author: McGOWAN, Circuit Judge: LEVENTHAL, Circuit Judge, with whom Chief Judge BAZELON and Circuit Judge SPOTTSWOOD W. ROBINSON, III,

text:
    William Rodger STARNES, Appellant, v. Honorable Matthew F. McGUIRE Arthur Everett SMALL, Jr., Appellant, v. Honorable George L. HART, Jr.
    Nos. 73-1034, 73-1827.
    United States Court of Appeals, District of Columbia Circuit.
    Argued En Banc Nov. 8, 1973.
    Decided Nov. 8, 1974.

      Alvin J. Bronstein, Washington, D. C. with whom Philip J. Hirschkop, Alexandria, Va., was on the brief for appellant in No. 73-1034.
    Gladys Kessler, Washington, D. C. (appointed by this court), for appellant in No. 73-1827.
    Nathan Dodell, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, Arnold T. Rikens, and Eric B. Marcy, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.
   McGOWAN, Circuit Judge:

These cases, heard together en banc, involve in each instance a petition by a federal prisoner for a writ of mandamus compelling vacation of a District Court order transferring the underlying case to the district of the prisoner’s place of confinement. At issue is the propriety of the exercise of authority granted in 28 U.S.C. § 1404(a):

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it may have been brought.

Our en banc consideration was prompted by a seeming need to define with greater precision, if possible, the scope of our decision in Young v. United States Bureau of Prisons, et al., 125 U.S.App.D.C. 105, 367 F.2d 331 (1966). The District Court frequently has occasion to apply Young, and it is a matter of obvious importance, Rule 35(a), FRAP, that both we and the District Court be correct — and, as nearly as possible, at one— in our interpretations of the purposes and reach of Section 1404(a), and in our concepts of the procedures appropriate for its implementation.

For the reasons stated hereinafter, we find that we are without jurisdiction to consider the petition in No. 73-1034; and we deny the petition on its merits in No. 73-1827.

I

Young was one of two cases before the court on motions for leave to prosecute appeals without prepayment of costs filed by two inmates of the Federal Penitentiary in Lewisburg, Pennsylvania, who had brought separate declaratory judgment actions against federal officials in the District Court. One of the inmates, Young, had sued the Director of the Bureau of Prisons and the Chairman of the Board of Parole, asking that the time he spent on parole before being recommitted as a parole violator be credited against his sentence. The other inmate, Rossello, had sued the Board of Parole, complaining of delay in the issuance and execution of a parole violator warrant. In the case of Young, the District Court granted a motion to dismiss the complaint on its merits. In the case of Rossello, the District Court granted a motion under Section 1404(a) to transfer the case to the Middle District of Pennsylvania.

On appeal we said that Rossello squarely posed the issue whether the District Court was obligated “to entertain declaratory judgment actions brought by inmates not confined in the District of Columbia, not sentenced in the District of Columbia, and seeking resolution of issues in no way related to this jurisdiction . . . ” We held that, in light of the 1962 amendment to the venue statute, 28 U.S.C. § 1391(e), our decisions prior to that amendment did not preclude transfer to the district of confinement under Section 1404(a) and that, “absent extraordinary circumstances which we need not today delineate, such actions should ordinarily be transferred as a matter of course.”

We noted several reasons why we thought this course to be “in the interest of justice.” The first was that the transfer is responsive to the Congressional purpose underlying the 1962 amendment. Second, we considered such transfer to be desirable as a practical matter “since, if an evidentiary hearing is necessary to resolve disputed issues of material fact, the inmate will be readily available.” Our third stated reason was that transfer will discourage duplicative litigation and will relieve the D. C. courts of the unnecessarily onerous task of deciding cases brought “by a prisoner incarcerated far away from Washington, D. C., and based on events alleged to have taken place in distant parts of the country” (citing and quoting from Phillips v. United States, 122 U.S.App.D.C. 235, 352 F.2d 711, 716 (1965)). We concluded by saying (at p. 333 of 367 F.2d):

“Hereafter, if such cases are instituted in this jurisdiction, the pleadings are to be preliminarily examined to determine whether any compelling reason requires the matter to be litigated here. If no such reason appears, transfer of the case to the district of confinement would be in order. [Note 7, quoted above]. While there may be exceptional circumstances which would warrant retention of jurisdiction, it seems to us that such cases would be rare.”

We disposed of Rossello’s motion to proceed in forma pauperis on the ground that his claim that the District Court abused its discretion in transferring the case to Pennsylvania was frivolous. As for Young, we said only that “we discover no extraordinary circumstances that would require his action to be litigated here,” and we therefore granted his appeal in forma pauperis, vacated the District Court’s judgment on the merits, and remanded with instructions that the case be transferred to Pennsylvania.

II

Our disposition of one of the two petitions for mandamus presently pending before us en banc does not involve consideration of the merits of the transfer under Section 1404(a). On September 2, 1972, Starnes, a federal prisoner at Leavenworth, filed a pro se complaint against the Board of Parole in the District Court for the District of Columbia challenging the constitutionality of 18 U.S.C. § 4205, and moved to convene a three-judge court. On October 16, the Board filed (and mailed to the plaintiff) a motion to transfer the action to the District Court for Kansas — the court in the place of the plaintiff’s confinement. Plaintiff filed his pro se opposition to the motion to transfer on October 27, and three days later Judge McGuire entered an order directing transfer. On November 15, the Clerk of the District Court transferred the original papers to the District Court for Kansas. The District Court in Kansas dismissed the case, on motion of the Board, on January 4, 1973. Five days later a motions division of this court ordered filed plaintiff’s petition for a writ of mandamus compelling vacation of the transfer order.

A panel of this court, although characterizing the transfer as error, subsequently concluded that this court could provide no relief to Starnes for the reason that his case had been decided on the merits by the District Court in Kansas, and that the proper forum for review of that action was by appeal to the Tenth Circuit. Examining this state of affairs en banc and with the panel opinion vacated, we find that we are without jurisdiction to consider the subject matter of the petition for mandamus.

Although it is well established that a transferee court cannot directly review the transfer order itself, Illinois Tool Works v. Sweetheart Plastics, 436 F.2d 1180 (7th Cir.), cert. dismissed, 403 U.S. 942, 91 S.Ct. 2270, 29 L.Ed.2d 722 (1971); Purex Corp. v. St. Louis Nat’l Stockyards, 374 F.2d 999 (7th Cir.), cert. denied, 389 U.S. 824, 88 S.Ct. 59, 19 L.Ed.2d 77 (1967); Preston Corp. v. Raese, 335 F.2d 827 (4th Cir. 1964); In re Southwestern Mobile Homes, Inc., 317 F.2d 65 (5th Cir. 1963), it is equally clear that physical transfer of the original papers in a case to a permissible transferee forum deprives the transferor circuit of jurisdiction to review the transfer. Farrell v. Wyatt, 408 F.2d 662, 664 (2d Cir.), motion for leave to file petition for writ of mandamus denied, 396 U.S. 810, 90 S.Ct. 145, 24 L.Ed.2d 122 (1969); In re Southwestern Mobile Homes, supra; Drabik v. Murphy, 246 F.2d 408 (2d Cir. 1957); cf. A. C. Nielsen Co. v. Hoffman, 270 F.2d 693 (7th Cir. 1959).

Occasionally informal procedures may be employed to return a case to the transferor circuit for review of the order, see Fine v. McGuire, 139 U.S.App. D.C. 341, 433 F.2d 499, 500 n. 1 (1970); Preston Corp. v. Raese, 335 F.2d 827, 828 (4th Cir. 1964). Nevertheless, the appropriate course of action when physical transfer has already taken place at the time the petition for mandamus is filed is a new proceeding seeking retransfer in the transferee court, which may be reviewed by the transferee circuit. See Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254; DTppolito v. American Oil Co., 401 F.2d 764 (2d Cir. 1968).

This state of the law makes it essential that procedures be adopted and observed that will provide plaintiffs a fair opportunity to seek review in the transferor circuit prior to the physical transfer of the record. It is also true, however, that this court has lost jurisdiction of Starnes’ case by its physical transfer to a forum to which transfer was possible under 28 U.S.C. §§ 1404(a) and 1391(e).

Ill

On May 24, 1973, petitioner Small, an inmate at Leavenworth under a sentence imposed by the District Court in Colorado, filed in the District Court here a petition pro se for mandamus against the United States Board of Parole. The petition alleged that the reasons given for the Board’s revocation of Small’s parole and refusal to reparole him were constitutionally inadequate and arbitrary, and that the Board had failed to consider relevant evidence. The primary relief sought by the petition was an order directing that Small be reparoled.

On May 29, 1973, Judge Hart sua sponte ordered the case transferred to the District Court for the District of Kansas — the place of petitioner’s confinement. On June 11, plaintiff filed a motion for stay of the order (mailed June 3), which motion was denied July 13. It appears that sometime between July 13 and July 24, Judge Hart ordered that physical transfer of the case be stayed. On July 24, plaintiff moved for reconsideration of the July 13 order; this motion was denied on July 25.

Meanwhile, this court had received, on June 19, a motion to file in forma pauperis a petition for writ of mandamus compelling vacation of the transfer order. This motion was filed on June 26. On July 27, with the physical transfer still delayed pursuant to the direction of Judge Hart, this court granted leave to file a petition for writ of mandamus in forma pauperis, ordered the petition docketed, and entered an order staying the District Court’s transfer order. The petition alleges that there is no reason for transfer, that there are affirmative reasons not to transfer, and that the transfer order was an abuse of discretion.

Petitioner correctly notes that our decision in Young does not eliminate the need for an examination of the facts of each case prior to any decision on whether transfer should be ordered under 28 U.S.C. § 1404(a). See Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960); Fine v. McGuire, 139 U.S.App.D.C. 341, 433 F.2d 499 (1970); Nestor v. Hershey, 138 U.S.App.D.C. 73, 425 F.2d 504 (1969). When the federal officers named as defendants are to be found within the District of Columbia for purposes of personal jurisdiction, venue is properly laid here under Section 1391(e). Transfer elsewhere under Section 1404(a) must, therefore, be justified by particular circumstances that render the transferor forum inappropriate by reference to the considerations specified in that statute.

Absent such circumstances, transfer in derogation of properly laid venue is unwarranted. Our statement in Young that “absent extraordinary circumstances such actions should ordinarily be transferred as a matter of course,” was merely a recognition of the fact that many, if indeed not most, petitions filed by prisoners not confined in the District of Columbia and not sentenced here originally, will tend to involve factors that make transfer to the place of incarceration appropriate. One of these factors, specifically mentioned in Young, is the availability of witnesses, including the availability of the prisoner himself when his testimony, as is often the case, is essential.

Small now characterizes on appeal his original petition in the District Court for a writ of mandamus against the Board of Parole as challenging only an alleged national policy of not providing any reasons whatsoever for revocation of parole: “Thus, he is attacking a general. policy made and implemented by the Parole Board which is located here in Washington. Litigation of his case will involve no evidentiary issues concerning his own incarceration, release to the Colorado authorities, return to Federal prison, or rehabilitation while in prison.” (Petitioner’s brief at 11-12). The petition filed with Judge Hart, however, is at odds with this characterization, and is phrased so as to suggest that the full development of the facts requisite to the giving of the relief explicitly sought would, if indeed that relief is available at all, certainly require witnesses who are more easily available in Kansas.

The record indicates that Small, while on federal parole from Leavenworth to serve a sentence under a Colorado conviction for a confidence game, was convicted of two state offenses in Colorado while at liberty on a state appeal bond. One was driving while intoxicated, for which he appears to have served some time in jail; and the other was aggravated robbery, for which he served two years and eight months in state prison. In his petition, Small recited that he had been given a full parole revocation hearing at Leavenworth, Kansas. In his petition, he described that hearing as follows:

At the parole revocation hearing petitioner applied for immediate reparóle. In support of such application, he requested consideration of (1) the length of incarceration under the intervening sentences, a period of 13 months in jail, and 2 years 8 months in state prison; (2) the punitive consequences of the detainer upon his status, opportunities for rehabilitation, mental outlook,'and ability to prepare for a return to society; (3) his record as a prisoner during the intervening incarceration; and (4) his parole plans. Documentary evidence supporting this application for reparole included [listing evidence submitted to the parole revocation-reparole hearing].

He further recited that he was given a statement of reasons which consisted of a reference to his two Colorado convictions as the grounds for the parole revocation.

Small’s contentions and plea are summed up in two places in his petition. In a section entitled “Petitioner’s Contentions,” Small stated:

“In revoking petitioner’s parole and denying his immediate reparole, respondent relied solely upon the fact of intervening offenses, failed to consider and evaluate petitioner’s evidence, and neglected to make a determination as to whether petitioner was a good parole risk. The reasons given by respondent violate petitioner’s rights to due process as guaranteed by the 5th, 6th and 14th Amendments to the United States Constitution, as applicable to imprisoned felons. The reasons given manifest an arbitrary and capricious administrative standard, criterion, and policy; indicate a failure to consider all relevant evidence; and establish a fundamental unfairness, ignoring of the concept of rehabilitation, and disregarding of the need of society for protection and whether further incarceration would serve any useful purpose.” (Emphasis added).

In the bulk of his petition, Small attempted to explain why a statement of reasons was constitutionally mandated and why he, Small, should not have had his parole revoked. In his prayer for relief, Small said:

“Wherefore, petitioner prays for a writ of mandamus directing the respondent to show cause why its written reasons for revocation and denial of reparole given to petitioner should not be declared unconstitutional as a matter of law, and for an order to reparole petitioner forthwith.” (Emphasis added).

The petition as presented to the district judge could, when construed most favorably to Small, be perhaps regarded as raising two questions: first, that the Board followed an unconstitutional practice of not considering or articulating certain factors in making parole decisions, for which a declaratory judgment was sought; and second, that the parole revocation and denial of reparole in Small’s case was arbitrary and capricious in the light of the evidence of rehabilitation adduced. Although the former is perhaps no more easily litigated in Kansas than here, the second question appears to be the principal preoccupation of the petition, leading, as it is claimed to do, to the remedy of immediate reparóle by judicial order. That second question essentially was whether the Board of Parole, in the face of the evidence offered by Small (consisting largely of letters from Colorado correctional officials and attorneys) of his satisfactory record while incarcerated in Colorado and the rehabilitative implications of that record, acted arbitrarily in revoking his parole and refusing to grant his request for immediate reparole.

The events relied on to support the allegation that the revocation and refusal to reparole was arbitrary and capricious occurred at the Colorado State Penitentiary. Small is a principal witness to these events and he, of course, is in Kansas. Further, should witnesses or files from the Colorado institution be necessary, as they presumably would be as a basis for a grant of the precise relief sought, the District of Kansas provides a patently more convenient forum. In these aspects, Small’s case is very similar to the facts in Rossello, supra, which also challenged a parole revocation on grounds that certain facts known to the prisoner made the revocation inappropriate. Thus the case as it was presented to the District Judge involved factual inquiries more easily to be pursued in Kansas than in the District of Columbia.

Petitioner notes that the main purpose of section 1404(a) is to afford defendants protection where maintenance of the action in the plaintiff’s choice of forum will make litigation oppressively expensive, inconvenient, difficult or harassing to defend. See Van Dusen v. Barrack, supra; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Petitioner also notes that the Board has its offices in the District of Columbia, that most hearing examiners are members of the Board and are based in Washington, and that the main Board files are here. From this he argues that the Board cannot be inconvenienced by suit in this district; and that, because plaintiff’s choice of forum is normally to be preferred, Blake v. Capitol Greyhound Lines, 95 U.S.App.D.C. 334, 222 F.2d 25, 27 (1955); Wiren v. Laws, 90 U.S.App.D.C. 104, 194 F.2d 873, 875 (1951), cert. denied, 346 U.S. 938, 74 S.Ct. 378, 98 L.Ed. 426 (1954), transfer is not proper if the plaintiff is the only person inconvenienced by the forum.

The essential element in this argument is the concept that the difficulties of transferring a prisoner to this district for hearing are an inconvenience only to the prisoner, and that he should be able to force the court to ignore such inconveniences. We believe, however, that the greater ease with which federal officials can travel to the prison to give evidence, as opposed to the difficulties of transporting the prisoner, is an appropriate factor to be considered, and one that the prisoner cannot eliminate by stating his preference for this forum.

Petitioner also suggests that, to the extent his case can be taken to be concerned with national policy, the policy is that of an agency headquartered in Washington, D. C., and that therefore venue is most appropriate here. This argument is essentially based on the concept that somehow issues involving national policy are peculiarly appropriate for resolution by this forum. It relies on cases in which we allowed venue in this forum for actions against heads of national agencies where certain national policy decisions were clearly — and solely —involved. An examination of those cases, however, reveals that, far from creating a blanket rule that “national policy” cases should be brought here, the decisions required the case-by-case determination mandated by Van Dusen v. Barrack, supra, and merely noted as one factor to be considered that proof centering on national policy decisions may be peculiarly available here.

In Menard v. Mitchell, 139 U.S.App. D.C. 113, 115 n. 3, 430 F.2d 486, 488 n. 3 (1970), a case challenging certain FBI policies, we said:

Whatever might be the situation in other circumstances, the present record does not indicate that transfer would be appropriate. It appears that the only witnesses present when appellant was taken into custody were appellant and the two arresting officers. Although the officers are presumably, still in California, appellant, who has the burden of proof, presently resides in Silver Spring, Maryland. Furthermore, also relevant at trial will be information regarding the practices of the FBI in disseminating its criminal identification records, . . . and witnesses regarding these matters would presumably be more accessible in the District of Columbia than in California. Appellant’s choice of forum is entitled to some weight. And finally, it might be well that appellant, who appeared pro se in the District Court, would be unable to prosecute, his suit were it transferred to the West Coast.

This discussion of the reasons for and against transfer indicates the range of considerations. that are necessary to a proper case-by-case determination.

In Nestor v. Hershey, 138 U.S.App.D.C. 73, 425 F.2d 504, 522 (1969), we held that transfer was inappropriate for a suit involving a denial of draft deferment when the denial was based on a Regulation and a Memorandum issued by the director of the Selective Service. We noted, however, that “[w]here the role of the Director is not so immediate and direct as it is in the instant case, our District Court may properly determine that the controversy has no strong ties to this jurisdiction and, . . . transfer the action to a more appropriate forum.” [Citing Young, supra, and noting with approval the transfer of another draft case, Thomas v. Hershey, (D.D.C. July 15, 1969).]

In Fine v. McGuire, 139 U.S.App.D.C. 341, 433 F.2d 499 (1970), a draft case apparently similar in all respects to Nestor, we held that sua sponte transfer without notice was an abuse of discretion:

“This is prima facie, at least, a reasonable choice by plaintiff and it cannot be overturned by the District Judge without giving plaintiff an opportunity to present facts that bear on convenience of parties and witnesses.” Id. at 501-02.

We noted that

“Nestor keeps open the possibility of transfer of an action where ‘the role of the Director is not so immediate and direct as it is in the instant case’ and ‘the controversy has no strong ties to this jurisdiction.’ However, this would depend on the issue involved in the individual case and would require an affirmative showing by the Selective Service System undercutting the presumed convenience of testing national headquarters’ instructions at the seat of government.”

Id. at 502 n. 3.

These opinions make clear that the existence of a national policy issue that may involve testimony by the policymakers is a factor to be considered by the district judge in determining whether transfer is appropriate under Section 1404(a). Where, however, there are present in the case other circumstances that make this an inconvenient forum, the advantages of litigating a national policy issue in the forum where that policy has been developed must be weighed against the factors suggesting transfer and, if the factors favoring transfer outweigh the value of litigating the policy issue here and the preference given the plaintiff’s choice of forum, then the case should be transferred.

In the instant case, even assuming that a true national policy issue was tendered in the District Court, Small primarily raised and relied upon an issue that related to his particular circumstances and that certainly, as a basis for the specific relief sought, required evidence from himself and other persons better available in Kansas. Thus, in the instant case we find that transfer was appropriate in light of all the circumstances presented to the District Judge in the motion for stay of transfer and to this court in the briefs on appeal, and that therefore no abuse of discretion occurred such as would require correction by mandamus.

Issuance of mandamus might be supported on the grounds that the district judge failed to give the petitioner an opportunity to present his arguments against transfer prior to the entry of the transfer order (the proper procedures will be discussed infra); we believe, however, that the prisoner’s views on transfer were adequately presented in his motions to the District Judge to stay transfer and to reconsider the denial of a stay.

Mandamus is an extraordinary remedy, and is to be used only where essential in the interest of justice. Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Platt v. Minnesota Mining Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Bankers Life and Cas. Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953); Fine v. McGuire, supra; Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969); A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439 (2d Cir. 1966) and cases cited therein. We find that in this case it is not warranted.

IV

Although it is perhaps impossible to develop any fixed general rules on when cases should be transferred, the cases before us today suggest that there may be some utility in an identification by this court of factors that generally will be relevant to a decision whether to transfer a particular prisoner petition under 28 U.S.C. § 1404(a), and of the procedures to be followed both in making such a determination in the first instance and in assuring an opportunity for appellate review.

A. Factors Affecting Transfer

1. Difficulty of communication with counsel.

As this court recently stated in United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1203 (1973), “Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable. Counsel should discuss fully potential strategies and tactical choices with his client.” See also Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968); Cf. Hawk v. Olsen, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945); American Bar Association, Standards for the Defense Function 3.1, 3.2, 5.1, 8.5 (Approved Draft 1971).

Most prisoner petitions for mandamus or declaratory judgment are filed pro se, with counsel appointed only after the district judge has determined that the claim made is not frivolous. A nonfrivolous claim, however, may be far from a claim that is fully presented or presented in its best light. Proper presentation will often require consultation between the appointed attorney and the prisoner to develop fully all of the relevant facts and arguments.

When a case is litigated in the District of Columbia on behalf of a prisoner in a distant prison, the attorney is necessarily limited to the time-consuming and inefficient communication provided by letters. Although such long-distance consultation may achieve a reasonable development of what the prisoner has defined as his case, it is likely that both important nuances and possible additional issues will be overlooked due to the problems of communication. There are also likely to be aggravated problems of meeting time limitations on filings. The prisoner’s situation is thus unlike other civil cases filed in a distant forum, in which the plaintiff is likely to have consulted an attorney prior to filing, has knowingly undertaken the difficulties of communication, and is free to travel to the attorney if the need arises. See Fine v. McGuire, 139 U.S.App.D.C. 341, 433 F.2d 499 (1970); Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970); Nestor v. Hershey, 138 U.S.App.D.C. 73, 425 F.2d 504 (1969). Transfer of the case to a forum where counsel is close at hand for consultation with the prisoner, will therefore generally be appropriate.

2. Difficulty of Transferring the Prisoner.

Many prisoner petitions will potentially involve testimony by the prisoner as to events in which he participated. The burdens and dangers involved in transporting a prisoner across long distances are, in our opinion, a significant inconvenience to the Bureau of Prisons and will normally justify transfer. There will, of course, be some cases in which it is clear that testimony by the prisoner will not be required, particularly those cases that challenge only a general policy, and, unlike Small, do not make reference to the particular situation of the prisoner. In such cases difficulty of transportation will be irrelevant.

3. Availability of Witnesses and Files.

In some cases the claim will require testimony or files most easily obtained at or near the place of incarceration. In such cases, the district in which the institution is located will ordinarily be the more convenient forum. Similarly, where the incident in dispute is an act leading to revocation of parole, a forum near to the place at which those acts occurred will be better than the District of Columbia. See Eisel v. Secretary of the Army, 155 U.S.App.D.C. 366, 477 F.2d 1251 (1971).

4. Complaints Under 28 U.S.C. §§ 2241 or 2255.

It appears that many pro se petitions for writs of mandamus or for declaratory judgment in fact sound in habeas corpus and should properly be brought under 28 U.S.C. §§ 2255 or 2241. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In both instances, where the prisoner was not sentenced and is not confined in the District of Columbia, venue is not likely to be proper here. See 28 U.S.C. § 2255; Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972); Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971); Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); Reese v. United States Board of Parole, 162 U.S.App.D.C. 156, 498 F.2d 698 (1974); Eisel v. Secretary of the Army, supra; United States v. Wilson, 153 U.S.App.D.C. 104, 471 F.2d 1072, 1080 (1972); cert. denied, 410 U.S. 957, 93 S.Ct. 1431, 35 L.Ed.2d 691 (1973).

The Supreme Court has recently held that where the prisoner’s custodian is to be found in a different district than that of the prisoner’s confinement, a habeas action should be brought in the district of the custodian’s residence. Bra-den v. 30th Judicial Circuit Court, supra. Nevertheless, where the immediate custodian is found in the same district as that of the prisoner’s confinement or residence, that district, rather than the residence of some distant, ultimate custodian, is normally to be preferred. See Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972); Eisel v. Secretary of the Army, supra.

In Braden v. 30th Judicial Circuit Court, supra, the Court said:

In view of these developments since Ahrens v. Clark, we can no longer view that decision as establishing an inflexible jurisdictional rule, dictating the choice of an inconvenient forum even in a class of cases which could not have been foreseen at the time of our decision. Of course, in many instances the district in which petitioners are held will be the most convenient forum for the litigation of their claims. On the facts of Ahrens itself, for example, petitioners could have challenged their detention by bringing an action in the Eastern District of New York against the federal officials who confined them in that district. No reason is apparent why the District of Columbia would have been a more convenient forum, or why the Government should have undertaken the burden of transporting 120 detainees to a hearing in the District of Columbia. Under these circumstances, traditional principles of venue would mandate the bringing of the action in the Eastern District of New York, rather than the District of Columbia. Ahrens v. Clark stands for no broader proposition.

410 U.S. at 499-500, 93 S.Ct. at 1132.

In Schlanger v. Seamans, supra, the Court noted:

Although by 28 U.S.C. § 1391(e) (1964 ed. Supp. V), Congress has provided for nationwide service of process in a “civil action in which each defendant is an officer or employee of the United States” the legislative history of that section is barren of any indication that Congress extended habeas corpus jurisdiction. That section was enacted to broaden the venue of civil actions which could previously have been brought only in the District of Columbia. See H.R.Rep.No.536, 87th Cong., 1st Sess., 1; S.R.Rep.No.1992, 87th Cong., 2d Sess., 2. Though habeas corpus is technically “civil,” it is not automatically subject to all the rules governing ordinary civil actions. See Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281.

401 U.S. at 490, n. 4, 91 S.Ct. at 997.

Thus, although it is possible to argue that the ultimate “custodian” of the prisoner resides in the District of Columbia for the purposes of an action under Section 2241, see Ex Parte Hayes, 414 U.S. 1328, 94 S.Ct. 23, 38 L.Ed.2d 200 (1974) (Order by Justice Douglas), we believe that there is no reason in these cases for the court to deviate from the traditional rule that the residence of the immediate custodian (and thus the place of confinement) is the correct forum. Similarly, actions governed by Section 2255 are to be brought in the sentencing court. In cases properly brought under either 28 U.S.C. §§ 2241 or 2255, the district court of filing must be free to transfer the case to the appropriate district.

5. Speed of Final Resolution.

Although congestion alone is not sufficient reason for transfer, relative docket congestion and potential speed of resolution is an appropriate factor to be considered. See Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043, 1047 (3d Cir. 1973); A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 445 (2d Cir. 1966); Chicago, Rock Island & Pac. RR Co. v. Igoe, 220 F.2d 299, 304 (7th Cir.), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735(1955).

B. Countervailing Interests

In certain cases in which the above-indicated factors would seem to indicate transfer, the Bureau of Prisons, the Board of Parole, or the complainant may be able to demonstrate to the court that other factors dictate retention of the action. In particular, a party may be able to show that testimony by Bureau or Board members or District of Columbia staff will be necessary, and that maintenance of the cause here would facilitate the production of that testimony. This might occur, for example, where testimony is necessary to show whether a national regulation or policy had discriminatory motivations.

We also note that where the Bureau or the Board is granted a transfer for one of the above-mentioned reasons, or for the convenience of its members or staff, the courts may require that the distance of the forum will not be used as a means of denying access to materials or testimony that would have been available in the transferor district. See So-bell v. Reed, 327 F.Supp. 1294 (S.D.N.Y.1971).

It is likely that cases will involve factors both for and against transfer. In such cases, the District Court must determine the correct action in light of all the factors. By way of example, cases may arise in which a number of prisoners from different institutions, represented by counsel in the District of Columbia, bring a suit in which the pleadings allege a pattern of action by the Bureau of Prisons that evidences an unwritten national policy, suggest that proof of such a pattern will be forthcoming at trial, and challenge that pattern as a denial of constitutional rights. In such a case we believe that although some transportation of prisoners might be necessary, the transportation involved would be no greater to this forum than to any one of the number of prison-related districts involved. Further, the proof of an unwritten national policy would be likely to require testimony by a number of officials stationed here in Washington. The presence of Washington counsel willing to undertake the necessary communications would provide assistance of counsel at least as adequate as if counsel in one prison-related district were to attempt to coordinate an action relating to a number of other prisons. In such an action the plaintiffs’ choice of forum should be given substantial weight.

By contrast, a prisoner might bring a pro se suit in which he alleges that the prison officials in his prison failed to give him the benefit of a certain regulation and that there is a pattern of disobedience to such regulation. In this type of case, the district judge might appropriately determine that the case is essentially an individual complaint against an individual wrong, requiring direct consultation with counsel, consultation of local records, and use of local witnesses. In such a case, transfer of the complaint to the district of the plaintiff’s incarceration is indicated.

V

The process of case-by-case determination requires procedures better adapted to informing the judge of all of the relevant considerations than a simple sua sponte order without opportunity to respond. It is also essential that a procedure be established under which the parties are afforded a reasonable chance to seek review of district court action prior to the transfer.

A. Procedure Prior to Entry of the Transfer Order

1. Hearings.

In Fine v. McGuire, 139 U.S.App.D.C. 341, 433 F.2d 499 (1970), we said in reference to a transfer under 28 U.S.C. § 1404(a): “[A]s a matter of fundamental fairness the judge must accord an opportunity to be heard at least whenever there is a possibility that the hearing may develop facts bearing on the decision to be made.” We noted, however, that “We need not here consider to what extent informality of procedure is appropriate for exceptional classes of cases where the convenience of the parties and witnesses are so clear-cut that a per se rule of law for transfer has evolved [citing Young, supra].”

Other circuits, outlining procedures for consideration of motions under 28 U.S.C. § 1404(a), have variously recognized the usefulness of legal memoranda, affidavits, and oral argument. See Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043 (3d Cir. 1973); Plum Tree, Inc. v. Stockment, 488 F.2d 754 (3d Cir. 1973); Technitrol, Inc. v. McManus, 405 F.2d 84 (8th Cir 1968), cert. denied, 394 U.S. 997, 89 S.Ct. 1591, 22 L.Ed.2d 775 (1969); A. Olnick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 445 (2d Cir. 1966); Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267, 274 (3d Cir.1962); Cf. Monsanto Co. v. United Gas Pipe Line Co., 360 F.Supp. 1054 (D.D.C.1973).

Several of the factors we have outlined can be evaluated without the need of oral argument. This should not be taken to imply, however, that it is normally appropriate for the district judge to order transfer sua sponte without benefit of the parties’ views. Where neither party has requested transfer, it would appear that the forum is preferred by both. Accordingly, before ordering transfer the judge should, at minimum, issue an order to show cause why the case should not be transferred, and thereby afford the parties an opportunity to state their reasons for believing that this forum is most convenient or that the proposed alternative forum is inconvenient or not within the ambit of § 1404(a). In some cases an evidentiary hearing may be necessary to develop relevant facts. In general we find ourselves in accord with the Third Circuit’s recent statement:

We do not hold that a hearing is necessarily required on every transfer motion, but where . . . the evidence and arguments supporting a transfer [are] in doubt, a hearing or conference would [be] desirable before the district court decide[s] the motion. Furthermore, in making findings of fact on a transfer order, it would be helpful if the district court specifically related the evidence upon which it relies to the factors stated in 28 U.S.C. § 1404(a).

Plum Tree, Inc. v. Stockment, supra, 488 F.2d at 756 (1973).

2. Notice.

Adequate response to a judicially conceived purpose to transfer, or to a defendant’s motion to transfer, of course requires notice of the proposed transfer. Under District Court Rule 1 — 9(d), responses to motions by parties must come within 10 days of service or “such other time as the court may direct.” A prisoner must be given at least this time to respond. We note, moreover, that many of these petitions are filed pro se, and that notice of the proposed transfer will generally be sent to the prison (as opposed to being served on local counsel).

Both inefficiencies in the mail service and the fact that the prisoner may take somewhat longer to prepare an adequate response than would a trained attorney, suggest to us that in such cases a slightly longer time than provided for in the rule would strike a better balance between the need for expeditious justice and the necessity of allowing a careful response. Noting that the time in the mail for the papers in the cases before us varied between three days (Starnes’ opposition to the motion to transfer) and fourteen days (Small’s petition for writ of mandamus), we believe that a twenty-day period for a response would be adequate in almost all cases. Moreover, given that the actual physical transfer will be delayed for a period following the entry of the transfer order, such period of delay will allow the judge to consider any late-arriving briefs in opposition to the transfer which may have been delayed by inefficiencies in the mail services.

B. Procedure Subsequent to Entry of the Transfer Order

As has been discussed in reference to Starnes, once a record is transferred to a permissible forum in another district, this court loses jurisdiction over the matter. This circuit is, however, the only appropriate forum for direct review of the transfer order. Further, transferee courts have expressed a strong reluctance to review a transfer order indirectly by means of an order to retransfer. See Technitrol, Inc. v. McManus, 405 F.2d 84, 89 (8th Cir. 1968); Devex Corp. v. General Motors Corp., 263 F.Supp. 17, 23 (D.Del.1967); Gulf Research & Development Co. v. Schlumberger Well Sur. Corp., 98 F.Supp. 198 (D.Del.1951) mandamus denied sub nom. Gulf Research & Development Co. v. Leahy, 193 F.2d 302 (3d Cir. 1951), aff’d, 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668 (1952); Rinaldi v. The Elizabeth Bakke, 107 F.Supp. 975 (N.D.Cal.1952). Cf. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). Adequate and orderly review therefore requires that physical transfer be delayed for a period of time after entry of the transfer order, during which time review may be sought in the transferor circuit.

We note that the Southern District of New York has adopted a rule (General Rule 7) that provides for delay of physical transfer. See generally Farrell v. Wyatt, 408 F.2d 662 (2d Cir. 1969); Fisher v. United Airlines, Inc., 218 F.Supp. 223 (S.D.N.Y.1963). The New York rule provides for a stay of 5 days between entry of the transfer order and actual transfer. This rule, however, appears to have been designed to allow experienced local counsel to file in the appellate court. The special circumstances surrounding pro se prisoner petitions filed from afar suggest a somewhat longer period of time than the Southern District’s five-day rule, or even our own District Court’s 10-day practice. The latter, it seems to us, might well be increased to 20 days. On our own part, it is necessary that our Clerk’s office be alert to the receipt within such 20-day period of papers seeking review of the transfer order and to the immediate communication to the District Court Clerk of a request to delay transfer until consideration of such papers can be completed by us.

The petition in No. 73-1034 is dismissed for lack of jurisdiction. The petition in No. 73-1827 is denied.

It is so ordered.

LEVENTHAL, Circuit Judge, with whom Chief Judge BAZELON and Circuit Judge SPOTTSWOOD W. ROBINSON, III,

join, concurring in part and dissenting in part:

I concur fully with the opinion filed by Judge McGowan in Starnes v. McGuire.

Although my views generally coincide with the opinion in Small v. Hart, I disagree with the decision to affirm that case without affording petitioner a hearing prior to transfer of his case. Insead of affirming, I would remand for further consideration.

The principle requiring that the petitioner have notice from the court before his case is transferred is indubitable. I deem it requisite that this court reverse for failure to provide such notice. Presumably the court’s affirmance reflects its view that the case should have been transferred. That may be, but that ruling should be made not by this court but by the district court, and by that court only after hearing from both sides. I would have voted to affirm a transfer entered after notice, but I am not prepared to say that the transfer was necessary as a matter of law.

The petitioner was entitled to an opportunity to persuade the district court in the exercise of its discretion to retain the case. After all, the petitioner was in a forum that Congress made permissible. If the petitioner were alerted that the court was considering a transfer of venue, he might have filed a response that did not dwell so much on his individual situation but rather focused on the claim that it was only a particular application of a general national administrative policy fashioned by the Board of Parole.

One might say, what is the possible utility of remanding the case now, since the district judge has made it so clear what he thinks should be done. There is greater wisdom, I think, in our being rigorous to act only when the district court has moved in strict accordance with requisite procedure. This district judge is open-minded enough to change his view, even though publicly announced, if further procedure presents material that leads him to revise his view.

A disposition without notice is the last place to invoke “harmless error,” or any cognate doctrine. I hesitate to start sliding, backwards, I think, down this slippery slope.

      . Young’s case involved a challenge to the constitutionality of 18 U.S.C. § 4205, a statute which has been sustained against such attack in a number of federal courts of appeals. See, e. g., Cooks v. U. S. Board of Parole, 447 F.2d 63 (5th Cir. 1971); Moore v. Smith, 412 F.2d 720 (7th Cir. 1969); Weathers v. Willingham, 356 F.2d 421 (10th Cir. 1966). This circuit has upheld its analogue in the D.C. Code. Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311 (1963), Wright, J., dissenting.

      . The 1962 amendment to the general venue statute was accompanied by the enactment of 28 U.S.C. § 1361. The latter provides that the district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Note 7 of our opinion in Young characterized this 1962 legislation in these terms:
      Congress found that no sound reason required all actions against federal officials to be litigated exclusively in the District of Columbia (S. Rep. No. 1992, 87th Cong., 2d Sess. 3 (1962) U.S. Code Congressional and Administrative News, p. 2784) and expressed the view that the more liberal venue provisions would materially reduce congestion in the District Court for the District of Columbia which is “already heavily burdened” and where “substantial delays are incurred.” H. R. Rep. No. 536, 87th Cong., 1st Sess. 3 (1961).

      . Starnes was thus seeking to make the same claim as had been raised by Young, note 1 supra. Like Young, Starnes was not confined in the District of Columbia, and neither had he originally been sentenced here.

      . We are advised that the Clerk, as a matter of practice rather than local court rule, delays physical transfer of the record for a period of at least ten days following the entry of a Section 1404(a) transfer order.

      . The procedural history of that order is as follows: On November 10, 1972, plaintiff had mailed to this court a pro se pleading styled a “Motion for Stay of Transfer” and including a request for leave to proceed in forma pauper-is. That was received on November 14, and filed on December 4. Leave to file a petition for writ of mandamus in forma pauperis was granted on January 9, 1973, at which time an order staying transfer would normally have been entered. By that time, however, physical transfer had already taken place. We recognize that procedures must be adopted that will allow physical transfer to be delayed beginning with the receipt of a motion for leave to file a petition for mandamus in forma pauperis.

      . Where the transfer is to a forum that is not permitted under Section 1404(a) (j. e.; a forum where the action could not have been brought) it is possible to argue that the transferor court was without power to order the transfer and that therefore the transferor court never lost jurisdiction over the action. See Farrell v. Wyatt, 408 F.2d 622 (2d Cir. 1969). Similarly, when the appeal has been filed and docketed at the time the physical transfer takes place, the district court is without power to complete a valid physical transfer. See Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866, 869 (2d Cir. 1950).

      . Not only do we believe that for the purposes of Sections 1391(e) and 1404(a) a prisoner has his “residence” at his place of confinement, see Young v. Board of Parole, supra; Phillips v. United States Board of Parole, supra; but see Ellingburg v. Connett, 457 F.2d 240 (5th Cir. 1972); Ott v. United States Board of Parole, 324 F.Supp. 1034 (W.D.Mo.1971), but we also note that Judge Templar of the District Court in Kansas characterized the complaint as sounding in habeas, in which case the appropriate forum .clearly was the place of confinement. Further, this case does not present any type of special circumstance that might impel us to suggest to our brother courts that they vacate the judgment and return the case to us. Cf. Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267 (3d Cir. 1962). Starnes was provided a chance to litigate the scope and constitutionality of 18 U.S.C. § 4205 in Kansas, in the same way that our disposition of Young provided that same opportunity in Pennsylvania. There is certainly no reason why all cases involving the construction or constitutionality of a federal statute should be litigated in the District of Columbia.

      . Small thus was given two opportunities to present his arguments to the district judge on why his case should not be transferred. We note, however, that notice of an order and an opportunity to file a motion for stay should not in the future be deemed adequate to meet the requirements of preorder notice and opportunity to respond which we outline in Part V infra.

      . In Rossello these facts were prisoner’s compliance with the parole procedures to a point past maximum supervision time; in Small the facts were good behavior while in the Colorado penitentiary.

      . There can be no question, of course, that transfer is appropriate on occasion for the convenience of third party witnesses.

      . Other factors relating to the availability of the prisoner, such as communication with counsel, will be discussed at length infra.

      . Two factors not presented to the District Judge, the availability of counsel and the fact that Small’s case sounds in habeas corpus, also suggest that the case was appropriately transferred. See discussion of factors suggesting transfer, infra.

      . The prisoner mandamus or declaratory judgment action must also be distinguished from an action under 28 U.S.C. § 2255. Section 2255 provides in relevant part: “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”
      In reference to these actions, Congress has determined that the need for the records and witnesses in the district of the sentencing court mandates the bringing of the action in the sentencing court. This specific legislative determination that long-distance communication may be necessary does not apply in other types of prisoner petitions, such as habeas petitions under 28 U.S.C. § 2241, which are traditionally brought in the district of confinement, see Ahrens v. Clark, 335 U.S. 484, 499-500, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). Nor do we find any such determination in the provision allowing mandamus and declaratory judgment actions to be brought in the District of Columbia.

      . We note that in Fine, Menard, and Mitchell (three of our principal cases discussing transfer under § 1404(a) and venue under § 1391(e)), the plaintiffs all lived in Maryland. They were thus close to their local counsel — a factor that in all likelihood influenced their decision to bring their actions in the District of Columbia.

      . An undue concentration of prisoner petitions in the District of Columbia also involves the infliction of an additional burden upon a bar which has carried, and continues to carry a very heavy appointive load. To the extent that counsel in the District of Columbia actively seek to represent distant complainants in certain cases, this problem is, of course, mitigated. Where counsel in Washington, D. C. voluntarily undertakes to represent a prisoner, the problems of communication also will be more likely to be overcome.

      . For an indication of the difficulties of transfer, see United States v. LaVance Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145 (1973); Theriault v. United States, 409 F.2d 1313 (5th Cir.), cert. denied, 396 U.S. 933, 90 S.Ct. 274, 24 L.Ed.2d 231 (1969).

      . We note that where the prisoner has been transferred from the institution in which the relevant acts occurred, this reason for transfer would not be applicable. Similarly, where a number of institutions are involved, no one forum may be the most convenient with respect to witnesses and files.

      . It is possible that under the reasoning in Preiser v. Rodriguez, supra, a prisoner bringing an action attacking the statute under which he was convicted is limited to his remedies under 28 U.S.C. § 2255. See 411 U.S. at 489, 93 S.Ct. 1827. Similarly, the prisoner may be limited in bringing an action attacking his confinement but not his conviction (as in a challenge to parole revocation or denial of good time credits, see Preiser v. Rodriguez; supra; Morrissy v. Brewer, 408 U.S. 471, 92 5. Ct. 2593, 33 L.Ed.2d 484 (1972), to the district in which his immediate custodian is found. See Braden v. 30th Judicial Circuit Court, supra; but cf. Eisel v. Secretary of the Army, supra; Ex Parte Hayes, 414 U.S. 1327, 94 S.Ct. 23, 38 L.Ed.2d 200 (1973) (order by Justice Douglas pointing out that the ultimate custodian of a serviceman in Europe was stationed in the District of Columbia).
      We need not resolve, however, whether the venue provisions of 28 U.S.C. § 1391(e) are limited by 28 U.S.C. § 2255 and the doctrines governing federal habeas corpus, for even if the case can only be brought in the district of the custodian’s residence or the sentencing court, transfer is still available to such district under 28 U.S.C. § 1406(a), which provides: s
      The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

      . As we have stated in note 8 supra, an opportunity to respond in the form of a motion to the district judge to stay transfer should not be deemed an adequate substitute for notice and an opportunity to respond before entry of the order.

      . Section 1404(a) permits transfer only to a district where the action “might have been brought.” See Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960).

       I take note that this district judge, after giving summary judgment to the Government in a case that was reversed and remanded for trial, was persuaded by the material evidenced at trial that he should modify the judgment he previously entered. A Quaker Action Group, Inc. v. Morton, 362 F.Supp. 1161, (1973).


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge:

license: Public Domain

text:
    Vicente Villamosa NAZARENO et al., Appellants, v. ATTORNEY GENERAL OF the UNITED STATES.
    No. 74-1148.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 15, 1975.
    Decided March 10, 1975.
    Mark A. Mancini, Washington, D. C.,with whom Jack Wasserman and Benjamin M. Parker, Washington, D. C., were on the brief for appellants.
    Richard I. Chaifetz, Atty., Dept, of Justice, for appellee.

      Before LEVENTHAL and ROBINSON, Circuit Judges, and MARKEY, Chief Judge for the United States Court of Customs and Patent Appeals.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

   LEVENTHAL, Circuit Judge:

Appellants, Fe Nazareno and Enrique Templora Targa, are unmarried adult aliens who where adopted pursuant to state judicial decrees in 1970 and 1972 respectively. The Immigration and Naturalization Service denied petitions filed by their adoptive parents to classify them as the daughter and son of United States citizens for purposes of qualifying under the first preference classification of 8 U.S.C. § 1153 (1970). Following unsuccessful efforts before the Board of Immigration Appeals, appellants filed an action for declaratory judgment and for review in the United States District Court for the District of Columbia. The District Court granted the defendant’s motion for summary judgment and dismissed the complaint.

The sole question presented on appeal is the validity of the Board of Immigration Appeals’ interpretation of section 203(a)(1) of the Immigration and Nationality Act of 1952. 8 U.S.C. § 1153(a)(1) (1970). That section provides:

Visas shall be first made available, in a number not to exceed 20 per centum of the number specified in section 1151(a)(ii) of this title, to qualified immigrants who are the unmarried sons or daughters of citizens of the United States.

The Board ruled that “sons or daughters” in section 203(a)(1) does not include an adopted person who is excluded from the definition of child in section 101(b)(1)(E). It thus ruled that the phrase excluded a person adopted at or over the age of 14, or one adopted under the age of 14 who has not thereafter been in the legal custody of or resided with the adopting parents for at least two years. In essence the Board concluded that a boy or girl could not be a “son” or “daughter” of a United States citizen parent under section 203 if he or she could not previously have been that citizen’s “child” under section 101 of the Act.

We find that the Board’s ruling rests on a reasonable interpretation of the statute and affirm the District Court’s grant of summary judgment to the defendant.

I. BACKGROUND

The Immigration and Nationality Act of 1952 established a system of immigrant selection based on national origin quotas. As a general matter, the system allocated a yearly immigration total among non-Western Hemisphere nations according to a quota for each country derived from the percentage of the 1920 United States population tracing its origin to that country. The immigrant visas assigned to each country were allotted to qualified quota applicants according to their preference classification. Under the 1952 statute sons or daughters of citizens of the United States were entitled to fourth preference. A child of a citizen of the United States, as defined in section 101(b)(1), was a non-quota immigrant who could enter the United States without regard to the number of visas assigned his country of origin.

The original Act contained no definition of son or daughter and made no reference to adopted individuals in the definition of “child.” In Matter of R in 1953 the Board held that an alien adopted at age 24 was entitled to a fourth preference status as a “son” even though he would not prior to 21, have been in the class of person entirely exempt from the quota system because included within the definition of a “child.” A few months after that decision, the Board held in Matter of C that a 21-year-old stepdaughter could not qualify as a “daughter.” It reasoned that since the term child included a definition of a stepchild the “failure to so define the term ‘daughter’ . . . leads to the inference that such omission was intended to confine the term ‘daughter’ to an actual blood relative.”

In 1957, Congress amended the Act to include within the statutory definition of “child” in section 101(b)(1)(E) — which meant an entitlement to entry without regard to quota — minors adopted under the age of 14 who thereafter resided with or were in the legal custody of their adopting parents for at least two years. No change was made in section 203(a)(4) pertaining to the preference status of sons and daughters of United States citizens. In 1959, Congress again amended the Act improving the preference status of unmarried sons and daughters, but limiting the second, third, and fourth preferences to sons and daughters who, prior to reaching age 21, would have qualified as a “child” of the petitioning parent. This amendment had the effect of overruling Matter of R.

The present controversy arises from the ambiguity created by the 1965 amendment to the Act. The primary objective of the 1965 revisions was to replace the national origin quota system with a system which allocates a total of 170,000 visas per fiscal year on the basis of preference category and application date subject to a maximum 20,000 visas per country. The revision replaced the old preference designations with a nine category system which promoted unmarried sons and daughters of United States citizens from the second to the first preference. The portion of the 1965 amendments restructuring the preference classifications omitted the section added in 1959 which defined sons and daughters in terms of a parent-child relationship. As a result, the Act presently includes a reference to adoption in the definition of child, a definition of parent dependent on the term child, and no definition of son or daughter.

Subsequent to the 1965 amendment, the Board rendered its decision in Matter of Caramanzana which denied an alien adopted at age 21 preference status as an “unmarried daughter.” It found that the criteria set forth in section 101(b)(1)(E) concerning an adopted child had to be satisfied for an applicant “to be considered adopted for immigration purposes” and stated that the “failure to specifically reenact” the 1959 provision did not serve as an “indication that any change was intended” by Congress. In the present cases, the Board reaffirmed its position stating that “aliens adopted by United States citizens are not eligible for preference status as a ‘son’ or ‘daughter’ unless they were adopted in conformity with Section 101(b)(1)(E).”

II. MERITS

Textual considerations If one were to look at the current statute afresh, one would find it entirely natural to suppose that a statute using terms like “child,” “son,” “daughter,” and “parent,” used them in an interrelated way, and did not contemplate that a person who was ineligible to qualify as a “child” of a “parent” would at the same time be eligible as a “son” or “daughter.”

The specificity of Congress in excluding a person adopted over the age of 14 from the category of “child” may be taken, therefore, as a likely legislative direction that such person would be excluded from the category of “son.” A possible ambiguity arises from the difference in consequences (a “child” having a more favored status than a “son”) and from legislative history. We turn to the legislative history to see whether this provides an ascertainable legislative intent that the terms “son” and “child” be defined differently as to adopted persons.

Legislative History

What raises a question here is the fact that in 1959, there was a provision that restricted the terms “sons” and “daughters” to “parent-child” relationships, and that this section was removed in 1965. An ambiguity arises from the absence of explicit legislative history as to the purpose of the deletion. The omission may have been inadvertent, or merely stream-lining of the superfluous, that even without an express provision it was obvious that the specifically limited recognition of adoption for a “child” would be applicable to a “son” or “daughter.” However, it is arguable that Congress may have intended to sever the link between the terms “sons and daughters” and “parent and child” through its unexplained deletion of the 1959 provision.

We noted in a recent opinion that in construing ambiguous statutes “Supreme Court decisions counsel us to show ‘great deference to the interpretation given the statute by the officers or agency charged with its administration.’ ” Here the Board’s interpretation deserves great weight because it represents both “a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion” and the “uniform practice of the authorities” maintained consistently since Congress inserted the language limiting adoptions for “child” status. We are required to sustain a construction adopted by the Board if it is reasonable and not contrary to the discernible intent of Congress, even if it is not “the only reasonable” interpretation of the Act.

Several considerations point to the reasonableness of the challenged interpretation. First, the Board’s decision harmonizes the undefined terms, sons and daughters, with the statutory meaning of parent and child. It avoids the curious situation in which a person who was never capable of being a “child” of his or her parents may nonetheless be their “son” or “daughter.” Second, the Board’s reasoning in Matter of Caramanzana regarding persons considered adopted for immigration purposes parallels, though does not rely upon, state court decisions we have surveyed which generally construe statutes referring to the adoption of a “minor child” as excluding the adoption of adults. Third, the Board’s ruling is consistent with its decision in Matter of C considered in conjunction with the 1957 amendment expanding “child” to include certain adopted children. When Matter of R was decided, the Board had more latitude because there was nothing in the statutory provisions that specifically signified a legislative intention to exclude or restrict the eligibility of adopted persons. The provision adding section 101(b)(1)(E) in 1957 is a constraint on such latitude.

Finally, the Board’s limitation on preferences open to persons adopted after age 14 avoids the use of adoption as a fraudulent means of gaining improved immigration status, especially since many such adoptions, and certainly adult adoptions, do not result in either legal obligations or a living relationship among the parties conducive to rooting out fraud. The avoidance of fraud was likely a reason for the limitations on adoption in the 1957 amendment. Congress could have chosen to cope with the fraud problem by providing means for investigation, but that would have imposed a substantial burden on the system.

It is conceivable as appellants argue that Congress intended to draw a tight classification for the nonquota status accorded children, and to provide a more liberal category for the first preference quota status of unmarried sons and daughters. But no such distinction appears in the legislative history. If anything, the legislative history of the 1965 amendment indicates that the statutory rearrangement was not intended to make any substantial change as to adopted persons. In these circumstances we decline to overrule an interpretation by the Board which we cannot say was either unreasonable or contrary to discernible legislative intention.

Affirmed.

      . See Memorandum and Order, Civ. Action No. 970-73 (D.D.C., Nov. 20, 1973) (App. 10). Appellants were both 32 years old at the time of the District Court decision.

      . Section 101(b)(1)(E), 8 U.S.C. § 1101(b)(1)(E) (1970):
      (b) As used in titles I and II—
      (1) The term “child” means an unmarried person under twenty-one years of age who is—
      ****** (E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or statute under this act. [; or]

      . See In re Nazareno, File No. [ AXX-XXX-XXX ] (B.I.A., Mar. 29, 1973) (App. 4-5); In re Targa, File No. [ AXX-XXX-XXX ] (B.I.A., Mar. 30, 1973) (App. 6-7).

      . This conclusion may rest on a reading of the Act which harmonizes the meanings of son, daughter, parent, and child or on a view of the meaning of adoption for purposes of the immigration laws. See discussion at and immediately preceding note 22 infra.

      . See 8 U.S.C. §§ 1151, 1152 (1964), as amended (1970). A major exception to the national origin quota system was the severe limitation placed on the number of visas allocated to aliens from “areas within the Asia-Pacific triangle.”

      . See Section 203(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1153(a) (1952) , as amended (1970).

      . See Section 101(a)(27)(A) of the Immigration and Nationality Act of 1952, 66 Stat. 169 (1953) .

      . See 5 I&N Dec. 438, 439 (B.I.A. 1953).

      . See 5 I&N Dec. 512 (B.I.A.1953).

      . See id.

      . See Section 101(b)(1)(E), 8 U.S.C. § 1101(b)(1)(E) (1970). The provision is set forth in note 2 supra.

      . The 1959 amendment extended the second and third preferences to unmarried sons or daughters of United States citizens and of aliens lawfully admitted for permanent residence, respectively. It also added the following language to section 205(b) of the Act:
      No petition for quota immigrant status or a preference in behalf of a son or daughter under paragraph (2), (3), or (4) of section 203(a) of the Immigration and Nationality Act shall be approved by the Attorney General unless the petitioner establishes that he is a parent as defined in section 101(b)(2) of the Immigration and Nationality Act of the alien in respect to whom the petition is made.
      Act of September 22, 1959, § 5(a), 73 Stat. 644.

      . See 8 U.S.C. §§ 1151, 1152 (1970); S.Rep. No. 748, 89th Cong., 1st Sess. 10, U.S.Code Cong. & Admin.News, p. 3328 (1965).

      . 12 I&N Dec. 47 (B.I.A. 1967).

      . Id. at 48.

      . See In re Nazareno, supra note 3, (App. 5); In re Targa, supra note 3, (App. 7).

      . Cf. Rosenberg v. Yee Chien Woo, 402 U.S. 49, 54-55, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971) (discussing the omission of the words “firmly resettled” from the requirements for qualification under the seventh preference classification).
      The Administration bills introduced in the' 88th and 89th Congresses left intact the 1959 provision defining son and daughter in terms of a parent-child relationship. The deletion of that provision in 1965 is traceable to a bill introduced by Representative Feighan that was the source of the quota system adopted by the House and subsequently enacted into law. Legislative discussion of the Feighan bill does not indicate the purpose, if any, of this deviation from the Administration proposal. However, the fact that the Feighan bill, H.R. 8662, proposed to eliminate the numerical limitation on unmarried sons and daughters (placing them on a par with spouses and children) suggests that its omission of the 1959 definition of sons and daughters was not intended to broaden the scope of those terms to take account of the distinction between non-quota and first preference status. See text accompanying note 23 infra.

      . See NRDC v. Train, 510 F.2d 692 at 706 (D.C.Cir., 1974), quoting Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).

      . See Power Reactor Development Co. v. International Union of Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961), quoting Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933). The 1967 decision in Matter of Caramanzana, supra note 14, constitutes a contemporaneous construction of the first preference classification of the new visa system adopted by Congress in 1965.

      . See Louisville & N.R.R. v. United States, 282 U.S. 740, 757, 51 S.Ct. 297, 75 L.Ed. 672 (1931). The Board has followed its present interpretation of the terms “son” and “daughter” since its 1960 decision in Matter of P, 8 I&N Dec. 527 (B.I.A.1960), and has consistently interpreted those terms as used in the present first preference provision adopted in 1965.

      . See Unemployment Comm’n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946).

      . See 12 I&N Dec. 47, 48 (B.I.A.1967); An-not„ 21 A.L.R.3d 1012, 1016, 1022-23 (1968); 2 Am.Jur.2d Adoption § 11, at 868 (1962).

      . See note 17 supra. The 1965 amendments focused primarily on the replacement of the national origin quota system. See text accompanying note 13 supra. Although the preference status of unmarried sons and daughters of United States citizens was modified and the 1959 express limitation was omitted in 1965, Congress retained section 101(b)(l)(E)’s definition of adopted child as the sole statutory reference to adoption.


author: PER CURIAM:

text:
    Curtis G. MATTHEWS t/a Matthews Apothecary and Hartford Accident and Indemnity Co., Petitioners, v. Noah C. A. WALTER, Deputy Commissioner of U. S. Department of Labor and Frances Valentine, Respondents.
    No. 73-2152.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 15, 1975.
    Decided March 10, 1975.

      John C. Duncan, III, Washington, D. C., for petitioners.
    Maryanne Kane, Washington, D. C., of the bar of the District of Columbia Court of Appeals, pro hac vice by special leave of court for respondent Walter. George M. Lilly, Atty., U. S. Dept, of Labor was on the brief for respondent Walter.
    Charles A. Brady, Washington, D. C., for respondent Valentine.
    Before LEVENTHAL and ROBINSON, Circuit Judges, and MARKEY, Chief Judge, U. S. Court of Customs and Patent Appeals.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

   PER CURIAM:

This appeal challenges an award of death benefits under the workmen’s compensation statute of the District of Columbia, 36 D.C.Code § 501 et seq. (1973), which makes applicable the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (1970), as amended (Supp. II 1972). On February 1, 1972, Frances M. Valentine filed a claim for death benefits as the widow of Eli Huey Valentine who was killed in the District of Columbia on January 6, 1970, while performing work duties for Curtis G. Matthews t/a Matthews Apothecary. After an evidentiary hearing, Noah C. A. Walter, Deputy Commissioner of the Office of Workmen’s Compensation Programs of the Department of Labor, entered a compensation order on November 28, 1972. The order awarded benefits to the claimant as a “surviving widow” within the terms of the Longshoremen’s and Harbor Workers’ Compensation Act. Subsequently, the employer and carrier petitioned the Benefits Review Board to set aside the award. Following oral argument, the Board on September 14, 1973, affirmed the Deputy Commissioner and assessed attorney’s fees of $500 against the employer and carrier for services rendered by claimant’s counsel before the Board. The award of attorney’s fees was made under a 1972 amendment to the Act which became effective on November 26, 1972, prior to the hearing before the Board. 33 U.S.C. § 928 (Supp. II 1972).

The employer, Curtis G. Matthews t/a Matthews Apothecary, and the carrier, Hartford Accident and Indemnity Co., bring this appeal challenging both the determination that the claimant qualified as a surviving widow under the Act and the award of attorney’s fees by the Board. We affirm the award of death benefits to claimant as the surviving widow of Eli Huey Valentine. We find that the Board failed to follow its regulations requiring a “complete statement of the extent and character of the necessary work done” as a predicate for the grant of fees and remand the fee award to enable the Board to consider the matter after receipt of the required statement.

I. THE SURVIVING WIDOW REQUIREMENT

The Act provides that compensation “known as a death benefit” shall be payable to “A surviving wife or dependent husband . . . [or] surviving child.” 33 U.S.C. § 909 (1970), as amended (Supp. II 1972). “The term ‘widow’ includes only the decedent’s wife living with or dependent for support upon him at the time of his death; or living apart for justifiable cause or by reason of his desertion at such time.” 33 U.S.C. § 902(16) (1970), as amended (Supp. II 1972). In interpreting this section the Supreme Court found that “the essential requirement is a conjugal nexus between the claimant and the decedent subsisting at the time of the latter’s death.” Thompson v. Lawson, 347 U.S. 334, 336-37, 74 S.Ct. 555, 557, 98 L.Ed. 733 (1954). Here claimant contended that she was living apart from the decedent for justifiable cause at the time of his death. Petitioner challenges this contention and further urges that claimant does not meet the test set forth in Thompson because she had embarked upon a permanent relationship with another man. We shall examine each of these claims in turn.

A. Justifiable Cause

Claimant, the only witness before the Deputy Commissioner, stated that she and the decedent agreed to separate in 1954 because his excessive drinking was a bad influence on their two minor children. (JA 20-24, 30). The Valentines maintained separate abodes from the time of the separation until Mr. Valentine’s death in 1970. The Deputy Corn-missioner concluded that “the credible evidence sustains that at the time of the employee’s injury and death the claimant widow was living apart from the employee for justifiable cause.” (JA 79).

Petitioners contend that the decedent’s drinking and its adverse potential impact on his minor children do not constitute the sort of conduct which may serve as justifiable cause for the claimant’s living apart from her husband. This contention rests solely on our decision in Weeks v. Behrend, 77 U.S.App.D.C. 341, 135 F.2d 258 (1943). That decision affirmed a district court holding that the Deputy Commissioner’s finding of “living apart for justifiable cause” was “not supported by substantial evidence” where the couple separated by mutual consent in order to enable the husband to obtain employment from the Public Relief Bureau. Id. at 342, 135 F.2d at 259. This court opined that Congress had looked to the law of divorce and separation in fashioning the “justifiable cause” requirement and intended the phrase as “substantially equivalent to a ‘matrimonial offense.’ ” Id. Subsequent to Weeks the Fifth Circuit gave justifiable cause a broader and more straightforward interpretation, finding a mother-in-law’s violent objection to the claimant and her cutting up of claimant’s clothes sufficient as a justifiable cause for living apart. We read Thompson as undermining the narrow construction of “justifiable cause” offered in Weeks. The Court stated in Thompson that it would not assess “the marital conduct of the parties. That is an inquiry which may be relevant to legal issues arising under State domestic relations law. Our concern is with the proper interpretation of the Federal Longshoremen’s Act.” 347 U.S. at 336, 74 S.Ct. at 556. We conclude that the Deputy Commissioner and the Board properly found that the decedent’s drinking and its effect on claimant’s minor children constituted justifiable cause for their separation.

In their brief, petitioners claimed that even if a justifiable cause existed at the time of the separation it did not persist until the date of the employee’s death, the time fixed by the statute for ascertaining the existence of justifiable cause. The justifiable cause requirement is met where, as here, it continued over a period (at least 11 years) sufficient to shape the claimant’s way of life. Counsel for petitioners conceded as much, at least where there was no subsequent “misconduct” undercutting conjugal nexus. This comports with human realities and avoids working undue hardships upon individuals by forcing either the forfeiture of benefits or the abandonment of a life style to which they had become accustomed following the justified separation. In essence, we believe that at least in cases like the present one the effect of the original justification persists and inheres in the relationship of the parties despite the change in circumstances since the initial separation.

B. Conjugal Nexus

Thompson teaches that recovery of benefits as a surviving widow is dependent on the existence of a “conjugal nexus” between the claimant and the decedent at the time of the employee’s death. As this court found in Liberty Mutual Insurance Co. v. Donovan, 95 U.S.App.D.C. 49, 51, 218 F.2d 860, 862 (1955), the conjugal nexus test focuses on the “real status” of the claimant “in respect to the deceased, not the existing legal formalities of the relationship.” Pointing to language in Thompson, petitioners contend that the claimant is barred from obtaining death benefits because she embarked on a permanent relationship with another man, a Mr. Mosely, prior to decedent’s death. Certainly, the existence of a continuing — or “permanent” — relationship with another man, is a factor to be weighed in ascertaining the real status of the claimant and the decedent, and it may well be that in other cases, and perhaps even in most cases, that it would negative the requisite conjugal nexus. However, we do not read Thompson as establishing the absence of a permanent relationship as a separate and indispensable requirement.

The relevant facts relating to the real status of the Valentines at the time of Mr. Valentine’s death in 1970 can be briefly summarized. The couple married in 1939, had two children (Donna in 1940 and Gary in 1947), and separated in 1954. About 1957, Mrs. Valentine began having sexual relations with Cleveland Mosely that resulted in the birth of a child, Leslie, in 1958. Claimant continued to have relations with Mosely up to and after the death of Mr. Valentine. Following the 1954 separation, claimant never lived in the same abode with Mosely or any other man. Decedent visited the claimant during the entire 16 year span of their separation, continued to have sexual intercourse with her, and occasionally spent two or three nights a week with her. He contributed to his wife’s support for a period of about three years after the separation and gave money for support of the children (including Leslie) thereafter. He knew Mosely was Leslie’s father and accepted her and his wife’s relationship with Mosely. Claimant visited the decedent at the time of his illness in 1969 and helped care for him at that time. She consistently held herself out as Mrs. Valentine and was known to her friends and the community as Mrs. Valentine. Claimant never divorced the decedent or attempted to marry Mr. Mosely.

We believe these facts provide substantial evidence to support the Board’s finding of a conjugal nexus between the Valentines at the time of the decedent’s death. In Thompson the Court found that claimant’s “embarking upon another permanent relationship” was a “conscious choice to terminate her prior conjugal relationship” with the decedent and to sever “the bond which was the basis of her right to claim a death benefit.” Here, by contrast, the continuing relationship with Mosely as a boy friend did not displace claimant’s relationship with the decedent so as to destroy their continued real status as husband and wife. Claimant’s continued sexual relations with decedent, her consistent holding out as decedent’s wife, her solicitude to decedent during his 1969 illness, his contribution of funds from his meager income, his knowing acceptance of claimant’s relationship with Mosely, the absence of an attempt by either party to remarry, and the fact that claimant never lived in the same abode with Mosely, all constitute a complex of circumstances that are substantial evidence to support a finding of a conjugal nexus at the time of Mr. Valentine’s death.

11. THE AWARD OF ATTORNEY’S FEES

Petitioners contend that the Review Board acted unconstitutionally in awarding attorney’s fees to claimant’s counsel for services rendered after the effective date of the authorizing amendment in a case concerning a death occurring prior to that date. The Second Circuit recently considered this particular question and concluded that Congress intended that the amendment apply in pending proceedings to services performed after its effective date and that such application was devoid of constitutional infirmities. We agree with the Second Circuit’s position.

However, we remand the $500 award for further proceedings because it was granted by the Review Board in violation of its own regulations, set forth in the margin. Here the parties agree that the Board made its award without benefit of a “complete statement of the extent and character of the necessary work done” and has not subsequently received such a statement. Counsel for the agency lists factors pointing to the reasonableness of the $500 award and contends that “[t]o submit a time sheet in accordance with the Secretary’s Regulation under those circumstances appears foolish and an insult to the Board’s intelligence.” The requirement of such a statement secures information to enhance the basis for deciding what is “a reasonable attorney’s fee.” At least in the absence of a reasoned determination that “in a given case the ends of justice require” a departure from an agency’s regulations, they must be observed.

We affirm the grant of death benefits to the claimant and remand the award of attorney’s fees for further proceedings consistent with the requirements of the Board’s regulations.

So ordered.

      . See 20 C.F.R. §§ 702.132, 802.203(a) (1974). These sections are set forth at note 14 infra.

      . The Act provides that compensation for death shall be a percentage of the average wages of the deceased. The percentage varies according to the survivors of the deceased employee. In the present case, claimant was awarded 35% of decedent’s $40 average weekly wage because there were no surviving “children” within the meaning of the Act. (JA 79). The 1972 amendments increase the amount available for funeral expenses and the percentage of the deceased employee’s wages to be awarded a “widow” or “widower.” See 33 U.S.C. § 909 (Supp. II 1972).

      . Inexplicably, the Deputy Commissioner found that the Valentines separated in 1952. (JA 78). In 1954, the couple’s children were fourteen and seven years old. See JA 20-21; text at note 10 infra.

      . See Henderson v. Avondale Marine Ways, Inc., 204 F.2d 178 (5th Cir.), cert. denied, 346 U.S. 875, 74 S.Ct. 128, 98 L.Ed. 77 (1953).

      . See Brief for Petitioners at 7-8.

      . See 33 U.S.C. § 902(16) (1970), as amended, (Supp. II 1972).

      . Although the Valentines’ two children were 29 and 22 years old at the time of decedent’s death, Leslie (claimant’s daughter by Cleveland Mosely) was only 12 years old. Thus, if decedent’s drinking problem continued, it is possible that the reason for the initial separation still had vitality in 1970. The absence of evidence or findings regarding decedent’s drinking habits during the years prior to his death precludes us from resting our decision on a continued risk to claimant’s minor child.

      . Petitioners urge that the evidence of claimant’s continuing relationship with Mosely over an approximately fifteen year period (from 1957 until the 1972 hearing) establishes that she had embarked on a permanent relationship with another man. The Deputy Commissioner made no findings with regard to the permanency of claimant’s association with Mosely. Since we reject petitioners’ contention that a permanent relationship with another man would constitute an absolute bar to compensation, we have no occasion to delineate indicia of permanency or characterize the claimant’s relationship with Mosely.

      . We believe that petitioners’ attempt to raise claimant’s relationhip with Mosely as a separate and absolute bar to receipt of benefits, even where there is a finding of conjugal nexus, is contrary to Thompson because it would impose a penalty based on an assessment of “the marital conduct of the parties.” 347 U.S. at 336, 74 S.Ct. at 556.

      . See JA 20-21, 30, 75.

      . See 347 U.S. at 337, 74 S.Ct. at 557. The facts of Thompson illustrate the circumstances in which another permanent relationship represents a conscious choice to terminate a prior conjugal relationship. The claimant, Julia Thompson, was deserted by the decedent in 1925. In 1940 she “married” Jimmy Fuller and was known thereafter as Julia Fuller. In 1949 she formally divorced Fuller. Shortly before Thompson’s death in 1951, claimant refused his request to “take him back” and never resumed a husband-wife relationship with him prior to his death. See id. at 335, 74 S.Ct. at 556.

      . We refer to decedent’s financial contributions to the claimant as a factor bearing on the existence of a conjugal nexus between them, rather than as evidence that claimant might qualify as a widow because she was dependent for support upon decedent at the time of his death.

      . See Overseas African Construction Corp. v. McMullen, 500 F.2d 1291, 1297-98 (2d Cir. 1974). Accord Dillingham Corp. v. Massey, 505 F.2d 1126, 1129 (9th Cir. 1974).

      . 20 C.F.R. § 802.203 (1974) Fees for services.
      (a) No fee for services rendered on behalf of a claimant in the pursuit of an appeal shall be valid unless approved pursuant to 33 U.S.C. 928 as amended and the regulations promulgated pursuant to the respective Acts (see §§ 702.132-702.135 and 725.404 of this title).
      20 C.F.R. § 702.132 (1974) Fees for services.
      An attorney or other representative seeking a fee for services performed on behalf of a claimant with respect to claims filed under the Act shall make application thereof to the persons, administrative body, or court before whom the services were performed (see 33 U.S.C. 928(c)). The application shall be supported by a complete statement of the extent and character of the necessary work done. Any fee approved shall be reasonably commensurate with the actual necessary work performed, and shall take into account the capacity in which the representative has appeared, the amount of benefits involved and the financial circumstances of the claimant. No contract for a stipulated fee or for a fee on a contingent basis shall be recognized.

      . Brief for Respondent Deputy Commissioner at 14..

      . 33 U.S.C. § 928(a) (Supp. II 1972).

      . See American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970), quoting NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764 (8th Cir. 1953). The availability of this limited exception would appear to turn on whether the regulations were intended to “confer important procedural benefits” upon the parties before the agency or whether they are merely procedural rules for the orderly transaction of agency business. See American Farm Lines, supra, at 538-39, 90 S.Ct. 1288, 25 L.Ed.2d 547.