author: SPOTTSWOOD W. ROBINSON, III, Circuit Judge: FAHY, Senior Circuit Judge, ROBB, Circuit Judge:

text:
    John J. DONNELLY, Petitioner, v. Honorable Barrington D. PARKER et al., Respondents.
    No. 73-1259.
    United States Court of Appeals, District oi( Columbia Circuit.
    Aug. 21, 1973.

      Charles B. Sullivan, Jr., Washington, D. C., was on the petition for writ of mandamus for petitioner.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Peter R. Reilly, Asst. U. S. Attys., were on the opposition to the petition for respondent Parker.
    Philip N. Margolius, Washington, D. C., was on the opposition to the petition for respondent Kunz.
    Calvin H. Cobb, Jr., and William G. Christopher, Washington, D. C., were on the opposition for respondent Ferry & Co., Inc.
    Before FAHY, Senior Circuit Judge, and ROBINSON and ROBB, Circuit Judges.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This case is before the court on a petition for a writ of mandamus directing the Honorable Barrington D. Parker, a United States District Judge for the District of Columbia, to order physical and mental examination of Catherine W. Kunz, the .plaintiff named in an action brought against petitioner and another in the District Court. Judge Parker denied petitioner’s motion for the examinations, and the validity of that ruling is a subject of lively argumentation here. We find it unnecessary to enter the debate on that score for we accept the further contention that, in the circumstances presented here, the ruling is not reviewable by way of mandamus. We accordingly deny the writ.

I

Petitioner is an attorney practicing in the District of Columbia. He was joined as a party defendant in a suit filed in the name of Mrs. Kunz, a former client. The complaint therein alleges that petitioner caused an unauthorized disposition to be made of securities owned by Mrs. Kunz, and it seeks a return of the securities or damages.

Petitioner defends on the ground that Mrs. Kunz gave him ownership of the securities in partial payment of a fee for services rendered in her behalf. Petitioner also says that Mrs. Kunz was satisfied with the services, and that she is not the moving spirit behind the litigation. In fact, asserts petitioner, subsequent to completion of the services, her health deteriorated to the point that she lacked capacity to bring the action.

That Mrs. Künz has been victimized by sudden and serious illness is conceded. The discord, rather, is over the condition in which the illness has left her and its impact upon the proceeding. The dispute ripened for judicial consideration when petitioner gave notice that he would take Mrs. Kunz’ deposition. Her counsel then moved for an order barring that activity on the ground that she was “unable to withstand the rigors of a deposition and is further in such a state of mental and physical debility that she is unable at the present time to answer questions concerning this matter.” The .motion was supported by the affidavit of Mrs. Kunz’ attending physician stating that she “is not physically or mentally able to undergo an oral deposition and may not be fit to do so for some time to come.” The affidavit added that Mrs. Kunz “is approximately 76 years old and the rigors of an oral deposition at this time would endanger her health and life.” Judge Parker granted the motion, and the deposition was thus precluded.

Promptly thereafter, petitioner filed his own motion for an order directing physical and mental examinations of Mrs. Kunz. The motion warned that in the event that the examinations disclosed mental disability, petitioner would move to dismiss the lawsuit as spurious. The motion was accompanied by petitioner’s affidavit stating his belief that the suit had been filed without Mrs. Kunz’ authority. The motion was opposed on grounds that Mrs. Kunz’ physical-mental condition was not in controversy, and that good cause for the examinations had not been shown. The opposition also claimed that Mrs. Kunz was competent when she obtained counsel and authorized him to sue. Judge Parker denied the motion and petitioner,

now invoking the All Writs Act, seeks relief at the hand of this court.

II

As the Supreme Court admonishes, “[t]he peremptory writ of mandamus has traditionally been used in the federal courts only ‘to confine an inferi- or court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” That is not to say, however, that every jurisdictional excess or omission will support a call for mandamus against a federal judge. For “[w]hile the courts have never confined themselves to an arbitrary and technical definition of ‘jurisdiction,’ it is clear that only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” And while in an unusual case mandamus may lie to enforce the performance of a judicial responsibility, it is well settled that it cannot be used as a substitute for appeal. The proponent of mandamus has “the burden of showing that [his] right to issuance of the writ is ‘clear and indisputable.’ ”

Plainly, in the case at bar, the District Judge did not exceed his jurisdiction — in any real sense of the word. Capacity of an individual, not acting in a representative character, to sue or be sued in the federal courts is ordinarily to be determined by the law of his domicile. The record before us does not permit a satisfactory conclusion as to where Mrs. Kunz is domiciled or, of course, as to just what her mentality may be, but these matters are of little moment to jurisdiction. If by the law of her domicile she can sue irrespective of actual mental incompetence, she may do so in any federal court. But even if the domiciliary law undertook to withdraw that attribute because of mental disability, litigation of her rights in the District Court is still to be governed by Federal Civil Rule 17(c). That rule provides that “[t]he court shall appoint a guardian ad litem for an . incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the . . . incompetent person.” So, state law may confer but not deny capacity to sue or defend federally, and the only effect of a party’s incompetence upon maintenance of the action is the possible need for appointment of a guardian ad litem or entry of a protective order. In no event is federal jurisdiction to entertain the cause diminished.

Ill

The only other claim open to petitioner was that the circumstances put Judge Parker under a duty to issue the examinatorial order sought. The evidence of the poor state of Mrs. Kunz’ health could, on petitioner’s challenge, have presented the occasion for an inquiry into her capacity to understand the meaning and effect of the litigation being prosecuted in her name. Beyond that, despite the earlier ruling adverse to petitioner’s effort to depose Mrs. Kunz, he was entitled to a fair opportunity to contest the affidavit averring that an attempt to do so would be unwise. And surely a court-ordered physical-mental examination of Mrs. Kunz, conducted under appropriate safeguards, might have developed important information to serve both of those purposes, and thus to materially advance the progress of the suit toward a final judgment on the merits.

In the present procedural posture of the case, however, these considerations are beside the point. They do not survive the threshold question whether the contested ruling can now be reviewed in a mandamus proceeding or whether review must await the District Court’s final disposition. As the Supreme Court has observed, “[a] 11 our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court.” Mandamus “does not ‘run the gauntlet of reversible errors’ ” ; it “may not be used to thwart the congressional policy against piecemeal appeals.” Only where an appeal can promise no more than “a clearly inadequate remedy” may the remedy of mandamus be resorted to.

The order denying the examinations, and foreclosing the discovery which petitioner sought thereby, was interlocutory and nonappealable. The cases denying review of discovery orders by mandamus are legion. Petitioner has not shown, nor are we able to perceive, any peculiar circumstance which would set this case apart as truly unusual. On the contrary, the most that can be urged is that Judge Parker erred in applying the standards for physical-mental examinations to the situation displayed, and mandamus simply does not reach to such an error.

The question is not whether petitioner can obtain review of the ruling on the examination issue, but whether he can do so now. Should petitioner’s defensive efforts in the District Court prove to be ultimately unsuccessful, he can litigate that ruling, if unchanged, on an appeal from the final judgment. No rights will be jeopardized, no irreparable injury will be suffered, nor will any position be irreversibly compromised. To be sure, petitioner may incur added expense, encounter added delay and perhaps even be subjected to an unnecessary trial, but “that inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable.”

In sum, “[t]he peremptory common-law writs are among the most potent weapons in the judicial arsenal,” and “[a]s extraordinary remedies, they are reserved for. really extraordinary causes.” The case before us is not of that character. The writ of mandamus which petitioner seeks must accordingly be denied.

Writ denied.

FAHY, Senior Circuit Judge,

concurring with a comment:

The comment has reference to the language of Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953) repeated in the present opinion of our court. The language conveys the view that the burden rests upon the petitioner for the writ of mandamus to show “that its right to issuance of the writ is ‘clear and indisputable.’ ” The “clear and indisputable” language in turn is taken from United States v. Duell, 172 U.S. 576,- 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899). I should suppose “indisputable” is to be read as somewhat synonymous with “clear,” for in Bankers Life itself there was a dissent by Mr. Justice Frankfurter, with whom Mr. Justice Jackson and Mr. Justice Minton joined. While the dissent was primarily to the effect that grant of the writ of certiorari in Bankers Life was improvident and therefore that the writ should be dismissed, Justice Frankfurter also stated:

The Court’s opinion does not help decision when a party is dismissed from a litigation for reasons not as obviously compelling as those in this case. It necessarily leaves open the question whether such a ruling by a district judge may be reviewed by mandamus, without awaiting the completion of the entire litigation, in circumstances where postponement of review would involve a protracted trial, entailing heavy costs and great inconvenience. Compare Ex parte Skinner & Eddy Corp., 265 U.S. 86, 95-96, 44 S.Ct. 446, 448, 68 L.Ed. 912, with Ex parte Chicago, R.I. & P.R. Co., 255 U.S. 273, 41 S.Ct. 288, 65 L.Ed.-631. This Court ought not to be called upon to hold that where a district judge refused to entertain a “frivolous” claim, mandamus will not issue to compel him to entertain it.

346 U.S. at 388, 74 S.Ct. at 150.

In Ex parte Skinner & Eddy Corp., 265 U.S. 86, 95-96, 44 S.Ct. 446, 68 L. Ed. 912, thus referred to, it is said mandamus is an extraordinary remedial process awarded not as a matter of right but in the exercise of a sound judicial discretion. Weight is thus added to the view indicated in Justice Frankfurter’s dissent that the writ may issue in disputable circumstances. An “indisputable” standard argues for an unduly rigid rule. Such rigidity illustrates the unwisdom, as it seems to me, of phrasing principles with respect to process or to judicial review which not only cannot take into consideration unknown and variable situations which may arise, but which at times apply a brake to the fair administration of justice.

ROBB, Circuit Judge:

I agree that the writ must be denied. The petitioner contends that he is entitled to an order for “the physical and mental examination of the plaintiff, Ca-tharine W. Kunz, for the purpose of determining whether she had the capacity to bring the action and whether she has the capacity to maintain the action. . ” I think the district judge, in the exercise of his discretion, properly refused to order the requested examination.

The record discloses without contradiction that on October 1, 1971 counsel for Mrs. Kunz wrote to the petitioner demanding the return of certain of her assets that were in his possession. He did not respond to this demand. In December 1971 and January 1972 she presented her complaint to the Grievance Committee and to the Federal Bureau of Investigation. On April 26, 1972 she retained counsel to file suit; on April 28 she discussed the matter with an Assistant United States Attorney; and her suit was filed on June 5, 1972. On May 15, 1972 Mrs. Kunz suffered the stroke which the petitioner claims left her mentally incompetent.

In my judgment the issue raised by the petitioner is without substance, in light of the facts disclosed by the record. I find nothing to suggest that counsel for Mrs. Kunz should have refrained from filing her lawsuit, as he was retained to do, or should have withdrawn it, because she had become ill. Indeed, had counsel failed to carry out his client’s instructions he might have been guilty of professional misconduct.

Even assuming that Mrs. Kunz became mentally incompetent on May 15, 1972 this did not automatically terminate her counsel’s authority to file and prosecute her suit. Her illness did not infect her cause of action and in the absence of a judicial declaration of incompetency she could sue in her own name and maintain her suit. Ritter v. Ritter, 219 Ind. 487, 38 N.E.2d 997 (1942); Willett v. Webster, 337 Mass. 98, 148 N.E.2d 267 (1958); Withers v. Tucker, 32 Wis.2d 496, 145 N.W.2d 665 (1966); Neely v. Hogan, 62 Misc.2d 1056, 310 N.Y.S.2d 63 (1970). See Annot., 71 A.L.R.2d 1247.

Whether Mrs. Kunz is now able to give a deposition or otherwise respond to interrogatories is a question for the district court to decide- in appropriate proceedings. If the district judge wishes to give consideration to the appointment of a guardian ad litem for Mrs. Kunz he may do so; but these matters are not before us.

      . But see text infra at notes 13-19.

      . “When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” Fed.R.Civ.P. 35(a).

      . See note 2, supra. See also Schlagenhauf v. Holder, 379 U.S. 104, 116-122, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).

      . Counsel filed in the District Court an affidavit stating that Mrs. Kunz, while lucid, had personally appeared in his office and affirmed the allegations on which the suit is founded. Counsel’s theory is that notwithstanding her subsequent illness, he had full authority to proceed in her behalf. But see note 20, infra.

      . “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (1970).

      . Petitioner joined Mrs. Kunz and his code-fendant with Judge Parker as corespondents to the petition for mandamus. He now asks for an order requiring counsel for Mrs. Kunz to show his authority to represent her here. The cornerstone of this request is the premise which is basic to petitioner’s bid for mandamus — that Mrs. Kunz may be mentally incompetent — and from this petitioner argues that if in fact she is incompetent, her counsel’s authority has terminated. See note 20, infra. We have undoubted power to require counsel before us to demonstrate their authority, e. g., Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 319, 47 S.Ct. 361, 71 L.Ed. 658 (1927), but the circumstances militate against an exercise of discretion to require it here. Mrs. Kunz’ physical-mental condition remains a burning issue in the District Court; indeed, it may be the pivot upon which much of the case on the merits will turn. That court is the forum in which a resolution of the issue should be undertaken in the first instance. Moreover, this court is not equipped to embark upon the kind of evidentiary exploration which a controversy of this sort obviously demands. Counsel should be permitted to continue his representation, both here and in the District Court, until the question can suitably be determined there.

      . Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). See, to the same effect, Schlagenhauf v. Holder, supra note 3, 379 U.S. at 109-110, 85 S.Ct. 234; Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106 (1953).

      . Will v. United States, supra note 7, 389 U.S. at 95, 88 S.Ct. at 273, quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). See, to the same effect, Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947).

      . E. g., McClellan v. Carland, 217 U.S. 268, 279-282, 30 S.Ct. 501, 54 L.Ed. 762 (1910) (refusal to proceed with case) ; In re Winn, 213 U.S. 458, 465-468, 29 S.Ct. 515, 53 L. Ed. 873 (1909) (refusal to remand case) ; In re Grossmayer, 177 U.S. 48, 49-50, 20 S.Ct. 535, 44 L.Ed. 665 (1900) (refusal to take jurisdiction) ; Ex parte Schollenberger, 96 U.S. (6 Otto) 369, 374-378, 24 L.Ed. 853 (1878) (refusal to take jurisdiction) ; Stafford v. Union Bank, 58 U.S. (17 How.) 275, 283-284, 15 L.Ed. 101 (1854) (refusal to issue execution) ; Life & Fire Ins. Co. v. Wilson, 33 U.S. (8 Pet.) 291, 301-304, 8 L. Ed. 949 (1834) (refusal to sign judgment) ; Yablonski v. UMW, 147 U.S.App.D.C. 193, 195, 454 F.2d 1036, 1038 (1971), cert, denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed. 2d 816 (1972) (refusal to follow mandate).

      . See discussion in text infra at notes 23-26.

      . Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 384, 74 S.Ct. at 148, quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899). Accord, Will v. United States, supra note 7, 389 U.S. at 96, 88 S.Ct. 269.

      . As the Court stated in Will v. United States, supra note 7, 389 U.S. at 98 n. 6, 88 S.Ct. at 275, it will not do “to argue that a judge has no ‘power’ to enter an erroneous order. Acceptance of this semantic fallacy would undermine the settled limitations upon the power of an appellate court to review interlocutory orders. Neither ‘jurisdiction’ nor ‘power’ can be said to ‘run the gauntlet of reversible errors.’ Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147 [98 L.Ed. 106] (1953). Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as ‘abuse of discretion’ and ‘want of power’ into interlocutory review of nonappealable orders on the mere ground that they may be erroneous.”

      . Fed.R.Civ.P. 17(b). See Slade v. Louisiana Power & Light Co., 418 F.2d 125, 126 • (5th Cir. 1969), cert, denied, 397 U.S. 1007, 90 S.Ct. 1233, 25 L.Ed.2d 419 (1970) ; Brimhall v. Simmons, 338 F.2d 702, 706 (6th Cir. 1964) ; Redditt v. Hale, 184 F.2d 443, 447 (8th Cir. 1950) ; 6 C. Wright & A. Miller, Federal Practice § 1571 (1971). But see Fallat v. Gouran, 220 F.2d 325, 328-329 (3d Cir. 1955).

      . Seemingly, the point has not been directly litigated in the District Court.

      . Bengtson v. Travelers Indem. Co., 132 , F.Supp. 512, 517 (W.D.La.1955), aff’d, 231 F.2d 263 (5th Cir. 1956) ; First Nat’l City Bank v. Gonzalez & Co. Sucr. Corp., 308 F.Supp. 596, 600 (D.Puerto Rico 1970) ; 6 C. Wright & A. Miller, Federal Practice § 1571 (1971). See also Hanna v. Plumer, 380 U.S. 460, 469—474, 85 S.Ct. 1136, 14 L. Ed.2d 8 (1965) ; Constantine v. Southwestern Louisiana Institute, 120 F.Supp. 417, 418—419 (W.D.La.1954).

      . “Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.” Fed.R.Civ. P. 17(e).

      . See authorities cited supra notes 13, 15.

      . See Roberts v. Ohio Cas. Ins. Co., 256 F.2d 35, 38-39, 68 A.L.R.2d 747 (5th Cir. 1958) ; United States v. Noble, 269 F.Supp. 814, 815 (E.D.N.Y.1967).

      . See New Mexico Veterans’ Serv. Comm’n v. United Van Lines, 325 F.2d 548, 550 (10th Cir. 1963). See also Till v. Hartford Accident & Indem. Co., 124 F.2d 405, 408-409 (10th Cir. 1941) ; Rutland v. Sikes, 203 F.Supp. 276, 277 (E.D.S.C.), aff’d, 311 F.2d 538 (4th Cir. 1962), cert, denied, 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053 (1963).

      . As we have said, Fed.R.Civ.P. 17 (c) directs district courts to either appoint guardians ad litem or fashion protective orders for incompetent persons not otherwise represented. See text supra at notes 15-19. Moreover, insanity or other severe mental difficulty of a client may operate to suspend or terminate a preexisting attorney-client relationship. See Sullivan v. Dunne, 198 Cal. 183, 244 P. 343, 346 (1926) ; Evans v. York, 217 S.W.2d 749, 751 (Ct.App.Mo. 1949) ; Merritt v. Merritt, 27 App.Div. 208, 50 N.Y.S. 604, 605-608 (1898). See also Jackson v. Hall, 139 Kan. 832, 836, 32 P.2d 1055, 1057 (1934) ; Lewis v. Commissioner of Banks, 286 Mass. 570, 575, 190 N.E. 790, 791 (1934) ; Restatement (Second) of Agency § 122(1) (1958). Cf. Kimmie v. Terminal R. Ass’n, 344 Mo. 412, 126 S.W.2d 1197, 1200 (1939).

      . A physically and mentally-able litigant bears obligation to respond to an effort by his adversary to obtain deposition-discovery of unprivileged information relevant to the subject matter in suit. Fed.R.Civ.P. 30(a), 36(b).

      . See Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir.), cert, denied, 404 U.S. 913, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971). See also Smith v. United States, 174 F.Supp. 828 (S.D.Cal.), appeal dismissed, 272 F.2d 228 (9th Cir. 1959), cert, denied, 362 U.S. 954, 80 S.Ct. 868, 4 L.Ed.2d 871 (1960).

      . Will v. United States, supra note 7, 389 U.S. at 96, 88 S.Ct. at 274, 19 L.Ed.2d 305. See also 28 U.S.C. §§ 1291, 1292 (1970) ; Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct. 540, 84 L.Ed. 783 (1940). “This general policy against piecemeal appeals takes on added weight in criminal cases,” Will v. United States, supra note 7, 389 U.S. at 96, 88. S.Ct. at 274, but undeniably the policy retains its potency in civil litigation.

      . Will v. United States, supra note 7, 389 U.S. at 104, 88 S.Ct. at 278, quoting Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 382, 74 S.Ct. 145, 98 L.Ed. 106.

      . Parr v. United States, 351 U.S. 513, 520 521, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956). Accord, Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 382-383, 74 S.Ct. 145; Ex parte Fahey, supra note 8, 332 U.S. at 260, 67 S.Ct. 1558, 91 L.Ed. 2041; Roche v. Evaporated Milk Ass’n, supra note 7, 319 U.S. at 25, 30, 63 S.Ct. 938, 87 L.Ed. 1185.

      . Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 385, 74 S.Ct. 145; Ex parte Fahey, supra note 8, 332 U.S. at 260, 67 S.Ct. 1558.

      . Compare English v. Cunningham, 108 U. S.App.D.C. 356, 357, 282 F.2d 839, 840 (1960) ; Pauls v. Secretary of Air Force, 457 F.2d 294, 298 (1st Cir. 1972) ; American Express Warehousing, Ltd. v. Trans-america Ins. Co., 380 F.2d 277, 281-282 (2d Cir. 1967) ; Borden Co. v. Sylk, 410 F.2d 843, 845, 846 (3d Cir. 1969) ; Gosa v. Securities Investment Co., 449 F.2d 1330, 1332-1333 (5th Cir. 1971) ; Zalatuka v. Metropolitan Life Ins. Co., 108 F.2d 405, 406-407 (7th Cir. 1939). There are exceptions, not applicable here, to the rule of nonappeala-bility, E. g., Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 68-69, 351 F.2d 762, 765-766 (1965) ; Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1122-1123 (5th Cir.), cert, denied, Trefina A. G. v. United States, 400 U.S. 878, 91 S. Ct. 118, 27 L.Ed.2d 115 (1970).

      . American Express Warehousing, Ltd. v. Transamerica Ins. Co., supra note 27, 380 F.2d at 283-284; Belships Co., Ltd. Skibs A/S v. Republic of France, 184 F.2d 119 (2d Cir. 1950) ; Bank Line, Ltd. v. United States, 163 F.2d 133, 136, 137 (2d Cir. 1947) ; Byram Concretanks, Inc. v. Meaney, 286 F.2d 170, 171 (3rd Cir. 1961) ; National Bondholders Corp. v. McClintic, 99 F.2d 595, 598-599 (4th Cir. 1938) ; In re Illinois Cent. R.R., 192 F.2d 465, 466 (5th Cir. 1951) ; Chemical § Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962) ; Fisher v. Delehant, 250 F.2d 265, 269-270 (8th Cir. 1957) ; Belfer v. Pence, 435 F.2d 121, 122-123 (9th Cir. 1970) ; Paramount Film Distrib. Corp. v. Civic Center Theatre, 333 F.2d 358, 360-361 (10th Cir. 1964)See also C. Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751, 775-76 (1957) ; P. Carrington, The Power of District Judges and the Responsibility of Courts of Appeal, 3 Ga.L.Rev. 507, 513 (1969).
      See, however, Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927), and Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140, 60 L.Ed. 368 (1915), in each of which the Supreme Court ordered a writ of mandamus directed to a district court in the exercise of the power it formerly possessed to issue “writs of mandamus in cases, . . . warranted by the principles and usages of law, to any courts appointed . . . under the authority of the United States.” Judiciary Act of 1789, 1 Stat. 81; Act of March 3, 1911, ch. 231, 36 Stat. 1156. This power continued until passage of the Act of June 25, 1948, ch. 646, 62 Stat. 944, 28 U.S.C. § 1651 (1970), by which the authority of all federal courts is now limited to “writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” (emphasis supplied). See In re Josephson, 218 F.2d 174, 177-179 (1st Cir. 1954). As that case warns,
      [D]ecisions of the Supreme Court of the United States, at least prior to 1948, supporting the issuance, by that Court, of a writ of mandamus directed to a lower federal court, may not safely be relied upon by an intermediate court of appeals as authority for the issuance by the latter court of a writ of mandamus directed to a district court within the circuit. The reason is that the Supreme Court might have been exercising a different sort of power from the strictly auxiliary power given to us under the all writs section.
      218 F.2d at 179 (emphasis in original). See also La Buy v. Howes Leather Co., 352 U.S. 249, 265-266, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) (dissenting opinion).

      . We recognize that petitioner’s arguments encompass the contention that the rulings complained of impinged on Fed.R.Civ.P. 17(c) and 35(a). See notes 2, 16, supra. While a pattern of noncompliance with the federal rules may warrant an invocation of mandamus, La Buy v. Howes Leather Co., supra note 28, 352 U.S. at 257-258, 77 S.Ct. 309; see also Will v. United States, supra note 7, 389 U.S. at 99-100, 102-104, 88 S. Ct. 269; Los Angeles Brush Mfg. Corp. v. James, supra note 28, 272 U.S. at 706, 47 S.Ct. 286; cf. McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940), the Court has made it clear that La Buy “is simply inapposite where there is no showing of a persistent, disregard of the federal rules.” Will v. United States, supra note 7, 389 U.S. at 104 n. 14, 88 S.Ct. at 278.
      We are advertent, too, to Schleganhauf v. Holder, supra note 3, where the Court held that mandamus was appropriately used to review a district court order subjecting a defendant in a civil case to physical and mental examinations. The Court rested its holding on the presence of “the basic, undecided question of whether a district court could order the mental or physical examination of a defendant,” 379 U.S. at 110, 85 S. Ct. at 238, 13 L.Ed.2d 152, and, quite significantly, stated:
      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, supra, at 382. 379 U.S. at 112, 85 S.Ct. at 239. See also Will v. United States, supra note 7, 389 U. S. at 104-105 n. 14, 88 S.Ct. 269.

      . Will v. United States, supra note 7, 389 U.S. at 104, 88 S.Ct. 269; Schleganhauf v. Holder, supra note 3, 379 U.S. at 112, 85 S.Ct. 234; Parr v. United States, supra note 25, 351 U.S. at 520-521, 76 S.Ct. 912; Roche v. Evaporated Milk Ass’n, supra note 7, 319 U.S. at 30, 63 S.Ct. 938. See also note 29, supra.

      . Compare Texaco, Inc. v. Borda, 383 F.2d 607, 608-610 (3d Cir. 1967) (order denying leave to depose 71-year-old witness) ; Har-tley Pen Co. v. United States Dist. Ct., 287 F.2d 324, 328-332 (9th Cir. 1961) (order requiring disclosure of trade secrets).

      . Investment Properties Int’l, Ltd. v. IOS Ltd., 459 F.2d 705, 707, 708 (2d Cir. 1972) (order vacating notices of taking of depositions, virtually precluding discovery of facts on which jurisdiction and standing depended). Compare discussion in text supra at notes 13-19.

      . Compare United States v. Hemphill, 369 F.2d 539, 543-544 (4th Cir. 1966) (risk of contempt citation).

      . Roche v. Evaporated Milk Ass’n, supra note 7, 319 U.S. at 30, 63 S.Ct. at 943. Accord, Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 382-383, 74 S.Ct. 145, 98 L.Ed. 106; United States Alkali Export Ass’n v. United States, 325 U.S. 196, 202-203 (1945). See also Will v. United States, supra note 7, 389 U.S. at 97 n. 5. “In strictly circumscribing piecemeal appeal, Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous.” Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 383, 74 S.Ct. at 148.

      . Will v. United States, supra note 7, 389 U.S. at 107, 88 S.Ct. at 280, 19 L.Ed.2d 305. Accord, Ex parte Fahey, supra note 8, 332 U.S. at 259, 67 S.Ct. 1558.

      . Ex parte Fahey, supra note 8, 332 U.S. at 260, 67 S.Ct. at 1559. Accord, Will v. United States, supra note 7, 389 U.S. at 107, 88 S.Ct. 269; Parr v. United States, supra note 25, 351 U.S. at 520, 76 S.Ct. 912.

      . The cases cited by Judge Robinson in his opinion, footnote 20, do not hold to the contrary, and in any event can be distinguished on their facts.
      In Sullivan v. Dunne, 198 Cal. 183, 244 P. 343, 346 (1926), a proceeding for the appointment of a guardian for an incompetent, a lawyer attempted to inject himself into the case on the strength of a power of attorney executed six months before. The court found that the lawyer had never been authorized to appear in the matter. In Evans v. York, 217 S.W.2d 749, 751 (Ct.App. Mo.1949), a lawyer sued for compensation for services performed pursuant to a general power of attorney authorizing the performance of legal and personal services. The court held that the lawyer could not recover for services performed after her client was adjudicated insane and a guardian was appointed. Merritt v. Merritt, 27 App. Div. 208, 50 N.Y.S. 604, 605-608 (1898), was an action to foreclose a mortgage which had been executed in the name of the mortgagor by her attorney in fact. The court held that the defendant was entitled to prove that at the time of the execution of the mortgage the mortgagor was non compos mentis and this fact was known to the mortgagee when he took the mortgage.


source: Caselaw Access Project

author: FAHY, Senior Circuit Judge:

license: Public Domain

text:
    The AMERICAN CIVIL LIBERTIES UNION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
    No. 73-1346.
    United States Court of Appeals, District of Columbia Circuit.
    Sept. 24, 1973.

      Joseph A. Marino, Associate Gen. Counsel, Gregory M. Christopher, F. C. C., and Howard E. Shapiro, Atty., Dept, of Justice, were on the motions to dismiss and to transfer for respondents.
    Dennis Grossman and Albert H. Kramer, Washington, D. C., were on the opposition to the motions for petitioner.
    Before FAHY, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.
   FAHY, Senior Circuit Judge:

The Federal Communications Commission has moved to dismiss as untimely a petition filed by the American Civil Liberties Union to review a Commission order denying a rehearing, or to transfer the petition to the Court of Appeals for the Ninth Circuit. For reasons to be stated- we deny the motion to dismiss and grant the motion to transfer.

I

A petition for review of an order of the Commission must be filed within 60 days after entry of the final order in the proceeding. 28 U.S.C. § 2344 (1970). The time within which the petition must be filed in a proceeding to which section 402(a) of the Communications Act applies “shall be computed from the date upon which public notice is given of orders disposing of all petitions for rehearing filed with the Commission in such proceeding or case . . 47 U.S.C. § 405 (1970). The order which petitioner asks us to review was issued on June 26, 1972. It denied ACLU’s petition for rehearing of an order previously issued in the course of the protracted and then incompleted inquiry by the Commission with respect to regulations of Cable Television (CATV). The proceeding was entitled Commission Docket No. 18397. It was initiated in December, 1968, and was not completed until January 31, 1973, at which latter date the Commission denied all then pending petitions for reconsideration.

The ACLU filed in this court the instant petition for review on April 2, 1973, more than 60 days after its own petition for rehearing had been denied on June 26, 1972, but within 60 days from the Commission’s order of January 31, 1973.

Section 405 of the Communications Act clearly contemplates that in a proceeding such as Docket No. 18397 there may be several petitions for rehearing filed with the Commission and acted upon at different times before final action disposing of all. Though the Commission now contends that the hearings held with respect to the particular order relevant to ACLU’s petition for review, and the hearings with respect to subsequent orders in Docket No. 18397, were separate and distinct, it has previously referred to this over-all inquiry in Docket No. 18397 as a single proceeding. See, e.g., Notice of Proposed Rule Making in Docket 18894, 25 F.C.C.2d 38 (1970). The Commission chose the structure of its proceeding, and during its course omitted to segregate the issues relevant to its several orders for separate treatment under different docket numbers. A party to the proceeding therefore was justified in relying upon the Commission’s plan under which all orders in Docket No. 18397 were issued in the course of a single on-going proceeding. Hence, even though during the proceeding the Commission intermittently issued several orders, each of which if considered alone might be considered final, but all of which preceded the ultimate order disposing of the last pending petition for rehearing, the statute reasonably construed authorizes a petition for review to be filed within sixty days from the date of the Commission’s “final” order of January 31, 1973. ACLU’s petition for review therefore was timely filed.

II

The Commission has also moved for transfer of ACLU’s petition of April 2, 1973, to the Court of Appeals for the Ninth Circuit where a petition had been filed on February 28, 1973 for review of the order of January 31, 1973, and where the record in Docket No. 18397 had been filed by the Commission March 22, 1973. On the transfer problem 28 U.S.C. § 2112(a) (1970) provides in pertinent part as follows:

If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed.

This provision contemplates judicial review of particular agency action by the same court. The parties are spared simultaneous participation in proceedings in more than one circuit, and forum shopping is discouraged.

It is the contention of the ACLU that although the orders of which review is sought respectively in our court and the Ninth Circuit, were issued during the course of the same proceeding, nevertheless they are not “the same order” within the meaning of section 2112(a). Alternatively, the ACLU argues that transfer of its petition is not required because prior to the filing of both its petition and that filed with the Ninth Circuit there had been pending in this court an earlier petition for review of the Commission order of June 26, 1972 in Docket No. 18397. The petition referred to was disposed of by this court on April 6, 1973. National Ass’n of Theatre Owners v. F.C.C., 155 U.S.App.D.C. 281, 477 F.2d 450. With respect to this contention we think it would be inappropriate to accept as controlling on the issue of transfer the date of filing of a petition for review which had been acted upon finally before the motion to transfer is made. Cf., Far East Conference v. F.M.C., 119 U.S. App.D.C. 110, 112, n. 1, 337 F.2d 146, 148, n. 1 (1964), cert, denied, 379 U.S. 991, 85 S.Ct. 704, 13 L.Ed.2d 611 (1965). It is not possible to consolidate a pending petition with one involved in litigation which has ended.

The contention that the two orders of which review is sought are not the same presents a more difficult problem. True it is that the particular subject matter of the two petitions is not the same; but, as we have seen, the orders were issued during the course of the same proceeding and are to be reviewed on the same record made in Docket No. 18397. The several orders issued in the course of that proceeding represent the staggered implementation of a single, multi-faceted agency undertaking. In this situation we think section 2112(a) does not preclude transfer of the present petition of the ACLU merely because the order it challenges is distinct from that denying reconsideration of the order of which review is sought in the Ninth Circuit. The Commission, though it found it preferable, was not required intermittently to issue orders partially implementing the CATV regulations considered in Docket No. 18397, rather than to wait until the hearings with respect to all aspects of its proposed action were completed and the record in the Docket closed. Had the Commission issued its orders in the over-all proceeding at the same time in a single “Report and Order,” there would be no dispute that the “first instituted” terms of section 2112(a) would gather to the same Court of Appeals all petitions for review subsequently filed, even though the Commission had not acted simultaneously upon each petition for rehearing.

Although section 2112(a) would seem not to have been drafted in contemplation of the circumstances now before us, the court is not barred from interpreting the section in a manner to embrace the situation. See, Cardozo, The Nature of Judicial Process, in Selected Writings of Benjamin Nathan Cardozo, 111 (1957). The public policy underlying section 2112(a) requires that it “be liberally applied to permit review by a single court of closely related matters where appropriate for sound judicial administration.” Eastern Air Lines, Inc. v. C.A.B., 122 U.S.App.D.C. 375, 379, 354 F.2d 507, 511 (1965). In this prolonged and complex proceeding, unless this review provision is construed to permit the transfer of the petition of the ACLU it might be necessary to file the same record in different circuits in which various like petitions could be filed, resulting in the action of the agency being subjected to fragmentary review by different courts.

Consistently with its basic purposes and in light of its full context, we now construe the terms of section 2112(a) “the same order,” to be, in this proceeding, that order which became the subject of a petition to review first filed after the final order of January 31, 1973, and which first drew to the court where filed the record in the proceeding.

Accordingly, the motion of the Commission to transfer to the Ninth Circuit the petition of the ACLU is granted.

It is so ordered.

      . Memorandum and Opinion and Order in Docket No. 18397, 39 F.C.C.2d 377 (1973).

      . Memorandum Opinion and Order on Reconsideration of the Cable Television Report and Order, 36 F.C.C.2d 326.

      . Cable Television Report and Order, 36 F. C.C.2d 143, issued February 3, 1972.


author: PER CURIAM: Per Curiam. HOWARD F. CORCORAN United States District Judge PER CURIAM. FAHY, Senior Circuit Judge:' PER CURIAM.

text:
    Robert W. BAKER, Appellant, v. Thomas R. SARD and Donald J. Sheehy. Robert W. BAKER, Appellant, v. Thomas R. SARD, Chairman, Board of Parole, et al.
    Nos. 22757, 22758.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 12, 1970.
    Decided Feb. 16, 1972.
    Suggestion for Rehearing En Banc Granted April 14, 1972.
    Argued on Rehearing En Banc May 31, 1972.
    Order Granting Suggestion for Rehearing En Banc Vacated Oct. 12, 1972.
    On Panel Rehearing Decided Aug. 27, 1973 and Judgment of Feb. 16, 1972 Vacated.
    See also 137 U.S.App.D.C. 139, 420 F.2d 1342.
    W. Carter Bowles, Jr., Washington, D. C. (appointed by this court), for appellant.
    Richard W. Perkins, Atty., Dept, of Justice, of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom Thomas A. Flannery, U. S. Atty.

      at the time the briefs were filed, and John A. Terry and Nathan Dodell, Asst. U. S. Attys., were on the brief, for ap-pellees.
    Before FAHY, Senior Circuit Judge, and WRIGHT and ROBINSON, Circuit Judges.
   PER CURIAM:

These parole revocation cases are back on appeal after remand to the District Court for the taking of evidence and the making of factual findings as to certain issues on appeal. The findings of the District Court are not clearly erroneous and they dispose of most of the issues here. This opinion will therefore be limited to a consideration, of these remaining issues: whether execution of the parole violator warrant was invalid as a matter of law, and whether the Board’s failure to appoint counsel to represent appellant at the revocation hearing violated due process.

On October 28, 1955 appellant was sentenced to serve four to 13 years for housebreaking and larceny. On April 14, 1964, he was conditionally released from Lorton Reformatory pursuant to 18 U.S.C. § 4164 (1970), and the same day took a bus for California without reporting to the parole office in Washington, D. C. as he was required to do under the conditions of his release. On April 24, 1964 a warrant issued declaring him in violation of his conditional release. Despite efforts to locate and arrest him, appellant was not taken into custody under the warrant until May 7, 1968 in Redlands, California, one week after the 180-day terminal period provided in 18 U.S.C. § 4164 had begun to run.

Relying on Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1964), appellant contends that once the 180-day terminal period of his sentence began to run his freedom was unconditional, that he was no longer subject to the jurisdiction of the Board of Parole, and that consequently execution of the parole violator warrant one week after that time was invalid. In Birch the parole violation warrant was issued and executed during the 180-day period. Under those circumstances we did hold that the warrant was invalid, the Parole Board having lost jurisdiction over' Birch at the beginning of the 180 days. Birch went on, however, to say:

“It might well be, as was said in Lavendera v. Taylor, 234 F.Supp. 703, 705 (D.Kan.), ‘[a] parole violator’s warrant that is issued during the period of parole may be executed during the terminal 180-day period of the full sentence.’ [Emphasis in the original.] But that is not our case, though the warrant could have been issued prior to the beginning of the 180 days.”

123 U.S.App.D.C. at 159, 358 F.2d at 526. In the present case the warrant was issued long before the 180-day period began to run and, absent an unreasonable delay in execution of the warrant, jurisdiction of the Board is continued at least during that period. See Tirado v. Blackwell, 5 Cir., 379 F.2d 619 (1967), cert, denied, 390 U.S. 992, 88 S. Ct. 1186, 19 L.Ed.2d 1301 (1968); Taylor v. Godwin, 10 Cir., 284 F.2d 116 (1960), cert, denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961) ; Schiffman v. Wilkinson, 9 Cir., 216 F.2d 589 (1954), cert, denied, 348 U.S. 916, 75 S. Ct. 299, 99 L.Ed. 719 (1955).

The District Court found the Board’s action here in locating appellant and executing the warrant reasonable, and we find no basis for disagreement. The delay in executing the warrant was not the fault of the Board. The facts as found show that appellant left this jurisdiction on the day of his release and, despite the customary steps taken to locate and arrest a fugitive, the warrant, although issued immediately, was not executed for over four years. Under the circumstances the running of the 180 days in no way affected the jurisdiction of the Board. Compare Castillo v. United States, 2 Cir., 391 F.2d 710 (1968).

Appellant also claims he was denied his constitutional right to counsel at the parole revocation hearing. This court, sitting en banc in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, cert, denied, 375 U.S. 957, 84 S.Ct. 446, 11 L. Ed.2d 315 (1963), held that an indigent had no enforceable right, constitutional or otherwise, to have counsel appointed to represent him at such a proceeding Since Hyser the Supreme Court, in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), has held that appointed counsel for an indigent is required at probation revocation proceedings, and the Second and Tenth Circuits have held that due process considerations require application of the rule of Mempa to parole revocation hearings as well. See United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir., 443 F.2d 1079, cert, granted, judgment vacated, and case ordered dismissed as moot, 404 U.S. 879, 92 S.Ct. 196, 30 L.Ed.2d 159 (1971); Earnest v. Willingham, 10 Cir., 406 F.2d 681 (1969). Thus it appears that the rule of Hyser may be significantly eroded.

The judges of this panel, two of whom participated in Hyser, are of the view that Hyser, insofar as it denies counsel to indigents at parole revocation hearings, is no longer in the mainstream of the judicial development of prisoners’ rights and should be reconsidered by this court sitting en banc. Pending such reconsideration, we are constrained to apply its principles to this ease.

Affirmed.

APPENDIX A

ORDER

These causes came on to be heard on the records on appeal from the United States District Court for the District of Columbia, and were argued by counsel. On consideration thereof, it is

Ordered by the court that the records on appeal herein be remanded to the District Court for a hearing, including the taking of evidence, to determine:

1. Whether the four-year delay in executing the parole violator warrant was reasonable. In this connection, evidence concerning the steps taken by the United States in any attempt to execute the warrant should be received.

2. What conditions of release Baker was specifically informed of at the time of his release in April 1964.

3. Whether Baker’s efforts to obtain counsel in connection with the hearing before the Board of Parole were obstructed by the prison authorities.

4. (a) Whether the Board of Parole considered the, possibility of modifying the terms and conditions of Baker’s parole, as provided in 24 D.C.Code § 206 (1967), instead of the action it did take in terminating his parole and reinstitut-ing the remainder of his original sentence.

(b) If the Board did consider such alternatives, what the reasons were for its decision to reject them.

The Clerk of the District Court, following completion of the aforesaid remand proceedings, is directed to return to this court the records supplemented by the proceedings had on remand.

Per Curiam.

Dated: January 23, 1970

APPENDIX B

United States District Court for the District of Columbia

Robert Baker, Petitioner V. Thomas R. Sard and Donald J. Sheehy, Respondents Robert W. Baker, Petitioner V. Thomas R. Sard, Chairman, Board of Parole, et al., Respondents

Civil Action No. 2582-68

Civil Action No. 2520-68

FINDINGS OF FACT AND CONCLUSIONS OF LAW

These matters came before the Court pursuant to the Order of the United States Court of Appeals for the District of Columbia Circuit, filed January 23, 1970, in Nos. 22,757 and 22,758. This Court has held a hearing, on August 27, 1971, including the taking of evidence, at which plaintiff was present and was represented by counsel. The Court finds the facts and makes its conclusions of law, as follows:

Findings of Fact

1. Plaintiff was sentenced by this Court, on October 28, 1955 to a term of four to thirteen years for housebreaking and larceny. On April 14, 1964, plaintiff was conditionally released from Lor-ton Reformatory, to remain under the supervision of the District of Columbia Board of Parole until April 30, 1968. Exhibit 3.

“What conditions of release was Baker specifically informed of at the time of his release in April 1964?”

2. On March 4, 1964, T. M. Webb, institutional parole officer at Lorton met with plaintiff to discuss plaintiff’s April 1964 good time release plans. Webb reported that plaintiff was hostile to the good time release laws and contended that they are illegal. Webb further reported that he informed plaintiff that, if plaintiff left Lorton in April 1964, he would be accountable to the Parole Board, whether plaintiff cooperated or not. Exhibit 1.

3. On April 6, 1964, plaintiff was given his final instructions by Webb. Webb reported that plaintiff said he had read every law regarding Conditional Release, and that the Board had no authority over him. Webb asked plaintiff whether he had been told to report to the Washington Parole Office on the morning of his release. Plaintiff replied that he had been told, but was not saying he was going to report. Plaintiff stated that he was going to see a lawyer, and get an injunction against the Board. Exhibit 2.

4. The conditions of good time release were read and explained to plaintiff on April 6, 1964. They included the conditions:

1. That I will report immediately upon my release to the Washington Office of the Board of Parole, East Administration Building, 300 Indiana, N. W. for my instructions. [Emphasis in original]
2. That I will not go outside the limits fixed in this Certificate without first obtaining the approval of the Board of Parole through the Parole Officer in charge of my ease.
3. That I will, between the first and sixth days of each succeeding month, until my final release, make a full and truthful written report to the Board of Parole, East Administration Building, 300 Indiana Avenue, N. W., Washington 1, D. C., upon the form provided for that purpose, and that I will submit each such report to my Parole Officer for certification.
14. I understand that my limits of Good-Time Release have been designated by the Board as * District of Columbia. Exhibit 3.

5. Plaintiff testified that he never met with T. M. Webb concerning the conditions of release (Tr. 29); that he did not meet with anyone on the institutional parole staff before he was released (Tr. 29); that he was never told to report (Tr. 43) ; that the only interview he had before he was released was with Stanley Knupp, who was then Assistant Superintendent for Training and Treatment (Tr. 29-30); and that the only condition of release Knupp stated was that if plaintiff committed a crime he would be brought back. Plaintiff’s testimony is contradicted by the contemporaneous memoranda (Exhibits 1-3, see exhibit 4). Knupp testified that he never spoke to any inmate regarding his conditional release — it was not his job (Tr. 64); that he never told plaintiff that if he commits any felony he would be brought back (Tr. 64); that T. M. Webb was one of the institutional parole officers whose duties included briefing men when they became eligible for conditional release (Tr. 63). In an affidavit filed in this Court dated December 16, 1968 plaintiff stated that he was called up to the Institutional Parole Staff. Tr. 30. The Court finds the facts as stated in paragraphs 2, 3 and 4 above, and credits the testimony of Knupp. The Court does not credit the testimony of plaintiff.

“Whether the four-year delay in executing the parole violator warrant was reasonable. In this connection, evidence concerning the steps taken by the United States in any attempt to execute the warrant should be received.”

6. On April 20, 1964, Parole Officer Alfred G. Zimmerman requested that the Parole Board issue a warrant, which was issued on April 24, 1964. Exhibits 4 and 5.

7. By memorandum of April 27, 1964, the Supervisor Parole Unit transmitted to the Superintendent, D. C. Jail the folder and copies of the warrant pertaining to plaintiff. Exhibit 6. The memorandum reported that plaintiff’s whereabouts were unknown; and that his sister, Mrs. Regenia Lambert, lived at 220 Potomac Street, Cumberland, Maryland. By memorandum of the same date, the Chief of Detectives, District of Columbia Police Department, was advised that plaintiff was an absconder for whom a warrant was outstanding. Exhibit 7. On April 29, 1964, the Superintendent of the D. C. Jail sent copies of the warrant to the United States Marshal for the District of Maryland. Exhibit 8. Also on that date the Federal Bureau of' Investigation was asked to help locate plaintiff. Exhibit 9.

8. In 1964, where the only address given in connection with a warrant was that of relatives of the person sought in a place as distant from Baltimore as Cumberland, Maryland, normal procedure of the U. S. Marshal’s office in Baltimore was to telephone local authorities in the distant place on receipt of the warrant. Two deputies would have to be sent to apprehend the person, and since a round trip to Cumberland is approximately 300 miles, inquiry would first be made whether the person wanted was there, before the deputies would make the trip. Negative responses to such telephone inquiries were not routinely entered on the records of the Marshal’s office. Accordingly, although there is no way to verify the fact at this time, it is reasonable to believe that inquiry by the Marshal’s office was made concerning plaintiff of local authorities in Cumberland, Maryland shortly after receipt of the warrant in May of 1964. (Stipulation of Counsel that Deputy Marshal Gordon B. Mitchell would so testify.)

9. In addition, the records of the U. S. Marshal’s office in Baltimore contain the following entry:

2-28-66 Cheeked only address available — negative, notified local authorities, via Cumberland City Police Dept., Detective Bureau (Capt. Van). Stated they would keep on alert for subject. He is known to them. More info to follow via Mail from Capt. Van. (Scheldt). Exhibit 29.

10. A wanted flash notice for plaintiff, submitted by the District of Columbia Jail, was placed in the files of the Federal Bureau of Investigation on April 29, 1964. It is customary for the Bureau’s identification personnel to notify the department that submitted a wanted flash notice when prints were received from any other agency on that person. (Stipulation of Counsel that a representative of the Federal Bureau of Investigation would so testify.)

11. On June 13, 1967, the Federal Bureau of Investigation reaffirmed that plaintiff was still being sought as a violator by the District of Columbia local authorities. (Stipulation of Counsel that a representative of the Federal Bureau of Investigation would so testify.)

12. On April 11, 1968, by telephone the Federal Bureau of Investigation advised local authorities in the District of Columbia that plaintiff was reported as having been arrested by Redlands, California police as of April 3, 1968. (Stipulation of Counsel that a representative of the Federal Bureau of Investigation would so testify.) The United States Marshal, District of Columbia, advised the United States Marshal, Central District of California, to lodge a detainer against plaintiff, based on the Board’s violator warrant. On April 11, 1968, this request was confirmed by letter which transmitted the Board’s. warrant. Exhibit 10. The letter requested that, “when custody is assumed by your office [i. e„ the Marshal for the Central District of California], make the necessary arrangements to return [plaintiff] to the District of Columbia. . . . ” On May 7, 1968 the United States Marshal for the Central District of California took plaintiff into custody on the Board’s violator warrant. Exhibit 5.

13. On the date of plaintiff’s good-time release, April 14, 1964, he was taken by bus from Lorton to the District of Columbia. He hailed a taxicab, and went to the Greyhound Bus Station. There he boarded a bus to Southern Virginia and then on to Cincinnati and St. Louis and the West Coast. He did not return to this area, nor did he come back across the Mississippi River until he was arrested in 1968. Tr. 52-53, 15.

“Whether Baker’s efforts to obtain counsel in connection with the hearing before the Board of Parole were obstructed by the prison authorities”

14. During and after August 1968 plaintiff wrote several letters to Phillip Hirshkop, Esq. to discuss representation before the Board of Parole. Tr. 60.

15. Except in one instance, plaintiff had no problem with regard to communicating with Mr. Hirshkop, and he did in fact communicate with Mr. Hirsh-kop. Tr. 60. Nor did plaintiff have any problem with regard to communicating with present counsel, W. Carter Bowles, Jr., Esq. Tr. 60.

16. One letter to Mr. Hirshkop was returned “addressee unknown”. This letter consisted of four handwritten legal size pages. Plaintiff’s exhibit 1, Tr. 18.

17. Subsequent to the return of this letter, plaintiff received a notice that the letter was violative of the prison regulations, in effect in 1968, which, inter alia, prohibited correspondence on legal paper and correspondence in excess of two pages. Tr. 19, 59.

18. At all times, plaintiff had available for his inspection copies of all relevant prison rules and regulations; in fact, plaintiff’s duties as a “houseman” required him to distribute rules and regulations to other inmates. Tr. 57-58.

19. Plaintiff never discussed his alleged violation with any institutional personnel. Tr. 59-60.

20. In his twelve years residency at Lorton, plaintiff has never been reprimanded or disciplined for any matter so serious that a notation thereof was placed in his records. Tr. 70.

21. Plaintiff appeared before the Board of Parole on July 31, 1968, at which time his case was continued to permit plaintiff to seek to obtain counsel. Exhibit 11. The Parole Board provided plaintiff with a list of agencies which might be able to assist him. Exhibit 11, Tr. 17. Plaintiff again appeared before the Board on November 7, 1968, and the case was again continued, plaintiff not having obtained counsel.

“(a) Whether the Board of Parole considered the possibility of modifying the terms and conditions of Baker’s parole, as provided in 24 D.C.Code § 206 (1967), instead of the action it did take in terminating his parole and reinstituting the remainder of his original sentence, (b) If the Board did consider such alternatives, what the reasons were for its decision to reject them.”

22. At the revocation hearing on December 12, 1968, plaintiff made no contribution on the facts of the case, nor any request regarding the action the Board might take if it found violation. He referred to his case in Court. Reverend Ferrell stated:

. . . . If I understand what you mean when you say you are not prepared to make any responses, this then leaves the Board to determine on the basis of what information we have before us, records supplied to us whether or not you are in violation of your mandatory release and whether or not you should be declared a violator. Exhibit 14.

23. The “Summary Transcript” by the Board states:

The Board finds that the subject is in violation of his mandatory release, that the subject did intend so to be, and therefore finds the subject to be a violator of mandatory release and orders his mandatory release revoked. Exhibit 14.

24. The Board of Parole did consider other alternatives before it took its action revoking plaintiff’s mandatory release. The other alternatives considered were: (1) reinstating plaintiff to mandatory release and thus closing the case out as of April 30, 1968; (2) Revoking mandatory release and reparoling plaintiff immediately to an acceptable plan; (3) Revoking mandatory release and re-paroling plaintiff after a period of from three to six months through the Work Release Program; (4) Further continuing the case without decision to afford plaintiff another opportunity to secure counsel. Exhibit 28.

25. The Board did not exercise these options for the following reasons.

1. [Reinstatement to mandatory release] . Mr. Baker had been sentenced to a term of 4-13 years. Statutory provisions provide that upon (his mandatory) release he would remain under supervision for the balance of the unserved portion of the 13 years minus 180 days. Mr. Baker indicated prior to his mandatory release that he would not comply with that statute. To have exercised this option would have rewarded Mr. Baker for a willful violation of the law. Additionally, Mr. Baker was unwilling to advise the Board of any reason why it should exercise this option and refused to participate in the hearing intended to reach an equitable decision in his case. Mr. Baker had been advised at the time of his mandatory release of his responsibilities to be placed under supervision for the balance of the unexpired term. He had indicated at that time the Board was without authority to place him under supervision and that he would not report for nor respond to supervision.
2. [Revocation and immediate repa-róle], Mr. Baker had previously indicated his rejection of the Board’s authority and had absconded from supervision. There was nothing gleaned from Mr. Baker’s appearance before the Board to indicate that if it revoked and reparoled him he would respond affirmatively to supervision.
8. [Revocation and reparole through Work Release]. As stated in #2 above, there was nothing presented to the Board to indicate that Mr. Baker would not abscond from work release or supervision a second time.
4. [A further' continuance to afford plaintiff another opportunity to secure counsel.] Over a period of months, in spite of his having been advised that the Board was without authority or means to appoint counsel for him and in spite of the fact that the Board had advised Mr. Baker of agencies to which he might turn in an effort to secure counsel, Mr. Baker gave no indication that a further continuance of the case would result in his securing counsel. Also, upon advice of counsel (the Office of the U.S. Attorney), the Board believed that, in light of the period of time that had elapsed without Mr. Baker having obtained an attorney, an additional delay in holding a revocation hearing might be considered a violation of proper procedures. Exhibit 28.

Conclusions of Law

1. The four-year period that elapsed between the issuance and execution of the parole violator warrant was reasonable, particularly in light of the facts that (a) the D.C. Board of Parole, through the Superintendent of the District of Columbia Jail, communicated the fact of plaintiff’s absconder status to the appropriate authorities, including the Federal Bureau of Investigation; (b) the authorities had no address for plaintiff, and did attempt to locate plaintiff through the address of plaintiff’s sister; (c) plaintiff left this area on the day of his release from Lorton, went to the West Coast, and did not return until brought back after his arrest; and (d) the warrant was executed shortly after plaintiff's arrest in California on another charge. Cf. Molinaro v. New Jersey, 896 U.S. 365, 90 S.Ct. 498, 24 L. Ed.2d 586 (1970); Dawkins v. Mitchell, 141 U.S.App.D.C. 213, 437 F.2d 646 (1970).

2. The Court’s findings, see paragraphs 2-5, state the conditions of release which plaintiff was specifically informed of prior to his release in April 1964.

3. Plaintiff’s efforts to obtain counsel in connection with the hearing before the Board of Parole were not thwarted or obstructed in any way.

4. In terms, the Court of Appeals’ Order does not direct this Court to do other than make findings on its fourth issue, regarding the alternatives to revocation considered by the Board and its reasons for rejecting them. The Court has made such findings. However, it may be implicit in the Court of Appeals’ Order that this Court draw a conclusion from those findings. Accordingly, the Court concludes that there was a rational basis for the decision of the Parole Board to revoke plaintiff’s conditional release, rather than to adopt one of the other options.

Dated: October 20, 1971

HOWARD F. CORCORAN United States District Judge

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

ON SUGGESTION FOR REHEARING EN BANC

PER CURIAM.

On consideration of appellant’s suggestion for rehearing en banc and expedited consideration, it is

Ordered by the Court en banc that the aforesaid suggestion is granted and the above cases shall be reheard by the Court sitting en banc.

The Clerk of the District Court is directed to return the opinion and certified copy of this Court’s judgment as promptly as the business of his office permits.

OPINION ON REHEARING

Before FAHY, Senior Circuit Judge, and WRIGHT and ROBINSON, Circuit Judges.

FAHY, Senior Circuit Judge:'

The several questions raised by appellant in his long effort to have the courts set aside the revocation of his parole, were decided against him in Baker v. Sard and Sheehy, 158 U.S.App.D.C.-, 486 F.2d 415 (1972), but our decision was on the assumption that we were bound, on the question of appellant’s right to appointed counsel at the revocation hearing, by Hyser v. Reed, 115 U. S.App.D.C. 254, 318 F.2d 225 (en banc), cert, denied, sub nom. Jamison v. Chap-pell, 375 U.S. 957, 84 S.Ct. 447, 11 L. Ed.2d 316 (1963). We expressed the view that intervening decisions of the Supreme Court cast doubt upon the correctness of Hyser on the counsel question, whereupon, on application to that end, our court decided to reconsider the matter en banc. Pending reconsideration the Supreme Court granted certio-rari in Gagnon v. Scarpelli, 408 U.S. 921, 92 S.Ct. 2490, 33 L.Ed.2d 331 (1972), involving the right of an indigent to appointed counsel at a hearing on the revocation of probation. In view of this development the en banc order was vacated and the case was left with this division of the court to await the outcome of Scarpelli, our jurisdiction being maintained by withholding the mandate in Baker. Following the decision of the Supreme Court in Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L. Ed.2d 656 counsel for the appellee Board of Parole, and for appellant, in response to our request have submitted memoran-da to assist us in disposing of the case.

I.

In Scarpelli the Court held that the Sixth Amendment right to the assistance of counsel did not attach to a hearing on revocation of probation or parole, but that since a deprivation of liberty might result due process of law would require in some instances that the Board of Parole appoint counsel to represent an indigent at the hearing. The Court relied heavily upon its recent decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), also decided subsequent to Baker, in which several characteristics of parole revocation proceedings were considered, although the problem of an indigent’s right to appointed counsel was not then before the Court for decision. In Scar-pelli the Court held that no distinction was to be drawn with respect to the counsel issue between revocation of probation and parole. The right of an indigent to appointed counsel at the hearing, the Court held, is not absolute, but is to be decided in terms of due process of law on a case-by-case basis. The decision in the first instance is to be by the body to conduct the hearing, aided by certain non-exclusive guidelines which the Court set forth.

Baker was conditionally released from Lorton Reformatory April 14, 1964. Ten days later a warrant issued declaring him in violation of his conditional release. He was taken in custody on this warrant May 7, 1968, and six months later, December 12, 1968, the ap-pellee Board held a revocation hearing. His request for appointed counsel was denied by the Board, which revoked his parole. During the ensuing litigation challenging this action Baker completed service of the unexpired term of his original sentence.

II.

Neither the Board nor Baker suggests that it is feasible to require the Board to determine now under the standards of Scarpelli whether or not Baker was entitled to counsel at the hearing of December 12, 1968. In this connection the Board points out that the record, including the findings of the District Court left undisturbed by this court in Baker, supra, should lead the court now to hold that Baker was not entitled to appointed counsel and, since in any event he is no longer in custody, no practical relief is available to him. Baker contends that we should hold on the basis of the same record that under Scarpelli he was entitled to counsel. He further contends that, having been denied due process of law by being deprived of his liberty without such required assistance, the revocation of his parole should be set aside. This relief he emphasizes is feasible, for he is presently deprived, due to the revocation, of his voting rights in this jurisdiction of his residence. 1 D. C. Code § 1102(7)(A) (Supp. V, 1972).

III.

There is no clear solution to a case in this posture. A certain weakness in the Board’s position, however, indirectly strengthens that of Baker. The weakness is that it cannot be said with confidence that if Baker had been represented by counsel,at the hearing the Board’s finding that he had violated his parole would have been made, or, if made, that the Board would not have been persuaded to restore him again to the liberty of parole, pursuant to the broad discretionary powers available to the Board. 24 D. C.Code § 206 (1967). Neither of these possibilities is obviated by the subsequent proceedings in the District Court considered in our Baker decision, for we there have held open until now the counsel question, including what effect our decision in that regard might have upon all that has gone before in the absence of counsel. In its careful analysis of the vital part of the parole system in the administration of justice, in the interests of both the individual directly affected and the community where the Board seeks a place for the offender, free of his past anti-social conduct, the Supreme Court encourages Board action other than revocation. The Court states,

“Revocation . . .is, if anything, commonly treated as a failure of supervision. While presumably it would be inappropriate for a field agent never to revoke, the whole thrust of the probation-parole movement is to keep men in the community, working with adjustment problems there, and using revocation only as a last resort when treatment has failed or is about to fail.”

Gagnon v. Scarpelli, supra, 411 U.S. at 785, 93 S.Ct. at 1761.

Baker’s situation falls well within this approach. The violation of parole charged to him was not conduct affecting another person or property. It was that when paroled in April, 1964, he left this jurisdiction without reporting to the office of the Board for instructions and without Board approval. He remained at liberty four years, until April, 1968, when he was arrested in California, He had a job there, and had acquired no criminal record in the intervening years. Insofar as appears, he had made community adjustment. Moreover, his parole in April, 1964, was mandatory because during his prison service for nine years under his maximum 13-year sentence he had merited “good time” deductions from the term of his sentence. With counsel at the revocation hearing Baker might well have escaped further loss of liberty. He might well have been restored to parole on such conditions as the Board might have formulated with the assistance of his counsel, or required to serve a part rather than all of the remainder of the maximum term for which he was sentenced. The long, faithful and admirable devotion of his present counsel, appointed by the court, gives strong support to the belief that counsel could have been materially helpful to the Board.

IV.

While under Scarpelli it cannot be held with certainty that Baker would have been held by the Board to have been entitled to appointed counsel at the hearing, neither can it be held otherwise. Having borne the consequences of revocation which might have been avoided if represented by counsel it would seem only just that doubts should be resolved in his favor since the passage of time and intervening events preclude a reconstruction of the past with certainty. So resolving, the practical relief of setting aside the revocation, accompanied by its finding of parole violation, emerges. We find support for this position in Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (1961). We there held that the revocation of Glenn’s parole had been illegally accomplished because he neither had nor had been offered counsel at the hearing which resulted in revocation. The court said:

The error . . . cannot be corrected, because the illegal imprisonment that resulted from it [from the revocation of parole] cannot be undone. If counsel had been present at the . . . hearing as the law requires, there might have been no revocation of parole and no subsequent imprisonment.
Though it cannot undo the wrong, we think we should order appellant released.

110 U.S.App.D.C. at 86, 289 F.2d at 463. The remedy we adopt is action implicitly within the greater remedy of release ordered in Glenn, and is no less appropriate.

We also rely upon 28 U.S.C. § 2106 (1970), in the unusual situation before us. While the general grant of authority in section 2106 is cautiously to be used, perhaps never when a clearly defined legal principle calls for a particular course of action, no such definitive principle points to a different solution of Baker’s case than that we adopt. Moreover, this course avoids the constitutional question whether denial of the right to appointed counsel for Baker at the revocation hearing deprived him of the equal protection of the laws by reason of the provision of 24 D.C.Code § 206 (1967). Under that provision a prisoner who has been retaken upon a warrant issued by the Board of Parole shall be given an opportunity to appear before the Board, a member thereof or an executive designated by the Board. At the hearing he may be represented by counsel. There is a serious question whether by reason of the conference of this right of representation an indigent can be denied a like right consistently with the equal protection of the laws and, consequently, with due process of law.

An appropriate order will be entered.

ON PETITION FOR REHEARING

PER CURIAM.

This matter is before the Court on appellant’s petition for rehearing. Counsel for the parties have submitted memoranda. On consideration of the foregoing, it is

Ordered by the Court that the judgment of this Court entered February 16, 1972 be, and the same hereby is, vacated, and it is

Further ordered by the Court that the judgment of the District Court appealed from be, and the same hereby is, vacated and this case is remanded to the District Court so that consistently with the opinion of this Court filed herein this date the finding of violation by appellant of his parole, and the revocation of his parole, may be set aside and the records with respect thereto made so to indicate.

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

      . The order remanding and the District Court’s findings' of fact and conclusions of law are Appendices A and B of this opinion.

      . Baker was again released on mandatory-release on or about November 4, 1971, to remain under supervision until May 22, 1972. Since the fact of revocation of his release remains a matter of public record and since he is still subject to supervision, this case is not moot. See Hewett v. State of North Carolina, 4 Cir., 415 F,2d 1316 (1969).

      . 18 U.S.C. § 4164 reads in pertinent part:
      “A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.”

      . Although we agree that the findings of the District Court here are not clearly erroneous, without doubt a lawyer would have been helpful to appellant in his attempt to show that he was prejudiced by the 85-day delay between his arrest on the warrant and his revocation hearing. See Shelton v. United States Board of Parole, 128 U.S. App.D.C. 311, 318, 388 F.2d 567, 574 (1967). A lawyer also might well have persuaded the Board that an alternative less severe than revocation of parole was indicated in appellant’s case. In Mempa v. Rhay, 389 U.S. 128, 135, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967), the Supreme Court required appointment of counsel for an indigent facing probation revocation at the state level, stating: “[T]he necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.” We believe the same observation can be made with equal application to federal parole revocation proceedings.

      . Appellant claims his efforts to obtain counsel for himself were obstructed by the prison authorities. Although the findings of the District Court on this issue are not clearly erroneous, it appears that appellant was disciplined for writing a letter to a lawyer seeking his assistance at the revocation hearing. Apparently the fact that appellant’s letter was on legal size paper and in excess of two pages violated a prison regulation. Apart from facility in censoring, there appears to be no rational basis for such a regulation. And censoring a prisoner’s communications with his counsel obviously raises the most serious kind of constitutional problems.

      . References to exhibits, unless otherwise described, are to defendants’ exhibits.

      . Item 2 of the Court of Appeals’ Order of January 23, 1970. Item 2 is dealt with first so that these findings will be in approximate chronological order.

      . The Board of Parole prior to its final refusal to appoint counsel had provided Baker with a list of agencies that might have assisted him in obtaining counsel. Baker was unable, however, to obtain counsel to represent him, notwithstanding the more than four month continuance the Board allowed for this purpose.

      . That this did not render the case moot is clear from Gagnon v. Scarpelli, supra, 411 U.S. at 780, 93 S.Ct. 1756.

      . We note that in Scarpelli the Court, relying on Morrissey, as well as elaborating upon the place parole occupies in our system of justice, requires both a preliminary and a final hearing in connection with the revocation of either probation or parole. 411 U.S. at 781-782, 93 S.Ct. 1756. The preliminary hearing is concerned with whether or not there is any need to go forward with possible revocation after an alleged violation. No preliminary hearing at all was afforded Baker, but we have no need to inquire into the effect of its absence, for we dispose of his case on the basis of the absence of counsel at the final hearing in the revocation proceeding.

      . Remington, Newman, Kimball, Melli & Goldstein, [Criminal Justice Administration, Materials and Cases] . . . at 910 [(1969)].

      . The holding in Q-lenn on the right to counsel must be considered in connection with the subsequent Hyser decision, where it is pointed out:
      The decisions of this court which hold that the parolee must be advised of his right to have retained counsel present are based on judicial construction of the words ‘opportunity to appear before the Board’ in 18 U.S.C. § 4207. Glenn v. Reed, 110 U.S. App.D.C. 85, 289 F.2d 462 (1961). . . .
      They do not stand for the proposition that the presence of counsel is mandatory whenever a parolee appears before the Board or that parole revocation proceedings were to become adversary proceedings.
      We hold due process does not require that indigent parolees be provided with appointed counsel when they appear before the Parole Board in revocation proceedings.

        115 U.S.App.D.C. at 267, 318 F.2d at 238. That due process would require counsel in some parole revocation hearings, though not necessarily in all, was the view of some of the judges of our court in the en banc Hyser decision. Concurring and dissenting opinion of Fahy, J, concurred in by Wright, J, 115 U.S.App.D.C. at 289, 318 F.2d at 260. And see the dissenting views of Bazelon, C. J, and Edgerton, J that an indigent is entitled to appointed counsel, else a serious problem of due process arises in light of our decisions permitting representation by retained counsel at a revocation hearing. 115 U.S.App.D.C. at 284, 318 F.2d at 255.

      . Section 2106 provides:

      . Since Baker’s claim of right to have had counsel appointed for him has been kept alive we have authority to decide as we do in the interest of justice, not being held within the confines of the' possible non-retroactivity of a new constitutional decision.