both counts and he was sentenced to confinement for three years under Count I and two years under Count II to be followed by a special parole term of two years. Execution of the sentence under Count I, the importation count, was suspended with supervised probation for five years. This appeal followed.

We fail to find prejudicial error demonstrated by any or either of the several grounds of appeal advanced by appellant Mackey: (1) whether the trial judge should have granted his motion to suppress the contraband seized as the result of a warrantless search of a 1965 Oldsmobile driven by Mackey; (2)'whether the evidence was sufficient to support conviction on Count I, §§ 952 and 960(a), the importation count, since his arrest in possession of a portion of the marijuana occurred after its earlier seizure and confiscation by the customs authorities at the border, inasmuch as the later search occurred while the contraband and the car containing it were under government surveillance and (arguably) government control; (3) whether the evidence was sufficient to support the conviction under Count II, the § 841(a) possession count, based on the search referred to in (2) above; (4) whether Mackey’s Fifth Amendment rights were violated during the prosecution’s closing argument to the jury; (5) whether the two counts were improperly submitted to the jury as being inconsistent, one with the other; and (6) whether Mackey’s Fifth and Sixth Amendment rights were violated by the jury selection procedure employed in the Southern District of Texas, and the trial jury’s being constituted without the venire including persons between 18 and 25 years of age.

Affirmed.

      . This motion was denied after a pre-trial evidentiary hearing by the trial judge in a detailed memorandum and order, setting forth the evidence developed and fully explicating the reasons for the decision. See United States v. Perez and Mackey, S.D.Tex. 1972, 364 F.Supp. 1217.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Felix COX, Defendant-Appellant.
    No. 73-2645
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 11, 1973.

      Pat E. Dwyer, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

This is an appeal from a conviction on a guilty plea for unlawfully,, knowingly and willfully obstructing and retarding the passage of mail in violation of 18 U.S.C. § 1701 (1970). At the arraignment, appellant was apprised of his eligibility for sentencing under both § 1701, which authorizes a sentence of up to six months and fine of up to one hundred dollars or both, and the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 5010 (1970), which provides for either probation or commitment up to four years and unconditional discharge on or before six years.

Appellant’s first contention is that the trial court erred in not permitting his counsel to inspect the pre-sentence report. It is well established that whether to grant or refuse a request to review the pre-sentence report is discretionary with the trial court. See United States v. Frontero, 452 F.2d 406 (5th Cir. 1971). Appellant fails to show the manner in which such discretion was abused here and we fail to discern any. Our disposition of this contention is buttressed by the fact that appellant failed to request permission to see the pre-sentence report in the district court. See Roeth v. United States, 380 F.2d 755 (5th Cir. 1967).

Appellant’s second contention is that his counsel’s inability to express a preference to the United States Department of Probation as to the sentence to be imposed resulted in an impairment of his right to counsel. We also find this claim to be without merit.

Judgment affirmed.