author: COFFIN, Chief Judge.

text:
    UNITED STATES of America, Appellant, v. KENNEBEC LOG DRIVING COMPANY et al., Appellees.
    No. 73-1163.
    United States Court of Appeals, First Circuit.
    Argued Sept. 12, 1973.
    Decided Nov. 30, 1973.
    As Amended Dec. 19, 1973.

      Walter Kiechel, Jr., Deputy Asst. Atty. Gen., with whom Wallace H. Johnson, Asst. Atty. Gen., Peter Mills, U. S. Atty., Raymond N. Zagone, Thomas C. Lee, and Carl Strass, Attys., Dept. cf. Justice, were on brief, for appellant.
    Roberts B. Owen, Washington, D. C., with whom William D. Iverson, Covington & Burling, Washington, D. C., Vincent L. McKusick, Daniel E. Boxer, Pierce, Atwood, Scribner, Allen & Mc-Kusick, Loyall F. Sewall, Verrill, Dana, Philbrick, Putnam & Williamson, Portland, Maine, Norman M. Heisman, and Ellis A. Horwitz, Philadelphia, Pa., were on brief, for appellees.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Defendant Kennebec Log Driving Company' is in the business of driving pulp logs down the Kennebec River to paper mills downstream. Defendants Scott Paper Company and Hudson Pulp and Paper Corporation have in the past engaged Kennebec Log Driving Company to perform this service for them, although at the present time only Scott Paper Company continues to do so. The United States claims that this activity violates two provisions of the Rivers and Harbors Act of 1899 in that the floating of masses of logs and the erection and maintenance of booms to guide and collect these logs constitutes obstruction to navigation on a navigable water of the United States without a permit in violation of section 10 of the Act (33 U.S.C. § 403), and that the sinking of some waterlogged timber and the sloughing off of significant quantities of bark from the floating logs constitutes deposit of refuse in a navigable water of the United States without a permit in contravention of section 13 of the Act (33 U.S.C. § 407). The government sought an injunction against further log driving and a court order requiring affirmative remedial action including the removal of all sunken logs from the Kennebec and the dismantling of all logging booms on the river.

On cross motions for summary judgment the court below, 356 F.Supp. 344 (D.Me.1973), found that the Act of May 9, 1900 (33 U.S.C. § 410) created an exception from the provisions of the Rivers and Harbors Act of 1899 for log driving on rivers where log driving is the principal form of navigation, and, since it was uncontested that the Kennebec falls into that category of river, that the activities of defendants are legal despite the lack of any permits.

I

This case requires us, in the eighth decade of the twentieth century, to scrutinize the legislative history of two statutes passed at the turn of the century, as well as the wording of the statutes themselves, to see how they apply to a lawsuit impelled by contemporary concern over the quality of our environment. The sole issue presented to us involves interpretation of the Act of May 9, 1900 and of certain provisions of the Rivers and Harbors Act of 1899. Our concern is with the scope of the Act of 1900 and the extent to which it overrode the earlier Act as applied to log driving on rivers like the Kennebec.

Log driving has been carried out on the upper Kennebec River by the defendant log driving company since 1835 and the techniques involved have remained essentially unchanged down to the present. Pulpwood logs are placed in the river and allowed to float downstream on the force of the current. Booms, usually consisting of strings of logs fastened together with chains, are placed so as to guide the logs away from inlets and obstacles. Where there is insufficient current to carry the logs downstream they are collected in large booms and gathered together and formed into rafts which are towed by small boats to a point where the logs can again be released into the current. Where dams block the river the logs are sluiced over them. At the mill site the logs are guided toward the shore and removed from the river. In the course of a drive a number of logs inevitably become waterlogged and sink to the bottom. Another acknowledged side effect of the practice of log driving is the deposit into the river of quantities of bark which peel off the floating logs. No permits have ever been sought by defendants from any federal government agency for their log driving activities.

Recent widespread concern over the quality of the environment has resulted in vigorous remedial action in a number of areas, including the enactment of comprehensive air and water quality legislation by the Congress. Although the 1970 Federal Water Pollution Control Act and the 1972 amendments do not deal directly with the ecological impact of log driving upon the rivers used for such purposes, concern over this problem in the state of Maine has led to action designed to curtail and eventually eliminate logging in the state’s rivers. In 1971 the Great Northern Paper Company forecast the end of its log drives on the West Branch of the Penobscot River by 1972 at the latest, and Scott Paper Company announced publicly that it would terminate log driving on the Kennebec, the very activity in issue here, no later than October 1, 1976. And in May of 1971 the Maine legislature enacted a statutory prohibition against all log driving on Maine rivers effective October 1, 1976, 38 M.R.S.A. § 418.

In order to discuss the proper application of the Acts of 1899 and 1900 to the activity in issue a brief description of these Acts, and their legislative history, is appropriate. Section 10 of the Act of 1899 bans the creation of obstructions to the navigable capacity of navigable waters of the United States, including the “building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty or other structures in any navigable river” unless permission is obtained beforehand from the Secretary of the Army (on recommendation of the Chief of Engineers). Section 13 of the Rivers and Harbors Act of 1899 is the now famous Refuse Act and bans the deposit of refuse matter into navigable waters of the United States, either from floating craft or from the shore, or the deposit of material on the banks of any navigable water which might be washed into the water and obstruct navigation, unless prior permission is obtained from the Secretary of the Army.

Section 15 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 409) bans certain specific activities when conducted in such a way as to obstruct navigation. Relevant to our discussion is the prohibition contained in this section on the floating of “loose timber and logs” and “sack rafts of timber and logs” on streams or channels actually navigated by steamboats whenever it might “obstruct, impede, or endanger navigation”. Section 15 contains no provision for permits; its proscriptions, unlike those of sections 10 and 13, are absolute.

The legislative history of the Rivers and Harbors Act in 1899 in general, and of sections 10 and 13 of that Act in particular, has been explored in some depth by the Supreme Court in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960), United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), and, most recently, in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). It is clear that the Act was considered by Congress to be not much more than a compilation of various preexisting enactments. An 1897 report of the Chief of Army Engineers, submitted to Congress by the Secretary of War, had set out the text of all federal laws concerning the protection of navigable waters and had recommended a new statute which would assemble the previously scattered legislation on the subject and would clarify some of the language. The understanding of the Congress as to this proposed new law was that in relation to prior law “There are not ten words changed in the entire thirteen sections”. As passed the Act of 1899 was said to contain “no essential changes in the existing law.”

But despite the congressional impression that very little that was new was contained in the Rivers and Harbors Act of 1899 the language in section 15 concerning log driving apparently originated in the Chief of Engineer’s report. Unlike sections 10 and 13, this part of section 15 appears to have no statutory antecedents. Since the Act of 1899 engendered relatively little legislative comment or debate, and what there is does not mention log driving, the complete ban on this activity written into federal law in section 15 comes down to us without the usual clarifying light of legislative history.

The sweep of the prohibition on log driving contained in section 15 very quickly led to congressional reappraisal. The legislative history leading up to the adoption the next year of what is now 33 U.S.C. § 410 indicates that the concern which led to this amendment of section 15 related to the conflict between the needs of those who used the rivers to navigate steamboats and those who used the same rivers to float logs downstream to mill sites. The language of section 15 resulted in a great over-weighting of the balance in favor of the steamboat, which imbalance the later Act was meant to rectify.

A bill to remove the log driving prohibition from section 15 was introduced in the first days of the very next session of Congress and referred to the House Committee on Rivers and Harbors. The committee reported back a bill which would have exempted the Mississippi River above the St. Paul boom, and certain of its tributaries, from the reach of section 15, with provision for the regulation of log driving on those waterways by the Secretary of War. The report submitted to the House by the committee discussed the methodology of log driving on the rivers in question, and also discussed the extent of steamboat navigation. It found that “the inevitable result of carrying on this logging business in the way it is carried on is to obstruct, impede, and endanger such steamboat navigation at certain seasons of the year”, but concluded that section 15 was too harsh a remedy. After House passage of this bill the Senate Committee on Commerce reported an amended bill which would have extended to any river, rather than just the upper Mississippi, the provision for regulation of log driving of the House bill, “whenever in [the Secretary of War’s] judgment such regulations are necessary to equitably adjust and govern the conflicting interests of logging and other forms of navigation.” The bill also provided that whenever such regulations had been issued the river affected would then be exempt from section 15. The Conference Committee then devised the compromise measure which became the Act of May 9, 1900. It extended an exemption to section 15’s ban on log driving to those rivers on which log driving is the principal form of navigation and also provided that the Secretary of War (now the Secretary of the Army) was empowered to issue regulations “so framed as to equitably adjust conflicting interests between the different methods or forms of navigation” on such rivers.

II

The parties disagree as to the significance to be accorded to the fact that defendants are now barred by Maine law from continuing the activity at issue here after October 1, 1976. Defendants contend that the 1976 deadline makes this case, while obviously not technically moot, realistically unnecessary and undeserving of expenditure of the parties’ and the court’s energies. There are a number of reasons why we are unpersuaded by such arguments. First, the cessation of further log driving only goes to one aspect of the case, the propriety of a court order enjoining the activity, and does not affect the question of whether any remedial relief should be granted. Second, it is always possible that the present state deadline might be extended or eliminated. Third, three years is a fairly long time, long enough for the deposit on the bottom of the Kennebec of a not insubstantial number of logs, as well as loose bark. Most important, this suit, although belated, charges a violation of federal laws designed to protect and conserve our rivers, described by the Supreme Court (quoting Mr. Justice Holmes) as “more than an amenity ... a treasure.” Resolution of the issue presented in this case, with its possibility of recurrence wherever log driving is still carried on, presents us with what we consider to be an important question, and one which it is our duty to resolve.

It is clear that the upper Kennebec River, where the defendants engage in log driving, is one on which the principal form of navigation is log driving and thus is within the purview of the Act of May 9, 1900 (33 U.S.C. § 410). The government argues, however, that any exemptions from the provisions of the Rivers and Harbors Act of 1899 contained in the later Act are conditioned upon prior promulgation by the Secretary of the Army of regulations' adjusting navigational conflicts. We cannot accept that analysis. The structure of the Act is such as to make the government’s interpretation improbable. It begins with a flat and unconditional exemption from the prohibition contained in section 15 as to log driving. It then provides that such exempted activity shall be subject to regulations prescribed by the Secretary of the Army and states that the Secretary is “authorized and directed” to prescribe rules and regulations, so framed as to adjust conflicts between modes of navigation. Logically, this format is consistent only with the view that the promulgation of regulations is a condition subsequent, not a condition precedent, to the exemption. We conclude that the duty of the Secretary of the Army, under the Act of May 9, 1900, to issue rules and regulations is not a condition precedent to the exemption contained in the Act to the ban on log driving contained in section 15 of the Rivers and Harbors Act of 1899.

We now come to the heart of the issue. The district court, in a thoughtful and well documented opinion, concluded that the Act of May 9, 1900 not only exempted log driving on rivers like the Kennebec from the flat prohibition of section 15 of the Rivers and Harbors Act of 1899, but from sections 10 and 13 as well. It thought such a result required because otherwise one would have to “attribute to Congress an intent to legalize log driving and at the same time to prohibit its unavoidable side effects.”

While we agree with the district court, for reasons set forth below, that the exemption to section 15 of the 1899 Act in the Act of 1900 necessarily extends as well to section 10, we do not agree that it also extends to the pollution control aspects of section 13. First of all, there is no logical dilemma in finding log driving on rivers like the Kennebec exempt from section 15 but not exempt from section 13. Section 13 does not operate as a complete prohibition on any activity. Discharge of refuse is illegal only if no permit is obtained beforehand. There is a vast array of human activity, particularly commercial activity, which requires prior governmental permission. But one does not in common sense terms think of such activity as prohibited. Rather, it is thought that it is limited or controlled. The very sweep of section 13 argues against the view that Congress could have meant it as a stark ban on all behavior encompassed within its broad terms. Instead, it was envisaged as a means of regulating and bringing under scrutiny actions which might threaten the well-being of the nation’s waterways. In contrast, section 15 is absolute. There is no way to escape its proscription other than to entirely cease the illegal conduct. Congress, in retaining the applicability of section 13 to log driving, did not legalize log driving and at the same time prohibit its unavoidable side effects and so produce a contradictory result. It merely quite logically exempted it from the absolute ban of section 15 while retaining the much more limited restriction produced by section 13. Such a reading of the scope of the Act of 1900 produces a consistent and reasonable legislative scheme. Furthermore, Congress did not say in the Act of May 9, 1900, as it very easily could have, that log driving on the particular rivers was to be exempt from all provisions of the prior Act. In terms the exemption extends only to section 15.

The legislative history demonstrates that the concern of Congress in enacting the Act of 1900 was the navigational conflict between steamboat traffic and log driving, which conflict section 15 of the 1899 Act had resolved entirely in favor of the steamboat. It was in the context of the lifting of the complete ban of section 15 that statements were made to the effect that log driving was being legalized. However, there is not a word in the legislative history, or in the 1900 Act, concerning the sinking of waterlogged timber, the sloughing of bark, or the pollution caused by log driving. After exhaustive research into the history and purposes of the Rivers and Harbors Act of 1899 the Supreme Court has concluded that section 13 of that Act was intended by the Congress to prevent pollution, as well as obstruction, of navigable waters. As found by the Court, “the ‘serious injury’ to our watercourses . sought to be remedied [by the Rivers and Harbors Act] was caused in part by obstacles that impeded navigation and in part by pollution”, and that the term “refuse” as used in section 13 “includes all foreign substances and pollutants . . . United States v. Standard Oil Co., 384 U.S. 224, 228-29, 230, 86 S.Ct. 1427, 1429, 16 L.Ed.2d 492 (1966), a finding strongly reaffirmed in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 671, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). See also Illinois v. City of Milwaukee, 406 U.S. 91, 101, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). The Court has also repeatedly admonished that the Refuse Act be dealt with by the courts “charitably”, an admonishment that would not be heeded by us were we to find an exception to the operation of section 13 by virtue of a later statute which does not even mention section 13, or pollution, and whose legislative history is barren of the least hint that the creation of such an exception was contemplated.

But while the matter of pollution is not mentioned or dealt with in the Act of 1900, the use of booms in the navigation of floating logs was recognized by reference to booms in the House Report. Moreover, the use of booms is an integral part of the control of floating timber. Many of the regulations promulgated pursuant to the Act of May 9, 1900 recognize that the location and use of logging booms is often vital to any plan to minimize navigational conflicts. Under these circumstances, it is clear that the district court was correct in finding that in exempting logging from the navigational restrictions of section 15 of the Act of 1899 the Congress must necessarily have also meant to exempt logging booms from any restriction contained in any other sections. This same analysis includes other aspects of log driving which might have a navigational impact. The purposes served by section 10 (and one of the purposes served by section 18) and the purposes served by section 15 in this matter are essentially the same. Furthermore, these interests are in large part preserved by the provision in the Act of 1900 for promulgation of rules and regulations to adjust navigational conflict.

The regulations which the Secretary of the Army is empowered to issue under the Act of 1900 are confined to the question of navigational conflicts, unlike the permits authorized under section 13 of the Rivers and Harbors Act of 1899 which are not so limited in terms. This is consistent with the view that Congress conceived of the Act of 1900 as resolving the navigational conflict between logging on waterways like the upper Kennebec River and other forms of water transport in favor of logging, but that it had no intent to exempt this activity from the pollution control features of section 13 of the 1899 Act.

We therefore find that the Act of May 9, 1900 exempts log driving on the upper Kennebec (and its necessary incidents, including the use of logging booms) from the provisions of the Rivers and Harbors Act of 1899 concerned with obstruction to navigation, and conflicts with other modes of navigation, but that nothing in the Act or its legislative history exempts this activity from the restrictions on pollution of navigable waters found in the Refuse Act (33 U. S.C. § 407).

III

The district court found that section 13 is “facially applicable” to defendants’ activities and that “peeled bark and sunken logs on the river bottom are deposits of ‘refuse matter’ within the meaning of section 13”. We concur with these findings and remand for a determination of the question which the court below felt that it did not have to reach; whether there are certain deposits of material into navigable waters so intimately related to the actual conduct of navigation by water that despite the facial applicability of the statute it could not have been in the contemplation of Congress that it apply in such instances.

If the district court finds a violation of section 13 of the Rivers and Harbors Act of 1899 it will then be faced with the question of appropriate relief. We have been advised by counsel that a permit program is now in effect. Should this not be so, this fact will of course be taken into account in framing any equitable decree affecting future log driving. Insofar as relief in the nature of removing the accumulated refuse of three quarters of a century is concerned, we recognize that the burden of removing all of the logs which may have sunk to the bottom of the river in seventy-three years is obviously an extremely heavy one. Hercules, asked to clean the Augean stables, diverted the courses of two rivers, but he had clean rivers to work with. Furthermore, defendants may be able to argue that they relied on long standing government action or inaction. While such reliance will not excuse disobedience to the law it may be a consideration to be weighed in the framing of broad equitable relief. The requirements of fairness invoked by the Court in United States v. Pennsylvania Industrial Chemical Corp., supra, in gauging the propriety of criminal sanctions, may also apply when extreme hardship may be caused by an equity decree in this type of case.

On the other hand, those who defend our nation’s waterways confront us with compelling and urgent problems, in the words of the Supreme Court, a “crisis”, which requires that the courts act in the broad public interest. The preservation of our rivers was the task undertaken by the Congress when it enacted the Rivers and Harbors Act of 1899. That the age and obscurity of this statute does not diminish its force and that the prevention of pollution was at least one of its aims was made entirely clear in Pennsylvania Industrial Chemical Corp., which was handed down by the Supreme Court after the decision below. Thus, while awareness of the economic and practical burdens which might be placed upon those who use the rivers for logging may measurably limit the scope of relief given, it cannot today justify ignoring the terms of section 13 of the Rivers and Harbors Act of 1899.

Judgment vacated. Remanded to the District Court for proceedings not inconsistent with this opinion.

STATUTORY APPENDIX

33 U.S.C. § 403

(Section 10 of the Rivers and Harbors Act of 1899)

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

33 U.S.C. § 407

(Section IS of the Rivers and Harbors Act of 1899)

It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.

33 U.S.C. § 409

(Section 15 of the Rivers and Harbors Act of 1899)

It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; or to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; or to float loose timber and logs, or to float what is known as “sack rafts or timber and logs” in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation. .

33 U.S.C. § 410

(Act of May 9, 1900)

The prohibition contained in section 409 of this title against floating loose timber and logs, or sack rafts, so called, of timber and logs in streams or channels actually navigated by steamboats, shall not apply to any navigable river or waterway of the United States or any part thereof whereon the floating of loose timber and logs and sack rafts of timber and logs is the principal method of navigation. But such method of navigation on such river or waterway or part thereof shall be subject to the rules and regulations prescribed by the Secretary of the Army as provided in this section.

The Secretary of the Army shall have power, and he is authorized and directed to prescribe rules and regulations which he may at any time modify, to govern and regulate the floating of loose timber and logs, and sack rafts, (so called) of timber and logs and other methods of navigation on the streams and waterways, or any thereof, of the character, as to navigation, heretofore in this section described. The said rules and regulations shall be so framed as to equitably adjust conflicting interests between the different methods or forms of navigation; and the said rules and regulations shall be published at least once in such newspaper or newspapers of general circulation as in the opinion of the Secretary of the Army shall be best adapted to give notice of said rules and regulations to persons affected thereby and locally interested therein. . . .

      . In 1971 Hudson Pulp and Paper Corporation indicated that it intended to terminate its relationship with the Kennebec Log Driving Company and it now no longer placee logs in the river.

      . Defendants conceded below that the upper Kennebec is a navigable water of the United States within the purview of the Rivers and Harbors Act of 1899.

      . Private and Special Laws of Maine of 1829-35, ch. 590 (1835).

      . According to the minimum figure presented to the district court, 1.98% of the pulpwood placed in the river sinks to the bottom.

      . 33 U.S.C. §§ 1151-1175.

      . 33 U.S.C. §§ 1251-1376.

      . The parties agree that the recent legislation has no direct bearing on this litigation.

      . See 1 Maine Leg.Ree. 470, 497 (1971).

      . H.R.Doc.No.293, 54th Cong., 2d Sess. (1897).

      . Statement of Senator Frye, Chairman of the Senate Rivers and Harbors Committee, 32 Cong.Rec. 2297 (1899).

      . Statement of House Conferees, 32 Cong. Rec. 2923 (1899).

      . See II.R.Rep.N0.731, 56 Cong., 1st Sess. (1900).

      . 33 Cong-.Ree. 840 (1900).

      . H.R.Rep.No. 731, 56 Cong., 1st Sess. (1900) at 3.

      . 33 Cong.Rec. 4405 (1900), Sen.Rep.No. 1035, 56 Cong., 1st Sess. (1900).

      . 31 Stat. 172, now codified as 33 U.S.C. § 410.

      . Based upon the figure, given in oral argument, of 300,000 cords of wood floated down the river each year and accepting approximately 2% as the rate that such logs sink to the bottom (see n. 4 supra) then in three years about 18,000 cords—or 2,304,000 cubic feet—of waterlogged wood would be deposited in the upper Kennebec.

      . United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), quoting from New Jersey v. New York, 283 U.S. 336, 342, 51 S.Ct. 478, 75 L.Ed. 1104 (1931).

      . Had Congress intended to make the exemption from section 15’s ban on log driving conditional upon prior promulgation of navigational rules it could clearly have chosen a more apparent means than the wording of the Act of 1900. Particularly is this so in view of the clear and unequivocal way in which Congress framed sections 10 and 13 of the Act of 1899. In those sections certain behavior is illegal unless prior permission is obtained. Furthermore, in the legislative history of the Act of 1900 an alternative phrasing was considered and rejected which would have created an exemption only after rules and regulations had in fact been promulgated for the particular river. It is also highly unlikely that Congress intended an entire set of rules and regulations, as distinguished from a permit as in sections 10 and 13, to be a condition precedent to legal behavior. And where a river like the upper Kennebec is concerned, on which, as found below, no significant navigation other than by log driving has ever taken place, there would appear to be little logic in requiring that regulations be issued for the purpose of resolving a nonexistent conflict between forms of navigation, before the exemption would be effective.

      . The government also contends that the language used in the Act of 1900, “floating loose timber and logs, or sack rafts, so called, of timber and logs” does not refer to the entire practice of log driving but only those aspects literally encompassed in the language used. But there is not the slightest reason to believe that Congress meant the statute to have such a cramped and unnatural reading. The terms set out above were obviously a way to describe the traditional log drive as a whole and were the very terms used in section 15 of the Rivers and Harbors Act of 1899. Moreover, the language used rather adequately described the Kennebec log drive as it is carried on today. “Moating of loose timber and logs” is the way logs are moved by defendants on those stretches of the Kennebec where the current is strong enough to carry the logs downstream, and “sack rafts ... of timber and logs” refers to the means used to move logs across the places lacking strong current. (For descriptions of sack rafts see The Mary, 123 F. 609, 611, 613 (S.D.Ala.1903) and The Athabasca, 45 F. 651, 653 (W.D.Mich., N.D.1890)). Therefore, we find that the traditional log drive, as carried out on the Kennebec, is encompassed by the terms used in 33 U.S.C. § 410.
      The government also makes arguments based upon the premise that the first paragraph of 33 U.S.C. § 410 which refers to “floating loose timber and logs, or sack rafts, so called, of timber and logs” is more limited in scope than the second paragraph which refers to “floating of loose timber and logs, and sack rafts (so called) of timber and logs and other methods of navigation on the streams and waterways, or any thereof, of the character, as to navigation, heretofore in this section one hereof described [first paragraph of this section].” [Emphasis added.] But since the second paragraph has to do with the authority of the Secretary of the Army to promulgate regulations, the reference to “other methods of navigation” is not meant as a description of additional aspects of the practice of log driving, but as a description of entirely different, modes of river navigation with which log driving can potentially conflict, and thus to which regulations resolving navigational conflicts would refer. We therefore find no basis in the statutory language, and also find no basis in the legislative history, or in logic, for the offered premise and reject the arguments based thereon.

      . There is no legal precedent on the precise point presented in this appeal. The only reported cases involving challenges to logging practices under the Rivers and Harbors Act of 1899 or its predecessor statutes did find that booms were subject to challenge as obstructions to navigation, United States v. Bellingham Bay Boom Co., 176 U.S. 211, 20 S.Ct. 343, 44 L.Ed. 437 (1900), United States v. Wishkah Boom Co., 136 F. 42 (9th Cir. 1905), but Bellingham was decided prior to passage of the Act of May 9, 1900 and Wishkah, although it presented a case where the Act of 1900 would appear to have been at least facially applicable, simply ignored that statute. In United States v. Martliinson, 58 F. 765 (D.S.C.1893), the court found that the provisions of the Rivers and Harbors Act of 1890 barring obstruction to the navigable capacity of rivers did not apply to the floating of logs or rafts of logs.

      . See H.R.Rep.No.731, 56 Cong., 1st Sess. (1900). For examples of the kinds of conflicts that had arisen between log driving and steamboats, see. e. g., The Mary, 123 F. 609 (S.D.Ala.1903), Hall v. Chisholm, 117 F. 807 (6th Cir. 1902), The Athabasca, 45 F. 651 (W.D.Mich., N.D.1890).

      . We therefore disagree with the view expressed by the Seventh Circuit in United States v. United States Steel Corp., 482 F.2d 439 (1973), to the effect that while Congress may have intended that the Refuse Act ban deposit of any matter of any kind, Congress thought that the Secretary of War would have no authority to deny a permit purely on non-navigational grounds. A fair reading of the Supreme Court’s pronouncements on this subject, particularly United States v. Pa. Indust. Chem. Corp., which was handed down after the U.S. Steel Corp. decision, can only lead to the conclusion that its study of the Rivers and Harbors Act of 1899 and its history convince the Court that the Congress was concerned with pollution ab initio. This view is supported by the wording of section 13, in that while the ban on dumping of material on the banks of waterways is illegal only if obstruction to navigation results, the ban on dumping of matter directly into the water. is not so limited. Furthermore, predecessor statutes had included in the list of particular materials barred from deposit materials like the “sawmill waste”, “ballast”, “steam-boat ashes”, “oysters and rubbish” referred to by Mr. Justice Douglas in United States v. Standard Oil Co., 384 U.S. 224, 229, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), and characterized by him as “pollutants”. Contemporary concern in the Congress over the hazard to the public welfare posed by water pollution can be discerned in II.R.Rep.No.89, 56 Cong., 1st Sess. (1900), in which the House Committee on Commerce proposed the creation of a scientific commission to investigate water pollution, saying in part, “It is one of the inalienable rights of the people to have the water for drinking, for watering stock, for manufacturing, agricultural, and domestic uses, come to them in its natural accustomed flow, free from pollution or sewage cast into it . . . . ”

      . H.R.Rep.No.731, 56 Cong., 1st Sess. (1900) at 3.

      . See 33 C.F.R. §§ 207.380, 207.360, 207.-780, 207.663 (1972).

      . In discussing the proviso in section 13 authorizing the issuance of permits the Supreme Court has said, “In exercising that authority the proviso requires the Secretary to rely on the judgment of the Chief of Engineers that anchorage and navigation will not be injured by such deposits. But even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary’s authority discretionary—i. e., it provides that the Secretary ‘may permit’ the deposit.” United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 662, 93 S.Ct. 1804, 1810, 36 L.Ed.2d 567 (1973).

      . We mean to intimate no view as to whether or not any such interpretation of the language of the statute can be justified, nor, if it can, whether defendants can take advantage of it.

      . United States v. Standard Oil Co., 384 U.S. 224, 225, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966).


source: Caselaw Access Project

author: WISDOM, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America ex rel. Mamdouh BARBOUR, Petitioner-Appellant, v. DISTRICT DIRECTOR OF the IMMIGRATION AND NATURALIZATION SERVICE, SAN ANTONIO, TEXAS, etc., Respondent-Appellee.
    No. 73-1411.
    United States Court of Appeals, Fifth Circuit.
    March 21, 1974.

      Jack Wasserman, Benjamin M. Parker, Washington, D. C., Ruben Monte-mayor, San Antonio, Tex., for petitioner-appellant.
    C. J. Calnan, Asst. U. S. Atty., William S. Sessions, U. S. Atty., San Antonio, Tex., Donald H. Feige, Atty., John L. Murphy, Chief, Government Regulations Section, Crim.Div., James P. Morris, Dept. of Justice, Washington, D. C., for respondent-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   WISDOM, Circuit Judge:

In this tangled case we review the denial of a petition for a writ of habeas corpus to an alien who was refused release on bail pending a final decision in deportation proceedings. A Special Inquiry Officer denied bail to the petitioner, Mamdouh Barbour, an alien, on the ground that he was a bad bail risk. On appeal the Board of Immigration Appeals did not rule on the question whether Barbour was a bad bail risk but, on information submitted by the State Department, denied bail on the ground that Barbour represented a threat to national security. Barbour then petitioned for a writ of habeas corpus in federal court. After reviewing in camera confidential information relating to national security, the district court stated that “for the record” Barbour was not a security risk, but was a bail risk. The court denied the petition for habeas corpus. We agree with the result: detention of this petitioner without bail is lawful.

Barbour is a citizen of Syria, a Major in the Syrian Army. On February 10, 1972, he left Syria, went to Lebanon, then to Turkey, and eventually entered Canada on February 19, 1972. In Canada he deposited approximately $115,000 in four different banks. There, Barbour applied for a non-immigrant visa and was granted permission to enter the United States. In support of his application for the- visa, Barbour submitted a fraudulent passport issued by the Imamate of Oman State to Yousef S. Risk, showing that he was a native of Lebanon and a citizen of Jordan. He crossed the border from Canada into the United States on March 4,1972.

Subsequent to Barbour’s entry into this country, the Syrian Government, through Interpol, informed United States’ authorities of Barbour’s true identity and also of an arrest warrant issued in Syria against him for escape abroad, violation of military instructions, and misappropriation and smuggling of two million Syrian pounds—the equivalent of approximately $450,000. The Immigration and Naturalization Service apprehended Barbour on May 24, 1972, in Arlington, Texas, and began deportation proceedings.

The Syrian Government contends that as vice-head of the finance and administrative department of his army unit Barbour embezzled the funds and, fearing that the theft would be discovered upon his imminent change of assignment, fled the country. Barbour disputes these contentions. He insists that he left Syria with no more than $131,000, most of it inherited from his father, the rest representing the proceeds from his property in Syria. He contends that $115,000 is now frozen by court order in Canadian banks at the instance of Syrian authorities and that he has spent almost all of the remainder. He also contests the Syrian version of the circumstances under which he fled the country. He maintains that he was imprisoned under barbarous conditions for 45 days beginning in 1971 for refusing to give information to a Soviet army officer. Although he was promoted from Captain to Major after this incident, allegedly he was given a dangerous assignment with SAIQA. SAIQA is the Syrian supported military arm of the Palestinian resistance and is said to have connections with world-wide terrorist organizations. Barbour asserts that he tried to resign from the army but that his resignation was not accepted; that he was never involved with SAIQA or in sympathy with that organization, and was assigned to it as a punishment. Finally, Barbour maintains that he is a member of the Druse sect that exists in Syria and Israel, and is persecuted in Syria; that rumors are being spread in Syria that he is pro-Israel and anti-Soviet; that his father was killed for his opposition to the Syrian Government; and that, because like his father he opposes the Government, he fears that if returned to Syria he will be executed for his political beliefs. The Immigration and Naturalization Service takes a skeptical attitude toward Barbour’s explanation, because he was promoted to Major after the episode with the Soviet officer and because he sought asylum only after he was arrested. Although the $115,000 in Canada is frozen, there is still $335,000 to be accounted for, assuming the correctness of the Syrian Government’s figures.

The procedural history of Barbour’s case since he was taken into custody has been a roller coaster ride of motions, denials, and appeals. He has applied for political asylum and sought to have deportation withheld, arguing that if deported to Syria he faces persecution. Twice the Office of Refugee and Immigration Affairs of the State Department has advised that a case for persecution has not been made. Twice a Special Inquiry Officer (now an Immigration Judge) has determined the persecution issue against Barbour and has ordered him deported. The Board of Immigration Appeals has entertained this issue once. According to the record before us, no “final order of deportation” within the meaning of Section 242(c) and (d) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1252(c) & (d), has yet been rendered. See 8 C.F.R. 242.20 (1973) and 8 C.F.R. 243.1 (1973).

Special Inquiry Officers have twice dealt with the issue raised in this ease —the legality of continuing Barbour in custody without bail. A custody hearing was held before a Special Inquiry Officer on June 6, 1972. At the close of the hearing the Officer ruled against permitting Barbour to be released on bail;

“I am going to order that the change in custody be denied at this time. The record shows the respondent has used different identities, fraudulent documents. He does not have any close relatives or property in the United States, although it was pointed out that the money that he has in banks might be held- in some way, and he would not leave his money, but then of course we do not know at this time how many other banks he might have money in in other countries and what the risk is, and I would hesitate today in setting what I consider to be an intelligent bond in the case for his release under bond. I wouldn’t know whether to make it a thousand dollars or a hundred thousand, and because of the indication that we will be able to proceed with a prompt hearing and at that time know more concerning all the matters in the case, I am going to order that the request for a change in status be denied.”

This custody determination was reconsidered and affirmed on October 5, 1972, by another Special Inquiry Officer, who stated: “[T]here appears to be no justifiable reason for releasing the' respondent or making a change in his custody status while the question of his deportability is pending before the Board of Immigration Appeals.”

Barbour appealed the October 5 determination to the Board of Immigration Appeals. In the argument before the Board on October 17, 1972, the issue was whether Barbour represented a bail risk. Counsel for the Immigration and Naturalization Service conceded at that time that Barbour did not represent a security risk. On October 27, 1972, while the case was under advisement, the Board received correspondence, including classified information, from the State Department recommending that Barbour not be set free on bail. On the basis of this new information, the Board held on November 24, 1972, that Barbour’s release from custody would endanger the national security of the United States. Barbour’s appeal was dismissed on this ground which, of course, he had no opportunity to contest and could not anticipate since the argument had centered on whether Barbour was a bail risk. The Board declined to rule on the bail risk issue, stating: “At best it is questionable whether this respondent is a good bail risk or not.”

Barbour petitioned for a writ of habeas corpus. The classified national security information on which the Board of Immigration Appeals had based its decision was forwarded to the district court. The district judge viewed the information in camera and found that those documents and the record failed to establish that Barbour represented a security risk. A review of the record as a whole, however, convinced the district court that the evidence upon which the Special Inquiry Officers based their decisions established that Barbour was not a good bail risk. The court considered the following factors in denying bail. (1) Barbour was in the country illegally. (2) He had deceived the American Consul in his application for a non-immigrant visa and had assumed a false name. (3) He had entered the United States surreptitiously and revealed himself as a person “likely to conceal himself within the society”. (4) In fact, he had concealed himself within the society. (5) He had no family or roots in the United States. (6) He had no employment record here. (7) He was charged with embezzling more than $450,000 from the Syrian Army, (8) desertion from the Syrian Army, and (9) smuggling money abroad. (10) A substantial amount of cash was unaccounted for which might be used to help Barbour abscond. On these findings the district court concluded that there was substantial evidence to support the Special Inquiry Officers’ determination. Accordingly the court denied the writ of habeas corpus.

If the Board had adopted the findings of the Special Inquiry Officers, this Court would have to agree that the evidence supports the holding that Barbour was a bail risk. But the Board pitched its decision on its conclusion that Barbour was a security risk. The district court’s holding, therefore, collides with the principle that the issue for judicial review of an agency’s action is the issue decided by the agency. S. E. C. v. Chenery, 1943, 332 U.S. 194, 196, 67 S.Ct. 1575, 1760, 91 L.Ed.1995. As this Court stated in N. L. R. B. v. Clark, 5 Cir. 1972, 468 F.2d 459, 467:

“It is well settled that the reasons actually advanced by an administrative agency are the only reasons properly considered by a court in determining the legality of the agency’s action.”

In reviewing the decision of the district court, however, we are not so restricted by its grounds of decision. See Jaffke v. Dunham, 1957, 352 U.S. 280, 281, 77 S.Ct. 307, 1 L.Ed.2d 314; Texaco, Inc. v. Holsinger, 10 Cir. 1964, 336 F.2d 230, 233, cert. denied, 379 U.S. 970, 85 S.Ct. 669, 13 L.Ed.2d 563. After viewing the information forwarded to this Court with regard to national security, we hold that the district court was wrong in its belief that the Board erred in finding that Barbour was a security risk. Thus we affirm the district court on the ground that Barbour represents a threat to the security of this country. We do not reach the bail risk question.

It is not altogether clear on what basis the district court found “for the record” that Barbour did not present a threat to national security. It does seem from our view of the evidence, however, that in reaching that conclusion the court must have used an overly severe standard of review. The Immigration and Naturalization Act of 1952 vests wide discretion in the Attorney General and his delegates to determine whether or not to release an alien on bail pending a final decision in deportation proceedings. Section 242(a) of the Act provides in pertinent part:

“Pending a determination of deport-ability in the case of any alien . , such alien may, upon warrant of the Attorney General, be arrested and taken into custody. Any such alien taken into custody may in the discretion of the Attorney General, and pending such final determination of deportability, (1) be continued in custody; or (2) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (3) be released on conditional parole.”

8 U.S.C.A. § 1252(a). (Emphasis supplied.) The wording in Section 242 (a) is virtually identical to that in Section 23 of the Internal Security Act of 1950. In reviewing the legislative history of the earlier Act, the Supreme Court said: “[T]he language of the reports is emphatic in explaining Congress’ intention to make the Attorney General’s exercise of discretion presumptively correct and unassailable except for abuse. . . . [The discretion of the Attorney General] can only be overridden where it is clearly shown it ‘was without reasonable foundation’ ”. Carlson v. Landon, 1952, 342 U.S. 524, 540-541, 72 S.Ct. 525, 534, 96 L.Ed. 547, quoting United States ex rel. Potash v. District Director, 2 Cir. 1948, 169 F.2d 747, 751. Courts that have reviewed decisions denying aliens bail since the 1952 Act have, apparently unanimously, transferred the presumption to cases under that Act. See, e. g., United States ex rel. Belfrage v. Shaughnessy, 2 Cir. 212 F.2d 128 at 129; Application of Maringolo, S.D.N.Y.1969, 303 F.Supp. 1389, 1392. Under Section 242(a), therefore, an alien has a heavy burden to establish that the Attorney General abused his discretion. See United States ex rel. Nukk v. District Director, 2 Cir. 1953, 205 F.2d 242, 244. The test established in the Carlson case is, we think, essentially that typically used in habeas corpus review of administrative action—whether there is any basis in fact for the agency’s decision. See Developments in the Law—Habeas Corpus, 83 Harv.L.Rev. 1038, 1238-63 (1970). Here the evidence more than adequately supports the Board’s finding that Barbour is a security risk.

There is no question of the Attorney General’s discretion under Section 242(a) of the Act to continue an alien in custody during deportation proceedings upon a properly-made determination that the release of an alien would be a danger to the national security of the United States. Carlson v. Landon, supra. Barbour contests, however, the manner in which that determination was reached by the Board. Barbour argued in his petition for habeas corpus, and he argues before this Court, that he was denied due process of law when the security risk information was presented ex parte to the Board without his having an opportunity to refute' it. He contends also that the Board had no authority to consider evidence not presented to the Special Inquiry Officer; nor did it have authority to consider confidential information in connection with bail. He argues that the Board could not decide the issue of Barbour’s being a national security risk when the issue at the hearing, as conceded by the Immigration and Naturalization Service, was solely whether Barbour was a bail risk.

We reject these contentions. Discretionary relief—and release on bail is a form of discretionary relief—may be denied on the basis of confidential in-

formation, the disclosure of which would be prejudicial to the public interest, safety, or security, if the use of such information is sanctioned by regulations. Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242; United States ex rel. Dolenz v. Shaughnessy, 2 Cir. 1953, 206 F.2d 392, 394-395. Regulations specifically provide that “[t]he determination of the special inquiry officer as to custody status or bond may be based upon any information which is available to the special inquiry officer, or which is presented to him by the alien or the Service”. 8 C.F.R. 242.2(b) (1973). Regulations also direct the Board of Immigration Appeals to “exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case.” 8 C.F.R. 3.1(d) (1973). The Board therefore, may base its decision on any information available to it.

Affirmed.

      . We note that in further proceedings initiated by Barbour during the pendency of this appeal the Board has reconsidered the bail risk issue. On October 2, 1973, based on an augmented record, the Board declared that “in light of all the evidence adduced in the bond and [persecution] proceedings, and for the reasons given by the District Court in its decision on the earlier request for release on bond, we find that the respondent is also a bail risk”.

      . We note in passing, however, that one who is a danger to national security may for that reason be a bad bail risk.

      . The district court apparently used the standard enunciated in section 106 of the Immigration and Nationality Act, that “the Attorney General’s findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive”. 8 U.S.C. § 1105a (a) (4). This standard is explicitly applied to “judicial review of all final orders of deportation” and to certain determinations concerning nationality. There is no evidence from either the text of the Section or the legislative history, H.R.Rep.No.1086, 87 Cong.1st Sess., 1961, U.S.Code Cong. & Admin.News pp. 2950, 2966-2977, that Congress intended to overrule the more stringent standard established by the Supreme Court in Carlson v. Landon, 1952, 342 U.S. 524, 540-541, 72 S.Ct. 525, 96 L.Ed. 547, for bail cases. See infra.

      . The Attorney General is granted broad discretion to delegate his duties and powers under the Act. See 8 U.S.C. § 1103(a). The Attorney General has delegated virtually all his powers under Section 242(a) to the Board of Immigration Appeals. 8 C.F.R. 3.1(d) (1973). See infra.


author: AINSWORTH, Circuit Judge:

text:
    NAT HARRISON ASSOCIATES, INC., Plaintiff-Appellee, v. GULF STATES UTILITIES COMPANY, Defendant-Appellant.
    No. 73-1013.
    United States Court of Appeals, Fifth Circuit.
    March 25, 1974.
    Rehearing and Rehearing En Banc Denied May 1, 1974.

      C. W. Phillips, Baton Rouge, La., for defendant-appellant.
    James E. Glass, John Robert Terry, Miami, Fla., Carlos G. Spaht, Baton Rouge, La., for plaintiff-appellee.
    Before WISDOM and AINSWORTH, Circuit Judges and RUBIN, District Judge.
   AINSWORTH, Circuit Judge:

This appeal by Gulf States Utilities Company arises from a diversity suit by Nat Harrison Associates, Inc., against appellant, seeking damages of $1,200,000 resulting from claims for acceleration and breach of a construction contract and for retainage held under the contract.

The district court granted partial summary judgment, with respect to the retainage, which judgment has been satisfied and is not before us in this appeal. Trial before a jury on the acceleration and breach of contract claims resulted in a verdict of $225,000 for Harrison. Judgment was entered for that amount with interest at 5 per cent per annum from the date of acceptance of the contract. Attorneys’ fees, stipulated by the parties at 15 per cent, were awarded on both the retainage recovered and on the jury verdict. Gulf States appeals the judgment entered on the jury verdict, the award of interest, and both awards of attorneys’ fees. We affirm in part and reverse in part and remand.

The pertinent facts are these. On December 18, 1964, Harrison and Gulf States entered into a written contract under which Harrison agreed to construct approximately 158 miles of 500 KV single-circuit, three-phase transmission line in Louisiana. Under the contract and specifications, Gulf States was obligated to obtain and furnish to Harrison both a cleared right of way in several 10-mile sections and all of the basic materials necessary above the ground for the construction of the transmission line. The contract specified time sequences within which various sections of the line were to be constructed, as well as the starting points and termination points of construction. The contract allowed extensions of time for delays attributable to the “elements, war, riot, strikes and other unavoidable casualties” and for an “equitable extension of time” in the event Gulf States failed to meet the delivery schedule for materials and right of way. “No additional compensation of any nature,” however, was to be paid as a result of Gulf States’ delays in furnishing right of way and materials. Provision was made for liquidated damages of $500 per day for failure to finish the work by the completion date. The contract also provided that Harrison give Gulf States immediate written notice of extra costs caused by any instruction of Gulf States and that written approval of Gulf States be obtained for such cost or charge prior to incurring it. Completion of the contract was scheduled for February 15, 1967. The foundation work under the contract was subcontracted to American Piling Company, Inc., and the wirestringing operation was subcontracted to Jackson-Morgan.

In January 1966, Gulf States invited Harrison to submit a bid -to construct an “underbuild” on a portion of the transmission line. This portion of the line was known as line 342. An underbuild is an additional tower arm on which, in this instance, a 138 KV line was to be strung under the 500 KV line. Harrison submitted several price proposals based on different delivery dates for materials to be furnished by Gulf States. These bids ranged from $454,140 to $567,675. After further negotiation, a new price proposal was submitted and an agreement reached. On February 28, 1966, Gulf States issued to Harrison a revision order for construction of the under-build at a price of $383,035. Construction was to begin about March 1, 1966, and be completed by October 1,1966.

Line 342, containing the underbuild, was completed , by October 15, 1966. Construction of the entire line was completed by approximately March 15, 1967, and Gulf States accepted the work under the contract as of July 19,1967.

On December 16, 1969, Harrison brought this action in the United States District Court for the Middle District of Louisiana. Count I of the complaint was the claim for retainage, Count II sought damages resulting from acceleration of the contract, and Count III claimed damages for breach of Gulf States’ duties under the contract to furnish the right of way and materials so that Harrison could perform its work timely and in sequence. After partial summary judgment was granted on the retainage claim, Gulf States was denied summary judgment on Harrison’s remaining contentions, and a trial, split on the issues of liability and damages, was held before a jury.

At the trial Harrison offered evidence to show that the alleged breach and acceleration of the contract took place largely in 1966 and pertained principally to the construction of line 342. The testimony indicated that beginning in March 1966 Harrison was unable to perform its work on schedule and in sequence due to Gulf States’ failure to provide the necessary right of way and materials, and due to inclement weather, strikes, and other conditions. During 1966, Harrison, as a result of delays due to inclement weather, strikes, and other conditions, requested extensions of time totaling 46 work days. These requests were apparently ignored or refused by Gulf States. In April 1966, moreover, Gulf States, through its engineers, issued a letter setting up a schedule for completion of line 342 by October 15, 1966. The engineers indicated that the completion date was not to be changed for any reason, including time lost due to inclement weather. In addition, Harrison was directed to take immediate steps to provide additional manpower and equipment in order to maintain the October 15, 1966, completion date. Further testimony indicated that Gulf States' late deliveries of materials and failure to provide right of way on schedule persisted through the year, both in the construction of line 342 and on other portions of the transmission line.

When the case was first submitted to the jury on the liability question, a verdict was returned in favor of Harrison. The claim was then tried before the jury on the issue of damages, and the jury assessed damages against Gulf States in the amount of $225,000, for which judgment was entered.

On appeal, Gulf States raises several contentions. First, it seeks reversal of the judgment below on the ground that the provision in the contract requiring Harrison to give Gulf States immediate written notice of “extra costs” caused by any instruction of Gulf States and to first obtain written approval for such costs acts as a bar to Harrison’s recovery of the costs of acceleration. Alternatively, Gulf States argues that a new trial should be granted because of the district court’s failure to instruct the jury that prior notice was a prerequisite to recovery. Second, Gulf States contends that Harrison released its acceleration and breach of contract claims by executing a letter dated April 24, 1967, purporting to settle all outstanding claims for a stated cash consideration. Alternatively, Gulf States assigns error to the trial court’s failure to instruct on estoppel with respect to this letter.

Gulf States’ third contention is that the jury lacked a sufficient basis on which to assess damages. Again, Gulf States urges in the alternative that a new trial should be granted. Its alternative contention rests on the trial court’s failure to give certain requested instructions pertaining to damages and on the court’s admission in evidence of a certain exhibit relating to the damage issue. Finally, Gulf States challenges the trial court’s awards of attorneys’ fees on the retainage and of interest on the judgment from the date of Gulf States’ acceptance of the contract.

I.

A, Notice Requirement

Gulf States’ initial contention is that Harrison’s suit is barred as a matter of law because of the latter’s failure to comply with the notice provision of the contract. That provision provides in relevant part:

No alterations shall be made in the work, nor shall any charge be made by Contractor for extra work, without the prior written approval of such duly authorized representative [of Gulf States]. If Contractor claims that any instructions from the Company involve extra costs under the Contract, or will delay the completion date of the contract work, Contractor shall give Company immediate written notice of such and shall first obtain written approval by Company’s duly authorized representative of such additional charge and new completion date prior to commencing such work.

The general rule in Louisiana favors the validity of contract provisions requiring notice for extra work:

[N]o claims for extra work or materials shall be allowed unless made in writing * * * and that when the contract so provides, and there is no written order for such extras, no recovery can be had for them in the absence of a waiver of that stipulation. (Citations omitted.)

Welch-Eckman Const. Co. v. Vancouver Plywood Co., La.App., 3 Cir., 213 So.2d 134, 135 (1968), quoting Meaux v. Southern Constr. Corp., La.App., 3 Cir., 159 So.2d 156, 161 (1963); see French Market Homestead Ass’n v. Usner, 170 La. 783, 129 So. 202, 208 (1930). During the course of the contract, Harrison submitted more than two hundred requests for extra payments. The first notice of the amounts here in issue, however, was by letter from Harrison dated July 21, 1967, after completion of the work and after acceptance by Gulf States. The dispute at the trial centered on whether the costs allegedly incurred by Harrison were “extra costs” within the meaning of this notice provision. The jury was instructed on the assertions of both sides with respect to this clause.

The obvious purpose of notice provisions such as the one at issue here is the protection of the owner against mistaken or fraudulent charges in the work under the contract. See 6 A. Corbin, Contracts § 1295 (1962). These clauses in construction contracts make the written order a condition precedent to an enforceable right to payment for extra work. See 3A id. § 756 (1960).

There is a point, however, at which changes in the contract are to be considered beyond the scope of the contract and inconsistent with the “changes” section. J. D. Hedin Construction Company v. United States, 1965, 347 F.2d 235, 257, 171 Ct.Cl. 70. “[A] determination of the permissive degree of change can only be reached by considering the totality of the change and this requires recourse to its magnitude as well as its quality.” Saddler v. United States, 1961, 287 F.2d 411, 413, 152 Ct.Cl. 557. Damages can be recovered without fulfillment of the written notice requirement where the changes are outside the scope of the contract and amount to a breach. Id. Since the evidence supports the jury’s finding that there was a breach of contract, we are unable to hold, as a matter of law, that Harrison was required to give prior notice of the additional costs it claims here or that it is not entitled to damages for fundamental alteration of the contract.

Moreover, a written notice provision in a contract may be waived:

Even where the contract had a provision to the effect that the owner shall not be liable for any extra work unless the owner has given written authorization for that work, the consistent actions of the two parties may be found to constitute a “waiver” of this provision, and recovery can be allowed the contractor, notwithstanding that no written authorization was given by the owner to perform such additional work.

Pamper Corporation v. Town of Marksville, La.App., 3 Cir., 208 So.2d 715 (1968). Several situations may form the basis for waiver: (1) when the extra work was necessary and had not been foreseen; (2) when the changes were of such magnitude that they could not be supposed to have been made without the knowledge of the owner; (3) when the owner was aware of the additional work and made no objection to it; and (4) when there was a subsequent verbal agreement authorizing the work. Roff v. Southern Construction Corporation, La.App., 3 Cir., 163 So.2d 112, 115-116 (1964).

In a letter of April 23, 1966, during the period in which the breach occurred, Gulf States, through its engineers, indicated to Harrison that no extension of time for delay would be permitted and directed it to provide additional manpower and equipment to maintain the original work schedule. Then, at a meeting on August 11, 1966, Harrison advised Gulf States that additional costs were being incurred because of Gulf States’ delays. It is apparent, therefore, that there was waiver of the notice requirement by Gulf States because it was aware of the additional work and made no objection to it. See Wellman v. Smith, 114 La. 228, 38 So. 151 (1905); Groner v. Cavender, 16 La.App. 565, 133 So. 825 (2 Cir. 1931).

We also reject Gulf States’ assertion that a new trial should be granted because the district court did not instruct that prior notice was a prerequisite to recovery. Legal agreements have the effect of law as between the parties, and the courts are bound to give effect to contracts according to the intent of the parties. LSA-Civil Code, Article 1945; Welch-Eckman Const. Co. v. Vancouver Plywood Co., La.App., 3 Cir., 213 So.2d 134, 135 (1968). In the law of contracts (or conventional obligations), however, a distinction is properly drawn between the interpretation and the construction of written instruments. The process of construction entails the determination of the legal operation of the language of a contract, and is peculiarly a function of the court. Interpretation, on the other hand, commonly refers to the search for the meaning of the words used and is a factual matter within the province of the jury. See 3 A. Corbin, Contracts §§ 534, 554 (1960); 4 S. Williston, Contracts §§ 602, 616 (Jaeger ed. 1961); Williams v. Humble Oil & Refining Company, 5 Cir., 1970, 432 F.2d 165, 179, cert. denied, 402 U.S. 934, 91 S.Ct. 1526, 28 L.Ed.2d 868 1971). The dispute before us is clearly one of interpretation of the contract. The question of the applicability of the notice provision was properly for jury determination, and the trial court, therefore, did not commit error in failing to instruct the jury that prior notice was a prerequisite to recovery.

B. The Letter of April 24, 1967

Construction of the transmission line was essentially complete on April 1, 1967. In compliance with the contract, Harrison, at a meeting on April 24, 1967, submitted its remaining claims for “extra work” requested by Gulf States during the performance of the contract. These specific extras were itemized on a written schedule. In return for additional compensation of $89,882.76, Harrison then executed a letter of April 24, 1967 from Gulf States, which provided in part:

In accordance with our conversations and discussions held in the offices in Baton Rouge on April 24, 1967, the attached is a summary of the agreed upon resolution of all outstanding claims for additional compensation, over and above the unit prices provided by the Contract which have been or may be presented for extra work of any nature, performed prior to April 1, 1967, by Nat Harrison Associates, Inc., and its subcontractors

Gulf States contends that execution of this letter by Harrison constituted a release of all claims, including those in dispute here. Harrison contends that the payment was for “extra work” under the contract and was confined to those claims itemized in the letter and did not cover the claim for damages for acceleration and breach of contract. The court below submitted the issue to the jury with instructions that the jury determine the meaning of the parties with respect to the agreement.

As was the case with the written notice provision, the question is one of the interpretation of the meaning of the language used in the agreement and was properly submitted to the jury. See page 584 supra. We cannot say as a matter of law that the letter was a release of all outstanding and future claims of Harrison against Gulf States.

Alternatively with respect to the release, Gulf States claims that the lower court erred in failing to give an instruction on estoppel, to the effect that Harrison was under a legal obligation to mention specifically this claim and bring it to the attention of Gulf States at the meeting of April 24,1967.

In order for the doctrine of estoppel to apply, there must be an affirmative showing of representation, reliance, and detrimental change of position by the person invoking the doctrine. See, e. g., Shirey v. Campbell, La.App., 2 Cir., 151 So.2d 557 (1963); Olin Gas Transmission Corp. v. Harrison, La. App., 1 Cir., 132 So.2d 721 (1961). The evidence does not support Gulf States’ contention that Harrison represented that its claim for acceleration or for breach of conduct was included in the claims presented at the April 1967 meeting. The district court’s failure to instruct on estoppel was not error.

II.

Gulf States contends that the evidence and formulae introduced at trial to prove damages provided no appropriate basis for a damage award to Harrison.

In its complaint, Harrison alleged damages of $1,200,000 resulting from the acceleration and breach of contract. At trial, Harrison offered three alternative measures of damages. Harrison’s first alternative resulted from the district court’s order, in the course of the discovery proceedings,, that Harrison submit a complete itemized account of the claim:

It is further ordered that plaintiff present—prepare and present to defendant a complete—total and complete itemized account of their claim. This itemization will be prepared in the following fashion:
It will state sentence by sentence each individual item claimed in damages, together with the explanation of why it is due and how the figure is arrived at. I don’t want a narrative type statement; I want it sentence by sentence, one, two, three, four, so that each sentence may be answered by the defendant individually.

A second order of the trial court again required itemization and, as a result, Harrison submitted a table, set out in the margin, showing the relationship between labor costs and income both before and after June 1, 1966, the date on which damages allegedly began to occur. In basing its computation of damages on this table, Harrison assumed that the contract here was essentially a labor contract. The claimed percentage loss of labor efficiency after June 1, 1966, 31.08 per cent, was then multiplied by the total wages of Harrison and its two subcontractors from June 1, 1966, to the end of the job, $1,509,970.62, to arrive at a figure of $469,298.87. In addition to this labor loss of efficiency, Harrison claimed lost payroll taxes, insurance, and labor benefits of 14.25 per cent of direct labor, or $66,875.09. Equipment costs were computed at 30 per cent of direct labor with additives, or the sum of $160,852.19. Small “tools and supplies costs were claimed at 5 per cent of direct labor with additives, or $26,808.70. Total direct costs claimed thus amounted to $723,834.85. Fifteen per cent of this total direct cost was allocated for overhead, an indirect cost. This amounted to $108,575.25, for a total cost of $832,410.08. Finally, Harrison added 10 per cent of total cost $83,241.01, as its profit and thus arrived at a total claim of $915,651.09.

Over the objections of Gulf States, Harrison at the trial introduced the above data in evidence in connection with the testimony of a certified public accountant. Harrison also presented at the trial several large boxes containing its payroll records, which had been examined by the accountant in determining his estimates of Harrison’s damages. The court instructed the jury that they might examine the records, but they did not do so.

As another method of computing damages, Harrison’s accountant presented a calculation based on the average daily payroll figure (that is, direct daily labor cost) of Harrison and its two subcontractors for the period from June 1, 1966, through October 19, 1966, the latter being the approximate date on which line 342 was completed. This average daily payroll figure, $7,662.81, was multiplied by 42, allegedly the number of days for which valid extensions of time for performance of the contract were ignored or refused. To that figure, $321,838.02, percentages were added to cover payroll taxes, equipment, small tools and supplies, etc., in the same manner as the first method. The total claim computed by this method was $627,884.-55.

Harrison’s third method of computing damages involved a comparison of the highest, $567,675, of Harrison’s original five bids on the line 342 underbuild with a revised bid of $361,321, made by Harrison after further negotiation. The revised bid was made on the basis of a more relaxed delivery and completion schedule. Harrison computed its “base” damages under this method at the difference between its highest bid and the revised bid, $206,354, plus a profit factor of 10 per cent, for a total of $226,989.40.

In connection with the testimony of a certified public accountant, Gulf States also introduced evidence on damages, in the form of a comparison of the efficiency of the Harrison operation prior to and after June 1, 1966. Gulf States’ evidence was much the same as Harrison’s except that Gulf States included in its comparison the cost of materials purchased by Harrison. Gulf States’ calculations indicated that during the period after June 1, 1966, Harrison’s operation was 2.03 per cent more efficient than during the prior period and that actual material and labor costs after June 1, 1966, were $68,861.40 less than for the prior period.

The jury was instructed that damages must be reasonable and may not be speculative; but that damages need not be calculated to a mathematical certainty. The jury was also instructed that Harrison could recover only on its losses and not any losses suffered by the subcontractors.

Ordinarily, damages due for breach of contract are those that may reasonably be considered as arising from the natural and proximate consequences of the breach. Article 1934 of the Louisiana Civil Code provides that in actions for breach of contract the measure of damages is the amount of loss sustained and the profit deprived.

Actual damages must be proven; they cannot be merely speculative or conjectural. Brown v. Producers’ Oil Co., 134 La. 672, 64 So. 674, 677 (1914); State v. Bell, 153 La. 823, 96 So. 669, 671 (1923). While the breaching party should not escape liability because of difficulty in finding a perfect measure of damages, the evidence must furnish data for a reasonably accurate estimate of the amount of damages. State v. Bell, supra-, Manuel v. Texas Gas Transmission Corporation, La.App., 3 Cir., 153 So.2d 157 (1963); 11 S. Williston, Contracts § 1345 (Jaeger ed. 1968). It must appear reasonably evident that the amount allowed rests upon a certain basis. See Brown v. Producers’ Oil Co., supra.

The amount and measure of damages must be determined in relation to the particular contract in issue and the circumstances surrounding its breach. The question of the certainty of proof of damages becomes a matter for decision in each individual case. See Jolley Elevator Co. v. Schwegmann Bros. Giant Super Mkts., La.App., 4 Cir., 230 So.2d 640, 643 (1970). In the case before us, Harrison’s three alternative methods of computing the same damages resulted in the jury’s receiving the following estimates of Harrison’s injury: $915,651.09, $627,884.55, $226,989.40. Gulf States, on the other hand, contends that Harrison was actually more efficient during the period of the breach than it was during the running of the contract up to the beginning of the breach. The jury, as we have noted, awarded Gulf States $225,000.

In order for it to recover, it is incumbent upon Harrison in an action such as this to show that it was put to actual additional expense as a result of Gulf States’ acceleration and breach of contract. Since Harrison must prove that increased costs resulted, Harrison’s contemporaneous records kept in the course of the contract’s performance are clearly the best evidence available to show actual additional costs. Yet the record offers very little evidence to show what acceleration in fact occurred after June 1, 1966, due to the actions of Gulf States. No significant showing was made at trial that Harrison in fact had any particular amount of overtime caused by any action of Gulf States; nor is there specific evidence to establish that during any particular period of time Harrison employed more men or equipment than would have been employed absent the breach and acceleration.

Harrison’s proof relies only on generalizations about its overall operations and not on any loss caused by a particular action of Gulf States. There is in the record no testimony to the effect that such specific costs either could not be shown or are not available, and it does not appear to us that the nature of the particular losses make it impossible or highly impractical to determine them with a reasonable degree of accuracy.

Furthermore, damages computed by any one of the three formulae would permit Harrison to recover for losses that may have been incurred by the two subcontractors involved in the work done under the contract. The computations include both costs incurred by the subcontractors and revenues attributable to them. Nothing in the record indicates that Harrison may recover its subcontractors’ alleged increased costs due to lack of efficiency. While it is true that the district judge instructed the jury that Harrison could recover only its loss and not any loss of its subcontractors, this instruction does not remedy the very real defect in Harrison’s evidence, its failure to distinguish between Harrison’s own losses and losses suffered by the subcontractors.

We do not imply that in considering the measure of damages absolute accuracy is a precondition to Harrison’s recovery. But the burden of proving damages is not carried merely by general assertions, without foundations, that acceleration and actual losses did occur and were due to the conduct of Gulf States. See International Paper Co. v. United States, 5 Cir., 1955, 227 F.2d 201, 205. Under the circumstances presented, the interests of justice are best served by setting aside the award of damages and remanding this case to the district court for a new trial on the issue of the amount of damages to be recovered by Harrison for the acceleration and breach of contract by Gulf States. See Kent v. Flickinger, 10 Cir., 1972, 453 F.2d 955.

III.

In view of our decision with respect to the jury’s award of damages, we express no opinion on Gulf States’ challenge to the propriety of the trial court’s award of interest on the judgment from the date of acceptance of the contract. We do, however, reach the question whether the trial court properly awarded attorneys’ fees on the retainage for which partial summary judgment was granted.

Section 18. of the contract between Gulf States and Harrison provides:

In case it should ever become necessary for either party hereto to employ an attorney at law to enforce any of the obligations assumed hereunder by the opposite party herein, and should recovery be had by such complaining party against the opposite party, then such party against whom such recovery is made agrees to pay to the other a reasonable sum as attorney’s fees, which sum shall not be less than ten per cent (10%), nor more than twenty per cent (20%), of the amount of any such recovery (excluding court costs, however).

At the trial counsel for both parties stipulated that attorneys’ fees, if due, be fixed at 15 per cent. The district court awarded attorneys’ fees to Harrison both on the judgment for acceleration and breach and on the retainage judgment.

It has long been the general rule that attorneys’ fees may be recovered as an item of damages where specifically authorized by statute or by contract. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967); Washington Aluminum Co. v. Pittman Construction Co., 5 Cir., 1967, 383 F.2d 798, 805; Chauvin v. La Hitte, 229 La. 94, 85 So.2d 43, 45 (1956). The district court’s finding that attorneys’ fees were allowable under the contract on the judgment for retainage is not clearly erroneous. See Washington Aluminum Co. v. Pittman Construction Co., supra.

In sum, we hold that the judgment of the district court, insofar as the liability of Gulf States for acceleration and breach is concerned, is affirmed; the judgment as to attorneys’ fees on the retainage is affirmed; the portion of the judgment awarding damages to Harrison is reversed, and the case is remanded to the district court for a new trial on this issue alone.

Affirmed in part, reversed in part and remanded.

      .

      We note that Harrison arrived at the percentage loss of efficiency, 81.08 per cent, by dividing the dollar loss of labor efficiency, .1052, by the direct labor cost per $1.00 of job progress prior to June 1, 1966, .3385.

      . The cost of these materials was said to be $1,022,530.63. Of this, $796,110.92 was allocated for materials costs prior to June 1, 1966 while the remainder, $226,419.71, was allocated to the period from June 1, 1966, to the end of the contract.

      . A major defect in Harrison’s first method of computing damages, the comparison of labor efficiency prior to and during the breach, with additives for other elements, is that it lacks proof of causation. As we have noted, Harrison can recover only for costs flowing from Gulf States’ acceleration and breach of contract. Harrison, however, by use of its proposed formula, charges Gulf States with responsibility for all of its alleged loss of labor efficiency during the period in which there was breach and acceleration of the contract. Efficiency of labor, though, can be affected by many factors. There is a failure to show that no substantial part of Harrison’s added cost of performance was chargeable to nonactionable causes rather than to the conduct of Gulf States.
      Harrison’s second method of computing damages, the multiplication of the daily pdyroll figure by 42, plus additives, is also inadequate. First, it is not at all settled that Harrison was entitled to extensions of time for the days requested or that Harrison was, in fact, unable to work on those days. Second, assuming Harrison did not work on those days, we fail to comprehend how the multiplication of an average daily payroll figure by the number of days Harrison’s operation was idle can be used to arrive with any reasonable certainty at Harrison’s damages due to the acceleration and breach by Gulf States. It was not shown, for example, that the refusal of 42 days in extensions resulted in the equivalent of an extra 42 days in performance costs.
      Our initial objection to Harrison’s third method of computing damages, the difference between their highest bid for the underbuild and the revised bid, is that its basis is a total cost theory in a situation calling for specific costs. In addition, this third method also runs into the problem of causation. Although Harrison argues that this method properly computes damages because its highest bid was based on a compacted delivery schedule and its revised bid related to • an extended delivery schedule, it was never shown that the compacted delivery schedule bore any relation to the schedule that was followed as a result of Gulf States’ breach and acceleration or that additional costs attributable to the differences in the delivery schedules were similar.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    SPENCER PRESS, INC., Plaintiff-Appellant, v. Donald ALEXANDER, etc., Defendant-Appellee.
    No. 73-1399.
    United States Court of Appeals, First Circuit.
    Argued Jan. 10, 1974.
    Decided Feb. 5, 1974.

      Robert B. Smith, Boston, Mass., with whom Galvin, Smith & Nordlinger, Boston, Mass., were on brief, for plaintiff-appellant.
    Daniel F. Ross, Atty., Tax Div., Dept. of Justice, with whom Scott P. Cramp-ton, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., William Brown, Asst. U. S. Atty., Meyer Rothwacks, and Crombie J. D. Garrett, Attys., Tax Div., Dept. of Justice, were on brief, for defendant-appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Appellant Spencer Press, Inc. (Spencer) brought an action against the Commissioner of Internal Revenue, seeking a preliminary injunction to prohibit, the Commissioner from collecting an “addition to tax” provided by the Internal Revenue Code of 1954, 26 U.S.C. § 6651, for late filing of an income tax return. Spencer requested the district court to .determine that, on the merits, no addition to tax was owed; alternatively it requested the court to order the Commissioner to issue a notice of deficiency (90 day notice) so that Spencer would have an opportunity to present the matter to the Tax Court prior to collection of the tax. 26 U.S.C. §§ 6212, 6213.

The district court, on December 7, 1973, dismissed the complaint “with leave to file a complaint with proper jurisdictional allegation, within 30 days.” An amended complaint was filed on December 10, 1973, and was dismissed without hearing by the district court on December 11 “in view of the fact that this Court after a hearing on December 7, 1973 denied an application for a preliminary injunction based on the same allegations of fact . . . ”

Spencer immediately appealed and requested an injunction pending appeal. Because the Internal Revenue Service proposed to levy on Spencer’s property on December 21, we issued an injunction pending appeal and restrained the collection of the tax until the appeal had been determined. The case was advanced on the docket and oral argument heard on January 10, 1974.

The appeal like the original petition actually raises two issues or groups of issues. The first pertain to whether or not under existing statutes plaintiff is entitled to a pre-levy judicial determination of its liability for the additional tax. We conclude, as did apparently the district court, that he is not. The second pertain to whether, under expanded concepts of due process, see Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), a statutory scheme which authorizes or directs seizure of plaintiff’s property without affording any opportunity for a prior hearing is constitutional. As to this issue, neither a single-judge district court nor ourselves have jurisdiction. 28 U.S.C. § 2282. We accordingly affirm the order of the district court insofar as. it was based upon its interpretation of the statutes of the United States, cf. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), but remand to the district court with instructions to request the convening of a three-judge district court should the plaintiff within ten days file an amended complaint requesting such a court and framing appropriate constitutional issues.

According to Spencer’s complaint its difficulties began when, in 1963, it hired a former officer of the Internal Revenue Service to act as its tax accountant, and turned over to him the task of preparing and filing tax returns. Although everything was apparently being handled in due course, Spencer says it was rudely surprised when the Internal Revenue Service informed it that no returns had been filed for the tax years 1967 through 1970. Spencer asserts that it promptly .hired a new accountant, reconstructed its records, and filed returns for those years, paying in full all of the tax and interest due. The IRS is apparently satisfied that the taxes have been paid in full.

The IRS has claimed the statutory penalty for late filing of returns. Spencer resisted the claimed “addition to tax”, believing that case law supported its position that a taxpayer acting in good faith and with reasonable care is not liable for an addition to tax when defrauded by its accountant. See, e. g., Fisk v. CIR, 203 F.2d 358 (6th Cir. 1953); Giesen v. United States, 369 F.Supp. 33 (W.D.Wis.1973). Spencer wrote the IRS to request a waiver of the addition to tax, but the Service announced its intention to levy on Spencer’s property unless Spencer paid the tax allegedly due.

Spencer then filed the instant suit, requesting that the Commissioner be enjoined from collecting the tax until Spencer has had an opportunity for hearing on its claims that it should be excused. The complaint further contends, perhaps anticipating the Commissioner’s defense, that any actions taken to collect the tax without such a hearing would be in violation of due process. See Fuentes v. Shevin, supra.

The Commissioner responded by drawing attention to 26 U.S.C. § 7421, which precludes district courts from enjoining the collection of a “tax”. He then argued that, although there is an exception to § 7421 for cases in which the IRS was required to, but did not, issue a 90 day notice, no such notice was required. The Commissioner relied upon § 6659, which provides that additions to tax such as the one in this case are not the “deficiencies” for which a 90 day notice is required. We agree with the Commissioner’s interpretation. Appellant’s reliance upon cases decided prior to the change in § 6659 effected in 1960 by P.L. 86-470, 74 Stat. 132, is entirely misplaced.

What is left therefore is the question of the constitutionality of §§ 6659, 6213, 6212, and 7421 to the extent that they, together or singly, operate to deprive a taxpayer of an opportunity to contest, prior to payment, a penalty assertedly due to the government. However, 28 U.S.C. § 2282 provides that an injunction “restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution . . . shall not be granted . unless the application therefor is heard and determined by a district court of three judges . . .” We do not fault the district court for not initially recognizing that the complaint raised issues requiring three-judge resolution. Appellant did not ask for such a court, and while it raised in general terms its Fuentes due process claim, it did not apparently recognize that the government was bound by law to act as it has. It is not up to the courts to analyze a plaintiff’s case and guide him into the correct courtroom. Cf. Aaron v. Cooper, 261 F.2d 97, 105 (8th Cir. 1958). However, it is now apparent that if appellant is to secure a determination of its constitutional claim, a three-judge court is required. Although Spencer did not seek to enjoin a specific section of the Code, its claim inevitably involved a request that an injunction issue directing an officer of the United States to ignore an Act of Congress on the grounds of its unconstitutionality. Cf. cases cited and discussed in Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37-50 (1964).

In extraordinary circumstances we might have jurisdiction to continue our injunction in effect until organization of the three-judge court, cf. Hicks v. Pleasure House, Inc., 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971). While we are not inclined to do so here, we rely upon the government’s good faith not to take further action to collect the additional tax until sufficient time has elapsed for plaintiff, acting with dispatch, to file an amended complaint, request a three-judge court, and make a timely request to that court for such temporary or preliminary relief as the court may be able or willing to give. The ease is remanded to the same district judge.

Since appellant must bear the heaviest responsibility for the time that has been wasted going in the wrong direction, we award costs of this appeal to the government.

Judgment vacated. Remanded to the district court with instructions to call for convening of a three-judge court should the plaintiff within ten days file an amended complaint requesting such a court and raising appropriately framed issues, the action otherwise to be dismissed with prejudice. Costs to appellee.

      . The constitutionality or applicability of § 7421 in another context is now before the Supreme Court. Walters v. “Americans United”, Inc., 155 U.S.App.D.C. 284, 477 F.2d 1169, cert. granted 412 U.S. 927, 93 S.Ct. 2752, 37 L.Ed.2d 154 (1973) ; Bob Jones University v. Connally, 472 F.2d 903 (4th Cir.), cert. granted, 414 U.S. 817, 94 S.Ct. 116, 38 L.Ed.2d 49 (Oct. 9, 1973). Cf. Commonwealth Development Ass’n v. United States, 365 F.Supp. 792 (M.D.Pa.1973).

      . The legislative history of § 6659 precludes any interpretation of it that would provide a 90 day notice. The section “provides a general rule that the additions to tax for the late filing of income . . . tax returns . . . are to be assessed and collected without the issuance of a 90 day letter.” S.Rep. No.86-1098, 86th Cong., 2d Sess. (1960), 1960 U.S.Code Cong. & Admin.News 2025.

      . Cases such as Grandquist v. Hackleman, 264 F.2d 9 (9th Cir. 1959) and Strawberry Hill Press, Inc. v. Scanlon, 273 F.2d 306 (2d Cir. 1959), were expressly mentioned in the Senate committee report and apparently were the impetus for the statutory revision. 1960 U.S.Code Cong. & Admin.News 2025-26.