author: JAMESON, District Judge:

text:
    Jack MOSES, Puyallup Tribe, Plaintiffs-Appellants, v. George KINNEAR, as director of the Department of Revenue, State of Washington, Defendant-Appellee.
    Nos. 71-2605, 71-2672.
    United States Court of Appeals, Ninth Circuit.
    Nov. 2, 1973.
    As Amended Jan. 9, 1974.

      John Sennhauser (argued), of Seattle Legal Service Center, Seattle, Wash., Arthur Knodel, Tacoma, Wash., for plaintiffs-appellants.
    Timothy R. Malone, Senior Asst. Atty. Gen. (argued), Olympia, Wash., Slade Gorton, Atty. Gen., James A. Furber, Sp. Asst. Atty. Gen., Tacoma, Wash., for defendant-appellee.
    Before BARNES and CHOY, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

This is a consolidated appeal from a district court order staying proceedings in two cases “pending exhaustion of state remedies by plaintiffs”.

These actions were commenced by plaintiff-appellant Jack Moses, an enrolled member of the Puyallup Tribe, and Corwin King, an enrolled member of the Samish Indian Tribe, against defendant-appellee, the Director of the Washington Department of Revenue, seeking declaratory and injunctive relief against the imposition of excise taxes by the State of Washington upon the sale, possession and use of cigarettes and other tobacco products sold by Moses on Indian trust land outside the exterior boundaries of the Puyallup Reservation and by King on land within the exterior boundaries of the Reservation. The district court granted leave to appellant Puyallup Tribe to intervene as a party plaintiff in both actions.

On August 6, 1971 the district court entered an order applicable to both cases assuming, but not deciding, that it had jurisdiction and staying all proceedings pending exhaustion of state remedies. Jack Moses and Puyallup Tribe appealed from the stay order. The issues on this appeal are (1) whether the stay order of the district court is appealable; and (2) if so, whether the stay order was proper.

Following oral argument on appeal an order was entered deferring a ruling in these cases until the Supreme Court decided three cases in which certiorari had been granted or probable jurisdiction noted, i. e., Mescalero Apache Tribe v. Jones et al., MeClanahan v. Arizona State Tax Commission, and Tonasket v. The State of Washington.

Mescalero Apache Tribe and McClana-han were decided on March 27, 1973. On April 24, 1973 a per curiam was entered in Tonasket reading as follows:

“The judgment of the Supreme Court of Washington is vacated, and the case is remanded to that Court for reconsideration in light of §§ 6 and 7 of c. 157, 1972 Session Laws of the State of Washington, and this Court’s decision in McClanahan v. Arizona State Tax Comm’n, No. 71-834 (March 27, 1973).” 411 U.S. 451, 93 S.Ct. 1941, 36 L.Ed.2d 385.

Counsel were invited to comment on the effect of these decisions of the Supreme Court and whether a decision on this appeal should be deferred until the Supreme Court of Washington reconsiders its decision in Tonasket. In response appellee states that “The issues of state law, for the resolution of which the U. S. Supreme Court remanded the Tonasket case to the state supreme court, may well have a bearing on the merits of the present controversy” and that a full resolution on the merits cannot be obtained until Tonasket is finally determined. Appellee urges that the State of Washington be permitted to proceed with the action in the Pierce County Superior Court; that this court no longer defer a decision; and that the order of the district court be affirmed.

Appellants argue that the reconsideration of Tonasket will not necessarily have a bearing on these cases and that the district court will be able to render a decision based on “present federal law”, including the decision in McClan-ahan. In the alternative, appellants urge that the decision on this appeal be deferred further until the Washington Supreme Court has reconsidered Tonasket, so that this court will be in a better position “to instruct the District Court as to what issues should be considered if and when the case is remanded”.

We have concluded to remand now to the district court for further consideration in the light of this opinion.

Appealability of Stay Order

Appellee contends that the stay order is not an appealable order under 28 U.S.C. § 1291, which provides, in pertinent part: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * It is argued that the stay order is not a “final decision”.

The rule here applicable was summarized in 9 Moore’s Federal Practice, para. 110.20 [4.-2] at 251 (2d ed. 1973) as follows:

“If there is no action pending in a state court and the district court stays the action before it and directs the parties to go to the state court to obtain a ruling as to what the state law is, the stay is appealable as a final order under 28 USC § 1291. If in-junctive relief is sought in the district court action, such a stay is also ap-pealable as a denial of an injunction under 28 USC § 1292(a)(1).”

We conclude that the district court’s order staying proceedings “pending exhaustion of state remedies by plaintiffs” is an appealable order under 28 U.S.C. §§ 1291 and 1292(a)(1).

Subject Matter Jurisdiction

Assuming, without deciding, that it had jurisdiction, the district court stated that “upon the record now presented it is clear the Court should not interfere with exercise of state tax power where adequate remedies are available to plaintiffs in the courts of this state,” citing 28 U.S.C. § 1341, which provides:

“The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”

At first glance it would appear that § 1341 bars this action. There are exceptions to § 1341, however, and one of them is applicable here.

The Supreme Court has said that “§ 1341 does not act as a restriction upon suits by the United States to protect itself and its instrumentalities from unconstitutional state exactions.” Department of Employment v. United States, 385 U.S. 355, 358, 87 S.Ct. 464, 467, 17 L.Ed.2d 414 (1966). This rule, commonly known as the federal instrumentality doctrine, has its clearest application in cases where the United States is both a plaintiff and “has in fact a proprietary interest”. United States v. Arlington County, Commonwealth of Virginia, 326 F.2d 929, 931 (4 Cir. 1964). However, the instrumentality doctrine has also been held applicable where the Government sues on behalf of a private party in order to protect and enforce its policies with respect to those in whom the United States has a special interest, though perhaps not a proprietary one. The doctrine also applies where the United States is not a party plaintiff, if the suit could have been brought by the United States and is in fact brought by parties who could properly be co-plaintiffs with the United States. Agua Caliente Band of Mission Ind. v. County of Riverside, 442 F.2d 1184, 1186 (9 Cir. 1971), cert, denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972).

There can be no doubt that the United States has a special interest in its ward Indians, with respect to which the Government “has charged itself with moral obligations of the highest responsibility and trust”. Seminole Nation v. United States, 316 U.S. 286, 297, 62 S. Ct. 1049, 1054, 86 L.Ed. 1480 (1942). This “special interest” has manifested itself in the form of a federal policy to protect Indians and Indian property from state taxation. This was recognized most recently in McClanahan, supra at 170-171 of 411 U.S., at 1261 of 93 S.Ct., where the Court quoted with approval “a leading text on Indian problems” as summarizing “the relevant law: ‘State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply. It follows that Indians and Indian property on an Indian reservation are not subject to State taxation except by virtue of express authority conferred upon the State by act of Congress.’ U. S. Dept, of the Interior, Federal Indian Law 845 (1958) * * *"

28 U.S.C. § 1362 provides:

“1362. Indian tribes. — The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.”

While § 1362 does not confer jurisdiction with respect to the claims of Moses and the statutory basis of jurisdiction is not expressly alleged, it seems clear from the allegations of the complaint that the district court has jurisdiction under 28 U.S.C. § 1331.

We conclude that the district court has subject matter jurisdiction over appellants’ claims, under 28 U.S.C. §§ 1331 and 1362, and that this jurisdiction is not defeated by 28 U.S.C. § 1341, since it falls within the instrumentality doctrine’s exception to the jurisdictional bar of § 1341.

Having concluded that the district court has jurisdiction, we turn to the other rather complex factual and procedural issues raised by the respective parties and which should be resolved initially by the district court in the light of comments in this opinion.

Impact of Tonasket, McClanahan, and Mescolero

In view of the «remand of Tonasket to the Supreme Court of Washington for further consideration, the district court may properly stay further proceedings in these cases pending the resolution of any state law issues in Tonasket. It seems clear, and the parties apparently agree, that the resolution of the state law issues in Tonasket may have some bearing on the determination of- these cases on the merits.

The Supreme Court of Washington was also directed to reconsider Tonasket in the light of McClanahan, where the Court held that the State of Arizona has no jurisdiction to impose a tax on the income of Navajo Indians residing on the Navajo Reservation, whose income is wholly derived from reservation sources. In limiting the effect of its decision the Court said in part:

“It may be helpful to begin our discussion of the law applicable to this complex area with a brief statement of what this case does not involve. We are not here dealing with Indians who have left or never inhabited reservations set aside for their exclusive use or who do not possess the usual accoutrements of tribal self-government. * * * Nor * * * is this a case where the State seeks to reach activity undertaken by reservation Indians on nonreservation lands. * * * Rather, this case involves the narrow question whether the State may tax a reservation Indian for income earned exclusively on the reservation.” 411 U.S. at 167-168, 93 S.Ct. at 1260.

In Mescolero, the Court clearly recognized the distinction between income from activities on and off Indian reservations, saying:

“absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan v. Arizona State Tax Comm’n, supra, lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent.
“But tribal activities conducted outside the reservation present different considerations. ‘State authority over Indians is yet more extensive over activities . . . not on any reservation.’ Organized Village of Kake [Organized Village of Kake v. Egan], supra [369 U.S. 60], at 75 [82 S.Ct. 562, 7 L.Ed.2d 573]. Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally be held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” 411 U.S. at 148-149, 93 S.Ct. at 1270.

Neither appellant Moses nor plaintiff King comes within the precise category held exempt from state taxation in Mc-Clanahan. Appellant Moses is a member of the Puyallup Tribe, but the land on which he was selling cigarettes and other tobacco products was not within the exterior boundaries of the Puyal-lup Indian Reservation. King is not a member of the Puyallup Tribe but was selling cigarettes within the exterior boundaries of the Reservation. Moreover, while McClanahan would prevent the imposition of a state excise tax on the sale of cigarettes by a member of the Tribe to Indians on the reservation, it does not reach the question of imposition of such a tax on sales to non-Indians. The district court will of course consider the effect of McClanahan and Mescalero under the facts in these cases in the light of the final determination in To-nasket.

Abstention for Determination of Other State Issues

Appellee argues that in addition to any issues of state law involved in Tonasket, there is a “second set of issues” of state law critical to a determination of these cases, i. e., the application of RCW 37.12.-010 and the meaning of the phrases “Indian territory * * * country and lands” and “established Indian reservation” as used in that statute.

Under RCW 37.12.010 the S'.,ate of Washington assumed criminal and civil jurisdiction “over Indians and Indian territory, reservations, country and lands” within the state. However, except for eight categories of jurisdiction, not including taxation, it was provided that this assumption of jurisdiction did “not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States”.

Abstention, of course, is proper where state action is challenged in federal court as being contrary to federal law, and there are questions of state law that may be dispositive of the case; that is, where the action could be held illegal as a matter of state law, thereby obviating the need for a decision on the federal issues. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See also Wright, Federal Courts § 52 (2d Ed. 1970).

In this case a decision on the federal issues can be avoided only by a holding as a matter of state law that the lands in question are within “an established Indian reservation”, with respect to which Washington has not assumed taxing jurisdiction.

The Supreme Court of Washington, however, has twice held that “the Puyal-lup Indian Reservation has ceased to exist”. Department of Game v. Puyallup Tribe, Inc., 70 Wash.2d 245, 422 P.2d 754, 759 (1967), aff’d on other grounds, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) ; State v. Satiacum, 80 Wash.2d 492, 495 P.2d 1035, 1036 (1972). Under these decisions the Washington Supreme Court has already in effect held that the Puyallup Reservation is not “an established Indian reservation” within the meaning of RCW 37.12.010. The trust land on which Moses sold cigarettes obviously is not on an “established Indian reservation”, since it is not within the exterior boundaries of any Indian reservation.

On October 15, 1973 the Supreme Court, in a per curiam opinion, granted certiorari in Satiacum and vacated the judgment of the Supreme Court of Washington, stating that it appeared that the petitioner might have been fishing at a location outside the boundaries of what is, or was, the Puyallup Indian Reservation when the alleged offenses were committed, and if so, the Supreme Court of Washington had unnecessarily addressed and determined “the federal question whether the Puyallup Reservation ‘has ceased to exist’ ”. 414 U.S. 1, 94 S.Ct. 209, 38 L.Ed.2d 1.

On January 29, 1973 the United States District Court for the Western District of Washington, in United States of America v. The State of Washington, an action involving the enforcement of fishing laws, held that the Puyallup Reservation has ceased to exist. That case is now pending on appeal in this court.

The question of whether the Puyallup Reservation has been abolished or terminated is of course a federal question to be decided on .the basis of federal treaties, statutes and administrative actions. The present status of the Reservation may well prove critical in resolving the issues in these cases. While we find no basis for application of the abstention doctrine for determination of state issues, we do recognize that the district court may deem it advisable to defer further proceedings pending final determination of Satiacum and State of Washington as well as Tonasket.

We do not hold that the taxing jurisdiction necessarily depends upon a holding that the Puyallup Reservation has ceased to exist. If it is determined that the Reservation is still in existence, it will be necessary for the district court to determine in the light of the final determination of Tonasket (and other applicable law) whether the State of Washington may impose its cigarette tax laws on cigarettes sold (1) by Moses on trust land outside the exterior boundaries of the Puyallup Reservation; and (2) by King or a Puyallup Indian within the exterior boundaries of the Puyallup Reservation.

Three-Judge Court

King filed a request for a three-judge court, with a supporting brief. While the question of the propriety of a three-judge court was not raised on appeal, it may become necessary for the district court to consider this question under the complaints filed by Moses and King.

The jurisdiction of a three-judge court is governed by 28 U.S.C. § 2281. The jurisdictional requirements under this section are that “a state statute or administrative order must be challenged, a state officer must be a party defendant, injunctive relief must be sought, and it must be claimed that the statute or order is contrary to the Constitution of the United States.” Wright, Federal Courts § 50 (2d Ed. 1970).

A three-judge court is required if a state statute is. challenged on the ground that it is contrary to some provision of the United States Constitution other than .the Supremacy Clause. With respect to the claims of the Puyallup Tribe, the application of the Washington cigarette tax statutes is challenged only on the ground that these statutes violate the Supremacy Clause. Moses and King, however, challenge the statutes as violative, not only of the Supremacy Clause, but also of the Commerce Clause and the Fourteenth Amendment.

Conclusion

In summary, we conclude that the two cases should be remanded to the district court for further consideration in the light of this opinion, and we recognize the propriety of the district court’s staying further proceedings pending the final determination of Tonasket, Satiacum and State of Washington. The final determination in Satiacum may of course be dis-positive of State of Washington.

Remanded for further proceedings consistent with this opinion.

      . When the complaint was filed it was assumed that the land on which Moses made his sales was within the exterior boundaries of the Puyallup Reservation. It was later determined that this land was outside the boundaries of the Reservation. It is, however, trust land under the control of the Bureau of Indian Affairs.

      . No appeal was taken by plaintiff King.

      . We recognized that these cases would not be dispositive of all of the issues raised in the instant cases, but concluded that the decisions might be helpful to this court in resolving this appeal and to the district court in the event of a remand.
      In addition, following the district court’s order of August 6, 1971, a declaratory judgment action was instituted by the State of Washington in the Superior Court for Pierce County against the appellants and others to test the question of whether cigarettes and other tobacco products can be sold within the exterior boundaries of the Puyallup Reservation without complying with the revenue laws of the State of Washington. That case was removed to federal court and a motion to remand to state court was filed. At this court’s request and by agreement of counsel, no further action has been taken in that case pending determination of this appeal.

      . Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114; McCalanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129.

      . At the time the district court entered its stay order on August 6, 1971 there was no action in state court. The state court action was filed on October 29, 1971.

      . See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 at n. 2, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) ; Druker v. Sullivan, 458 F.2d 1272, 1274 at n. 3 (1 Cir. 1972).

      . For example, when the United States is seeking to enjoin state taxation of realty which it holds in trust for the use of Indians or personalty which is traceable to property given the Indians by the Government. United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532 (1903) ; United States v. Pearson, 231 F. 270 (D.S.D.1916).

      . see Arlington County, supra, and United states v. sullivan, 270 F.supp. 236 (D.Conn. 1967), which were suits by the United gtates on behalf of servicemen to protect the Government’s statutory policies against state taxation with respect to members of the Armed Forces.

      . It is clear from the legislative history of § 1362 that one of the purposes of the legislation was to permit the Tribes to initiate litigation involving issues which could have been instituted by the United states as trustee. The Report of the House Judiciary Committee (H.R.Rep.No.2040, 89th Cong., 2d gess. (1966)) on g. 1356 which became the Act of October 10, 1966 reads in pertinent part:
      “The enactment of this bill would provide for U.g. district court jurisdiction in those cases where the U.g. attorney declines to bring an action and the tribe elects to bring the action. * * * It can therefore be seen that the bill provides the means whereby the tribes are assured of the same judicial determination whether the action is brought in their behalf by the Government or by their own attorneys. There is a large body of Federal law which states the relationship, obligations and duties which exist between the United gtates and the Indian tribes. The Federal forum is therefore appropriate for litigation involving such issues.”

      . see Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, 656 (9 Cir. 1966).

      . It was not ascertained until after appeal had been taken that this land was outside the exterior boundaries of the Puyallup Reservation. Appellant Moses then filed a motion to correct his brief “with reference to statements made in the Brief that Jack Moses was operating his business on trust land within the exterior boundaries of the Puyallup Indian Reservation.”

      . It may be noted that the brief for the United States as amicus curiae filed by the Solicitor General in Tonasket contended that the taxes of the State of Washington at issue in that case were invalid insofar as they applied to sales to Indians residing on the Reservation. Appellant contended that the sales to non-Indians were also exempt. The Solicitor General expressed no view on that issue, although he did point out certain considerations which might be of assistance to the Court.

      . The eight categories of jurisdiction assumed by Washington with respect to all Indians and Indian territory within the state include: compulsory school attendance; public assistance ; domestic relations ; mental illness ; juvenile delinquency ; adoption proceedings ; dependent children; and operation of motor vehicles upon the public streets, alleys, roads, and highways.

      . This case involved the rights of members of two Indian tribes to fish “at all usual and accustomed grounds” off the reservations. The Supreme Court of the United States did not reach the holding of the Washington court that the Puyallup Reservation had ceased to exist.

      . The Court remanded for resolution by the state courts of the factual issue of whether the alleged offenses took place outside the boundaries of what is, or was, the Reservation.

      . See Satiacum v. Washington, supra, and Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973), where a state court in California held that the Klamath River Reservation in 1892 “for all practical purposes almost immediately lost its identity”. The Court of Appeals affirmed, and the Supreme Court of California denied a hearing. The Court reversed, stating that its “conclusion that the 1892 Act did not terminate the Kla-math River Reservation is reinforced by repeated recognition of the reservation status of the land after 1892 by the Department of the Interior and by Congress”. 412 U.S. at 505, 93 S.Ct. at 2258.
      The Associate Solicitor for Indian Affairs, Office of the Solicitor, U.S. Department of the Interior, in an opinion dated March 26, 1971 with respect to the “Status of the Puyallup Indian Reservation in the State of Washington”, concluded that “both the reservation and the Puyallup Tribe still exist as legal entities”.

      . Although King is not a party to this appeal, appellee admits in its brief that the inter-venor’s complaint of the Puyallup Tribe “clearly appears to raise the issue of the applicability of the state cigarette tax laws to locations inside * * * [the] exterior boundaries [of the Puyallup Reservation]”.

      . Swift & Co. v. Wickham, 3S2 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965) held that three judges are not required if the claim is that the state statute conflicts with a federal statute that, by virtue of the Supremacy Clause, is controlling.


source: Caselaw Access Project

author: LUMBARD, Circuit Judge: KAUFMAN, Chief Judge

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. Jose Emiliano VELAZQUEZ, Defendant-Appellee.
    No. 170, Docket 73-1869.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 16, 1973.
    Decided Dec. 28, 1973.

      George E. Wilson, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., John W. Nields, Jr., and S. Andrew Schaffer, Asst. U. S. Attys., on the brief), for appellant.
    Michael D. Ratner, New York City (Richard A. Levy and Eisner, Levy & Steel, New York City, on the brief), for defendant-appellee.
    Before KAUFMAN, Chief Judge, and LUMBARD and TIMBERS, Circuit Judges.
   LUMBARD, Circuit Judge:

This is an appeal by the government under 18 U.S.C. § 3731 (as amended) from an order of the Southern District (Pierce, J.) dismissing an indictment which charged Jose Emiliano Velazquez with failure to submit to an armed forces physical examination (count I) and with failure to report for and submit to induction (count II), both in violation of 50 U.S.C. App. § 462(a).

The indictment in the case was filed July 25, 1972, and on August 8, 1972, Velazquez pleaded not guilty. Over the following months he filed fourteen voluminous motions for dismissal, extensive discovery, and other forms of pretrial relief. The government filed brief affidavits in opposition to most of these motions. Trial had been tentatively set for December 4, 1972.

However no trial was held, nor any pretrial hearing. Instead, after several months’ delay, and without hearing counsel for either side, Judge Pierce dismissed the indictment on April 24, 1973, on the basis of one of Velazquez’ motions. In doing so he relied solely on the motion papers and presumably, although not explicitly, on the government's affidavit in opposition.

Velazquez’ successful motion was made under Rule 12, F.R.Cr.P., on the grounds that he had a valid defense to count I of the indictment. He asserted that he had not received adequate notice of his duty to report for a physical examination, and that therefore he had never been under an obligation to submit to it.

Judge Pierce agreed with this argument, and extended it to count II of the indictment as well. In his memorandum opinion of April 30, 1973, in support of his dismissal order, Judge Pierce considered that under Rule 12 the court was entitled to pass upon the alleged defense to the indictment on the grounds of inadequate notice, inasmuch as such a defense, if raised at trial, would be passed upon in the first instance by the trial judge. He therefore considered those portions of Velazquez’ Selective Service record which Velazquez had obtained on pretrial discovery and which had been included as part of the motion papers.

These revealed that on October 17, 1971, Velazquez’ local board in New York mailed him a notice to report for and submit to a pre-induction physical examination (SSS Form 223), the examination to be held on November 2, 1971. Due to a typographical error, the notice was misaddressed and was returned undelivered to the board by the post office. A second Form 223 was sent on October 27, 1971, for the same November 2nd examination date, and to the correct address. But as Velazquez had moved, evidently without notifying his local board of the fact, it too was returned undelivered. The board subsequently obtained Velazquez’ new address and on January 5, 1972, sent him notice (Form Letter #8) that he was under a continuing obligation to report for and submit to a physical examination. The letter informed him also that he was to appear for the examination at the Whitehall Street Armed Forces Entrance and Examination Station in Manhattan at 7:00 a. m. on January 20, 1972, a date later changed to January 21st. There is no dispute that Velazquez actually received this letter notice.

The motion papers further revealed that on January 21st Velazquez appeared as directed at the Whitehall Street station for his examination. However he refused to undergo the examination and refused to cooperate with Selective Service personnel, and he continued this refusal in spite of efforts by his local board to obtain the reasons for his failure to take the physical examination. Thereafter, on June 1, 1972, he was sent an order to report for and submit to induction because of his prior delinquency, the reporting date given as July 6, 1972. He again appeared at the Whitehall Street station on the required date, but he continued his refusal to cooperate.

Judge Pierce in his memorandum noted that Form Letter # 8 contained none of the procedural safeguards and information about the rights of registrants which are printed on Form 223. Relying on the fact that 32 C.F.R. § 1628.-16(a) (1971) specified the use of Form 223, and that the Selective Service apparently deemed notice of these rights to be of sufficient importance to be included on the required form, he held that Form Letter # 8 did not provide adequate notice of an obligation to report, and hence that no duty to report arose upon its receipt. He concluded that, absent the duty to report, even though Velazquez had reported as ordered, there was no violation of 50 U.S.C. App. § 462(a) for failure to submit to the examination, since such a violation is premised on avoidance of the obligation with prior knowledge of the conse-quenees. He accordingly dismissed the indictment as to count I.

Judge Pierce then went on to dismiss the indictment as to count II. He noted that a local board’s authority to order a registrant to report for and submit to induction rested on 32 C.F.R. § 1631.-6(a) (1972), which provides:

That notwithstanding Part 1628 or any provision of these regulations, when a registrant in whatever classification has refused or otherwise failed to comply with an order of his local board to report for and submit to an Armed Forces examination, he may be selected and ordered to report for induction even though he has not been found acceptable for service in the Armed Forces ....

It followed, Judge Pierce concluded, that “since the defendant was under no legal duty to report for a physical examination, he cannot be said to have ‘refused or otherwise failed to comply with an order of his local board to report for and submit to an Armed Forces examination.’ ”

The government seeks to appeal Judge Pierce’s dismissal of the indictment in respect to both counts. It relies for authority to appeal on 18 U.S.C. § 3731 (as amended) and contends that appeal is not barred in this case by the constitutional protection against double jeopardy, which is now the sole bar to government appeals from dismissals in criminal cases. On the merits it contends that receipt of Form Letter # 8 provides adequate notice of a Selective Service obligation to report for and submit to a physical examination. It also urges that mere mailing of the form gives rise to the obligation (see fn. 2).

In opposition Velazquez contends, on the jurisdictional point, that althoügh Judge Pierce styled his order a dismissal of the indictment, and although it was based solely on motion papers, it was nonetheless equivalent to an acquittal on the merits because the court had gone beyond the face of the indictment to consider “competent evidence” (the court’s term) contained in his Selective Service record. He therefore claims that an appeal would permit facts “peculiar to the defendant” — specifically receipt of Form Letter # 8 in place of SSS Form 223 — to be reconsidered by a second tribunal, contrary to the provisions of § 3731. He argues further that an instance of double jeopardy would be the more clearly made out because of the hybrid nature of Selective Service cases, since they are at once traditionál criminal proceedings and also proceedings for the review of administrative action which place in the hands of the judge issues of fact not usually left to his determination in ordinary criminal trials.

Velazquez also contends that even if an appeal is allowed, he should nonetheless prevail on the merits because Form Letter # 8 does not provide adequate notice of legal obligations the neglect of which may incur severe criminal and administrative sanctions.

I.

We hold that in this case an appeal by the government does lie under § 3731. We conclude that Velazquez was not placed in jeopardy by the determination of the trial court when it based the dismissal of the indictment against him solely on motion papers submitted prior to trial, before either the selection or waiver of a jury and without any opportunity for counsel on either side to be heard.

The Supreme Court has recently cautioned that the question of assessing whether jeopardy attaches is not to be decided by any mechanical test. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L.Ed.2d 608 (1970). Accordingly, it is not wholly dispositive of the claim raised by Velazquez to state that since the jury was neither waived nor empaneled, jeopardy could not have attached, although this gives rise to a strong presumption. United States v. Pecora, 484 F.2d 1289 (3rd Cir., 1973). Nor is it satisfactory to rely, as has been done in non-jury cases, simply on the fact that no evidentiary hearing was held by the trial court in disposing of the motion. See Newman v. United States, 133 U.S.App.D.C. 271, 410 F.2d 259, cert, den., 396 U.S. 868, 90 S.Ct. 132, 24 L.Ed.2d 121 (1969). The critical question is whether the government’s action in prosecuting Velazquez, in both its administrative and judicial phases, reached the point where the government’s power to retrace its steps is checked by countervailing interests of the individual protected by the double jeopardy clause of the fifth amendment. United States v. Jorn, supra, at 480, of 400 U.S., 91 S.Ct. 547; Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 93 L.Ed. 974 (1949); United States v. Brown, 481 F.2d 1035, at 1040-1041 (8th Cir., 1973).

The present law of double jeopardy precludes retrial in instances when, regardless of the label, the trial court has ruled in favor of the defendant on facts going to the merits of the case if these facts were adduced at trial (United States v. Sisson, supra); if they were presented at an evidentiary hearing (United States v. Southern R. Co., 485 F.2d 309, at 312 (4th Cir., 1973)); or if they were stipulated by the parties (United States v. Brewster, 408 U.S. 501, 506, 92 S.Ct. 2531, 33 L. Ed.2d 507 (1972); United States v. Sisson, supra, at 285 of 399 U.S., 90 S.Ct. 2117; but see fn. 6, infra).

Retrial is permitted, however, when the trial court ruled in the defendant’s favor on the allegations in the indictment (United States v. Brewster, supra) ; on facts contained in the government’s bill of particulars (United States v. Boston & Maine R. Co., 380 U.S. 157, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965)); or on any procedural defect which would manifestly require reversal on appeal if conviction resulted (Illinois v. Somerville, supra). Retrial is permitted in these situations even though the trial itself may have completed its course.

The underlying thrust of the protection against double jeopardy is thus not to limit the number of times a defendant may be summoned into court on a single offense. Under present law this may be done repeatedly. It is rather to limit to one the number of times that a defendant may be required to submit proof of his innocence to challenge or acceptance by the other side. This expresses the root function of the trial as a proceeding where litigants are to be heard before a neutral tribunal, where they appear and argue as adversaries and where their case is to be subjected to public scrutiny and is open to rebuttal. It is multiple trials in this sense which the double jeopardy clause is designed to prevent.

The district court’s granting of Velazquez’ motion presented a different situation. There was no trial. There was no evidentiary hearing. There was, in fact, no introduction of evidence as commonly understood in our adversarial system. There was no stipulation of facts. Rather, the court went to the motion papers of the defendant, which included copies of entries in his Selective Service record, and without giving either side an opportunity to be heard, and without even. having the defendant appear in open court, concluded as a matter of law that the defendant had been deprived of due process because of inadequate notice provided by Form Letter # 8.

The only way in which an appeal of this determination could place Velazquez in double jeopardy would be to claim that jeopardy attached in the trial court’s reaching beyond the face of the indictment to “[a] showing of eviden-tiary facts outside of the indictment, which facts would constitute a defense on the merits at trial.” United States v. Brewster, supra, at 506, of 408 U.S. at 2534 of 92 S.Ct.

There was, however, no such showing. It might have been argued that there has been such a showing had the facts for which the court reached been tested in the forge of open court, as the defendant’s sincerity had been in Sisson, or had the facts at least been accepted by the government without opposition. But this was not the case.

Reliance on facts is not in itself dis-positive of the issue. As we stated earlier, retrial is permitted, and consequently an appeal under § 3731 is also permitted, when dismissal of an indictment is based on facts alleged in the indictment. United States v. Brewster, supra, at 506-507, 92 S.Ct. 2531; see also United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956); United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955). But it is also permitted when dismissal is based on facts revealed in other pretrial stages.

In United States v. Boston & Maine R. Co., supra, for example, an appeal was allowed under the old § 3731 when the trial judge had gone beyond the face of the indictment, which he considered as charging a valid offense in law, to reach the government’s bill of particulars, on the basis of which he concluded that no offense was chárged after all. As a consequence he had dismissed the indictment. The Supreme Court held on review that jeopardy did not attach in that situation.

In the more recent case of United States v. Martin Linen Supply Co., 485 F.2d 1143 (5th Cir., 1973), which involved an appeal under the newly amended § 3731, the Fifth Circuit similarly allowed an appeal where the trial court’s dismissal of the indictment had been made after “the government [had] disclosed the nature of its case in . extensive pre-trial procedures” but had not yet put its case to test in any “ ‘hearing’ of the evidence” prior to trial, much less at trial itself. Again it was held that jeopardy did not attach.

The issue, then, is not whether the court has relied on facts outside the indictment, nor even on whether the trial judge may have considered such facts as “undisputable,” as Judge Pierce did here. Since facts are necessarily assumed as uncontroverted for the purposes of a dismissal made at this or any stage, the issue is how these facts have been treated. Consideration of such facts has not been thought to place a defendant in jeopardy when he has not ventured them before the court in the presence of his adversary. See United States v. Covington, 395 U.S. 57, 89 S. Ct. 1559, 23 L.Ed.2d 94 (1969); also United States v. Sisson, supra, fn. 19 at 290-291 and fn. 56 at 302-303 of 399 U. S., 90 S.Ct. 2117.

As Senator Bacon remarked during the passage of the original Criminal Appeals Act, “The words ‘being in jeopardy’ are entirely a technical phrase” and do “not relate to the fact that a man is in danger as soon as an indictment is preferred against him.” 41 Cong.Ree. 2191. The Constitution does not protect a defendant from being placed in danger as often as the state may wish, so long as he is put to his proof only once. Just as he would not have been put to his proof on facts alleged in the indictment, so he was not on facts made available to the trial court solely through pre-trial discovery and which the court and the parties have treated no differently than factual allegations in the indictment itself or which might have been contained in a bill of particulars. To conclude that a trial judge may forever bar proper prosecution of a criminal defendant after a dismissal at this stage would be to permit the trial judge to arrogate to himself the power to decide a case on the merits without ever having the defendant confronted with the evidence in open court.

Consequently we hold this court has jurisdiction to review the dismissal of the indictment.

II.

On the merits we find the defendant’s contentions unpersuasive. By the district court's assumptions there was no dispute that Velazquez received notice of the location, time, and date of his physical examination. It was also undisputed that he did report as ordered, but then refused to submit to the examination. Count I of the indictment did not charge him with failure to report for the physical, but only with failure to submit to it. His contention, accepted by Judge Pierce, is that since the duty to report was vitiated by inadequate notice of the consequences of failing to report and of certain procedural rights of registrants, then even though he did report he was yet under no duty to proceed further and cooperate with the Selective Service.

This argument might be more persuasive if Velazquez claimed in what way he had been prejudiced by the inadequacy of the notice provided him, if for example he had had a possibly valid claim to medical exemption or to an exemption for prior military service, or if he had stood in danger of losing employment because of the examination. See United States v. Wendt, 452 F.2d 679 (9th Cir. 1971). But the record, both before Judge Pierce on the motion and before this court on appeal, is barren of any such claim. Velazquez’ claim is rather that all his obligations to the Selective Service, including those to report for and submit to induction, regardless of their validity, must fall if the one on which no infraction of the law is charged contained a procedural defect which is not even shown to have been prejudicial to him.

This is too large a structure to build on so weak a foundation. In the first place, Form Letter # 8 does provide adequate notice of the obligation to report for and submit to a physical examination. The letter advises the registrant of the existence of the obligation, of the time, date, and location to report, and of an address or telephone number through which the registrant can communicate with the authority promulgating the order should he be unable for some reason to comply.

Adequacy of notice has been found in other cases on less than even these requirements. United States v. Abrams, 476 F.2d 1067, 1070 (7th Cir. 1973); United States v. Williams, 433 F.2d 1305, 1306 (9th Cir. 1970). Both of these eases involved oral notice to the registrant of a Selective Service obligation where there was no proof of receipt of any written order, nor any proof that the registrant was informed of the consequences of disobedience. As a matter of law no more than this was required at the time Velazquez’ letter order was received. See United States v. McGee, 460 F.2d 1287 (7th Cir. 1972); United States v. Zaugh, 445 F.2d 300 (9th Cir. 1971); United States v. Dombrouski, 445 F.2d 1289 (8th Cir. 1971); United States v. DeNarvaez, 407 F.2d 185 (2d Cir.), cert, den., 396 U.S. 822, 90 S.Ct. 62, 24 L.Ed.2d 72 (1969).

The government, when it has expressed through valid laws its need for the compulsory military service of its citizens, does not carry the burden of calling up those selected by only one detailed means. It may use a variety of means of communication which are in common use: letter, telegraph, telephone, personal contact. See Bartchy v. United States, 319 U.S. 484, 63 S.Ct. 1206, 87 L.Ed. 1534 (1943). This necessity for flexibility need only provide notice in sufficient detail so that those who fail to heed the-call will not be punished because they did not know the act required of them. A citizen’s possible defenses to performance of this act need not be specified to him in advance in an order to report so long as some mechanism is provided, as it is through the induction system, by which such claims may be raised. United States v. Irons, 369 F.2d 557 (6th Cir. 1966). See Schutz v. United States, 422 F.2d 991 (5th Cir. 1970).

If Velazquez had such claims, he could have tested them through cooperation with the Selective Service. Should he still have them, he is free to test their meritoriousness at trial. He may then place in issue any facts which he believes show that the obligations were unlawfully imposed on him to submit to a physical examination and later to report for and submit to induction, as well as any facts which may rebut any presumption supporting the validity of such obligations. We hold only that such obligations were not unlawfully placed upon him when notice of them was initially made through receipt of Form Letter # 8.

Beyond this, however, there is a well-established distinction in the decisions enforcing the draft laws between the obligation of reporting for examination or induction and that of submitting to them. See Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917 (1944). Wilful refusal to comply with either obligation can constitute the foundation for a separate offense under 50 U.S.C. App. § 462(a) or its predecessor provision (see United States v. Dombrouski, supra, at 1293-1295; Schutz v. United States, supra, at 994), although a violation for failure to report is ordinarily merged into one for failure to submit if both are established. United States v. Irons, supra.

This distinction makes Velazquez’ claims all the more anomalous. Charged with refusal to' submit to a physical examination, he may of course raise all possible defenses to the charge, including inadequate notice of the consequences of such refusal. In so doing he may indeed be able to establish that, once at the examination station, he was never apprised of all the ramifications of disobedience or of failure to cooperate. To establish that, however, requires more than a showing that his order to report contained allegedly defective notice of his obligation merely to be at a certain place at a certain time. For, having reported, he must show more than defective notice to report in order to establish a defense that his refusal to submit to a physical examination was lawful.

We therefore hold that on the basis of the facts disclosed in the motion papers before the district court there was no legal ground for dismissing count I of the indictment. It necessarily follows that count II was also improperly dismissed. The indictment is therefore to be reinstated in all respects.

Reversed and remanded for further proceedings.

KAUFMAN, Chief Judge

(dissenting) :

As I understand the majority opinion, we are holding today that, because the trial judge deprived the government of something akin to due process, the defendant is to be denied the protections of the Double Jeopardy Clause. In so holding, we fly in the face of the législative history of the Criminal Appeals Act, 18 U.S.C. § 3731, 84 Stat. 1890, the Supreme Court’s decisions interpreting that Act, and our own recent decision in United States v. Jenkins, 490 F.2d 868, at 868 (2d Cir. 1973). More importantly, we have begun a process of eroding the absolute protections of a Constitutional command: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” That principle, “one of the oldest ideas in western civilization,” is justly founded upon “fear and abhorrence of governmental power to try people twice for the same conduct.” My brother Lumbard in his dissent in Jenkins, stated that the “inflexible application of the Double Jeopardy Clause unnecessarily frustrates the fair administration of criminal justice.” He would therefore apply to this case a balancing test to determine whether the protections of that clause attach. I believe that the purpose of the Double Jeopardy Clause was to insure the fair administration of criminal justice by placing an absolute barrier between the awesome power of the government and the criminal accused when a judgment on the merits is rendered in his favor. Accordingly, I dissent.

We recently had occasion in United States v. Jenkins, supra, to explore in depth the ambit of the double jeopardy protection accorded one whose indictment was dismissed. In a thorough opinion by my brother Friendly, we held that the Double Jeopardy Clause bars an appeal by the government after the trial court has “dismissed the indictment” based on facts developed at trial, not apparent on the face of the indictment, and which related to the general issue of the case. Although the majority expressly reserved the question whether a similar result would obtain had the district court acted before trial, neither precedent nor policy dictate a different conclusion.

It is fundamental that a defendant, once acquitted, may not again be placed in jeopardy for the same alleged crimes. Fong Foo v. United States, 389 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1905); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Accordingly if the judgment below constituted an acquittal of Velazquez, reprose-cution is barred and we lack jurisdiction to hear this appeal.

The majority opinion notes that Velazquez filed numerous motions for pretrial relief. The trial judge, ruling in defendant’s favor on one of these motions, dismissed the first count of the indictment which alleged failure to submit to a physical examination, and the second count — failure to report for induction — as well. These dismissals form the predicate of this appeal. Although it is true that Velazquez characterized his motion as one to dismiss the indictment pursuant to Rule 12, Fed.R.Crim. P., it is clear that he was not asserting any defect appearing on the face of the indictment, nor did he claim that the indictment failed to charge a crime, or that the underlying statute was violative of the Constitution. Rather, Velazquez asserted his factual defense to the charges, contending that he had not received proper notice of the physical examination and accordingly had no obligation to report for or submit to that examination.

It is critical to note that in support of his motion, Velazquez submitted documentary evidence, garnered in the course of pretrial discovery, which included the Minutes of Action and three Selective Service Board communications regarding his physical examination, all of which were contained in his Selective Service file. The government answered by submitting a four-page affidavit in opposition to the motion. It made no effort to dispute the evidence proffered by Velazquez, adding only that Velazquez had failed to point out that his “new address was not received until 3 days after his reporting date.” In ruling on the motion, Judge Pierce concluded that since the facts were not in dispute, and these facts sustained Velazquez’s contention that he had never received nor was otherwise aware of adequate notice of his duty to report for a physical examination, the Selective Service violations had not been established. Actions had not been established. Accordingly, Judge Pierce dismissed the indictment.

At the outset, it is clear that neither Velazquez’s description of his motion as one to “dismiss” the indictment nor Judge Pierce’s characterization of his decision as a “dismissal” is dispositive, of the question before us. We are instructed that it is the nature of the judgment, not the name appended to it, which is determinative of the double jeopardy issue. United States v. Sisson, 399 U.S. 267, 279 n. 7, 290, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); United States v. Jenkins, supra, 490 F.2d at 878. In Sisson, for example, the district court granted a motion “in arrest of judgment” following a jury verdict of guilt. A majority of the Supreme Court held, however, that despite this characterization, the judgment was in fact an acquittal and had to be treated as such because the trial judge had made findings of fact based on the evidence presented at trial. Moreover, he had applied the law to those facts and concluded ultimately that Sisson was innocent of draft evasion. The majority stated that since the judgment was based upon factual determinations beyond the face of the indictment, it would not be treated as a “dismissal” or an “arrest of judgment.” It was, instead, an acquittal on the merits. As such, the Court held, the government was precluded from appealing by both the then-existing version of the Criminal Appeals Act and, more basically, by the constitutional bar to double jeopardy.

Although, as in Jenkins, the trial judge in Sisson had made his findings of fact on evidence submitted in the course of a trial, any doubt that the same rationale applies to a judgment entered prior to commencement of trial was dispelled by United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L. Ed.2d 507 (1972), where the prosecution attempted to appeal from a pretrial dismissal of an indictment. The appellee argued that the dismissal was in fact an acquittal, and hence non-appealable on statutory and constitutional grounds. The Court agreed that if the district court had gone beyond the face of the indictment to make factual findings peculiar to the case at hand, Sisson would prohibit the government from seeking review:

Under United States v. Sisson . an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated fact or the showing of evi-dentiary facts outside the indictment, which facts constitute a defense on the merits at trial, no appeal is available.

408 U.S. at 506, 92 S.Ct. at 2534.

Moreover, under both the prior and current Criminal Appeals statutes, every circuit that has considered the question in the context of a Selective .Service prosecution has decided that a pretrial “dismissal” based on facts not found on the face of the indictment is in reality an acquittal and may not be appealed. United States v. Rothfelder, 474 F.2d 606 (6th Cir. 1973); United States v. King, 474 F.2d 1343 (4th Cir. 1973); United States v. McCreery, 473 F.2d 1381 (7th Cir. 1973); United States v. Weller, 466 F.2d 1279 (9th Cir. 1972); United States v. Ponto, 454 F.2d 657 (7th Cir. 1971); United States v. Findley, 439 F.2d 970 (1st Cir. 1971). Although only the Seventh Circuit in McCreery and Ponto, and the Ninth Circuit in United States v. Hill, 473 F.2d 759 (1972), an obscenity prosecution, have explicitly stated that the double jeopardy clause bars reprosecution, each of the other decisions, which bar the appeal after determining that the “dismissal” in fact constituted a non-appealable acquittal, necessarily imply the constitutional bar as well.

In the face, then, of uniform authority to the contrary, the majority con-eludes that although the trial court clearly went beyond the face of the indictment in granting Velazquez’s motion to dismiss, jeopardy did not attach because the facts relied on by the court had not “been tested in the forge of open court,” nor had they “been accepted by the government without opposition.” Putting to one side that the evidentiary facts upon which Judge Pierce ruled were effectively beyond dispute, I cannot subscribe to the majority’s rationale which exalts form over substance in determining when the fundamental protection of the Double Jeopardy Clause shall apply. Whether the facts found by the court were elicited at trial, in an evidentiary hearing or, as in this case, on the basis of affidavits and exhibits presenting uneontested documentary evidence, when those facts support a defense to the crime charged, an acquittal results. Surely the majority’s emphasis on procedural niceties disregards the Supreme Court’s repeated admonitions against the use of wooden technicalities in construing the double jeopardy provision. See e. g. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

A simple illustration will demonstrate the ethereal quality of the distinction drawn by the majority between a “fact-finding proceeding” which triggers the protection of the Double Jeopardy Clause and one which does not. The majority virtually concedes that an appeal would not lie in this case had Judge Pierce ruled after receiving evidence submitted by Velazquez “in the presence of his adversary.” Thus, had Velazquez been required to call even a single witness in support of his motion — perhaps the chairman or secretary of the draft board — to authenticate the contents of his Selective Service file, the requisite standard of formality pronounced by the majority would have been satisfied. Not only will this concept promote needlessly prolonged litigation to supply the trappings demanded by the majority, but it is far too slender a reed on which to rest fundamental constitutional rights.

If there remains any doubt that the majority’s opinion pays homage to form at the expense of substance and reason, our decision in United States v. Strayhorn, 471 F.2d 661 (2d Cir. 1972) should lay it to rest. We set down in Stray-horn, for the guidance of trial courts in the future, a procedure in Selective Service prosecutions for dealing with defenses challenging the validity of Selective Service orders, defenses which would ultimately determine the life or death of the case. There, we stated that the order-of-call defense, which attacks the validity of the local board’s induction order, “is one properly raised before trial through a motion for judgment of acquittal.” United States v. Strayhorn, supra, 471 F.2d at 665. The forceful reasons of judicial efficiency which led us to compel prospective defendants to assert the order-of-call defense prior to trial would certainly appear applicable as well to defenses attacking the issuance and mailing of Selective Service orders, such as that advanced here. Since I read Jenkins to bar appealability had Judge Pierce sustained the identical defense following examination of Velazquez’s Selective Service file upon a motion for acquittal at the close of the prosecution’s case, I cannot accept the majority’s position which only penalizes Velazquez for heeding the import of Strayhorn.

In sum, I find it difficult to acquiesce to the erosion of the constitutional guarantee against double jeopardy which my brothers’ opinion condones. Had Velazquez called his motion a “motion for judgment of acquittal” rather than a “motion to dismiss,” and had the judge chanted the magic words — “not guilty,” “I acquit” or “the government has failed to meet its burden of proof beyond a reasonable doubt” — rather than “I dismiss,” his decision would have been immune to appellate review and the defendant protected against retrial. Surely if Sisson and Jenkins teach us anything, it is that mere labels do not carry the day on an issue as vital as double jeopardy. It can hardly be questioned that Judge Pierce indeed treated Velazquez’s motion as one to acquit, for he found facts, nowhere appearing on the face of the indictment and grounded on evidence proffered by the defendant, which, in addition, went to the essence of his guilt or innocence of the offense.

I conceive that the underlying motivation for the majority’s holding is its concern that the trial judge may bar “proper” prosecution of a case by arrogating to himself “the power to decide a case on the merits without ever having the defendant confronted with the evidence in open court.” But, the judge has that power now, either by “dismissing” the indictment on undisputed, and therefore uneonfronted, facts after a trial has commenced, or by directing a verdict of acquittal at the close of the government’s ease. He may also, it would appear from my brother’s opinion, dismiss an indictment before trial on facts not appearing in the record and, so long as he does it with a sufficient degree of formality, protect the defendant against an appeal and retrial. Thus, despite its apparent narrowness, the danger with the majority’s opinion is that balancing tests will be used to whittle away what my brother Friendly referred to in Jenkins as the “thicket” of double jeopardy protections until few branches remain to shelter the accused. I cannot join in this process of attrition of one of the most basic constitutional protections.

Accordingly, I respectfully dissent.

      . Form Letter $ 8 informs the registrant that he is under a “continuing obligation” to report for a physical examination, refers to any outstanding order of the local board, and informs him of the place, date, and time for his examination. By contrast, a Form 223 order contains additional information on how the registrant may have the location of his physical examination transferred, how he may guard against loss of his job, and how he may present evidence of medical disability or prior military service. It also warns him of possible administrative and criminal sanctions for failure to obey the order.

      . The applicable regulation during the period in issue here, originally § 1628.16 of 32 C. F.R., was renumbered to § 1628.10 effective December 10, 1971, and to § 1641.4 effective September 2, 1972. The section, in pertinent part, reads as follows :
      When the local board mails to a registrant an Order to Report for Armed Forces Examination (SSS Form 223), it shall be the duty of the registrant to report for such examination at the time and place fixed in the order. ... [Emphasis added.]

      . The relevant portion of the Criminal Appeals Act, 18 U.S.C. § 3731, as amended, which allows appeals by the government in criminal cases in certain instances provides:
      In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
      *****
      The provisions of this section shall be liberally construed to effectuate its purposes.
      This language was the result of an amendment added by the Omnibus Crime Control Act of 1970, § 14(a), 84 Stat. 1890, with respect to cases in which the indictment was brought after the effective date of the Act, January 1, 1971. Under the prior wording of the statute appeals by the government in criminal cases were more strictly limited than merely by the double jeopardy provision of the Constitution, and raised many difficulties beyond those concerning double jeopardy. See United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970).

      . It is safe to conclude on the basis of his pretrial motions, which sought in part to discover material concerning federal jury selection procedures, that Velazquez did not contemplate waiving his right to a jury trial and that therefore the jury would be the ultimate trier of fact on the merits. However, the stage reached at the time of Judge Pierce’s dismissal of the indictment was too early for us now to state categorically that this was a jury or a non-jury case. Moreover, we are mindful, as Velazquez has argued, that in Selective Service cases before a jury the judge may initially decide some of the facts at trial. But these considerations relating to the course a trial may take once it is before a jury or simply a judge are not determinative where the defendant’s choice of trier of fact has not yet been made.

      . While many of the problems discussed in Sisson (see fn. 3, above) concerning the characterization of motions may now be avoided, we do not see that the amended version of the statute in any way makes the law of double jeopardy more liberal. That law is rather the “constant” by which ap-pealability is to be measured. Consequently, solely insofar as jeopardy to the individual is concerned, we perceive no reason for distinguishing cases decided under the old wording of the act from those decided under the new.

      . That an adjudication on stipulated facts would bar retrial is in keeping with this policy of openness. In such an instance facts have again been offered to the other side and made part of the public record, with the only difference that instead of inviting challenge they have engendered acquiescence. But at least both sides have had the opportunity to pass upon them in the process of submission to the court. We note, however, that the prohibition against an appeal on stipulated facts rests at present on dicta in the Brewster and Sisson cases and not on a specific holding of the Supreme Court. See United States v. Brewster, supra, at 506 of 408 U.S., 92 S.Ct. 2531; United States v. Sisson, supra, at 285 of 399 U.S., 90 S.Ct. 2117.

      . Most of the recent draft cases cited by the defendant in support of his claim that jeopardy has attached, while close in point, are distinguishable because the trial court’s action had gone further than was the case here. In most of them there was either a hearing on the evidence raised in the motion to dismiss or a presentation of evidence at trial, thereby arguably carrying the defendant across the threshold of jeopardy. See United States v. Sisson, supra; United States v. McCreery, 473 F.2d 1381 (7th Cir. 1973) ; United States v. Ponto, 454 F.2d 657 (7th Cir. 1971) ; United States v. Findley, 439 F.2d 970 (1st Cir. 1971). But see fn. 8, infra. United States v. Rothfelder, 474 F.2d 606 (6th Cir.), cert, den., 413 U.S. 922, 93 S.Ct. 3066, 37 L.Ed.2d 1044 (1973), appears more favorable to the defendant from the opinion of the court of appeals, but the district court’s opinion, 338 F.Supp. 1164 (W.D.Mich., 1972), makes it clear that the motion was decided on facts which the parties had agreed were undisputed.

      . See the dissenting opinion in United States v. Jenkins, 490 F.2d 868, at 880 (2d Cir. 1973), for further views on the critical role of factual allegations in determining the nature of a dismissal of the indictment. It is true that the procedural situation in Jenkins was markedly different than here, since trial there was well underway; consequently we do not believe that the majority’s opinion in Jenkins is contrary to our holding here.

      . The defendant argues that were we to permit an appeal under § 3731 here, then no conscientious defense counsel would raise a motion to dismiss under Rule 12 until after trial had begun, thereby not only defeating the purpose of litigating defenses prior to trial, but also causing added expense to both the government and defendants so as to be ready in every case for a trial on the merits. See United States v. Findley, supra (fn. 7). We do not agree. At most counsel would only be sure to have pretrial motions under Rule 12 heard by the court, with both sides present, and with characterizations of evidence argued to the trier of fact. Where counsel has raised a defense which does not call for such a presentation of evidence, his client runs no more risk than on a motion for dismissal of an indictment based, for example, on the government’s bill of particulars.

      . Since Velazquez concedes that he did receive Form Letter # 8, there is no need to consider the argument, suggested by the government and rejected by Judge Pierce, that the mere mailing of an order to report creates a “continuing” and valid legal duty to comply which is in itself sufficient to maintain a conviction under 50 U.S.C.App. § 462(a) if noncompliance is proven. See fn.

      . Bartkus v. Illinois, 359 U.S. 121, 151, 79 S.Ct. 676, 696, 3 L.Ed.2d 684 (1959) (Black, J., dissenting).

      . Id.

      . United States v. Jenkins (2d Cir. 1973) 490 F.2d at 881 (Bumbard, J., dissenting).

      . According to the majority, “The critical question is whether the government’s action in prosecuting Velazquez, in both its administrative and judicial phases, reached the point where the government’s power to retrace its steps is checked by countervailing interests of the individual protected by the double jeopardy clause of the fifth amendment.” This is, of course another way of saying that the interests of the accused must be balanced against those of the government.

      . Since I do not believe we have jurisdiction to bear this appeal, I express no view on the merits of this ruling.

      . Reference is made to Part II C of Justice Harlan’s opinion in Sisson, United States v. Sisson, supra, 399 U.S. at 288-290, 90 S.Ct. 2117, in which he was writing for a majority of the Court.

      . Tlie Court went on to decide that in the particular circumstances of the Brewster prosecution, the district court judgment rested solely upon the indictment itself, rather than upon extraneous facts, and hence was a reviewable dismissal rather than an acquittal.

      . Both the prior and current texts of the Criminal Appeals statutes explicitly provide only for government appeal from dismissals of prosecutions. Several circuits have therefore concluded that the statute does not permit appeal from an acquittal, as opposed to dismissal, without expressly reaching the constitutional issue. In a sense, however, this begs the question, because one of the essential features of an acquittal that distinguishes it from a dismissal is its finality, in the double jeopardy sense. The determination that a particular judgment is an acquittal, therefore, is at least a tacit expression that the double jeopardy clause forbids re-prosecution.

      . Contrary to the majority’s claim, United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969), does not represent an instance in which an appeal was permitted where the trial court went beyond the face of the indictment in ruling on a motion to dismiss. In Covington, the defendant was indicted for having violated the Marihuana Tax Act by obtaining marijuana without having paid a transfer tax. The defendant moved to dismiss on the ground that his privilege against self-incrimination would necessarily provide a complete defense to the prosecution. The government argued that, properly construed, the transfer tax provisions of the Act would not compel incriminatory disclosures. The district court dismissed the indictment, and although the Court affirmed on the merits, it noted that the bases for the dismissal were questions of law and that, in Covington’s case, there was no necessity to resolve issues of fact peculiar to the motion. Moreover, in Sisson, Justice Harlan explicitly distinguished Cov-ington on the ground that no factual findings were required, and added that, “nowhere does the opinion in Covington even hint that a dismissal requiring a pretrial evidentiary hearing, or a dismissal motion properly deferred to the trial of the general issue would be appealable under the motion-in-bar provision of the Criminal Appeals Act.” United States v. Sisson, supra, 399 U.S. at 303 n. 56, 90 S.Ct. at 2137.
      The majority’s reliance on United States v. Boston & Maine Railroad, 380 U.S. 157, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965), which my brother Lumbard also cited in his dissent in Jenkins is similarly misplaced. The jurisdictional point was apparently neither raised nor considered. Moreover, the Court explicitly left open all questions except its construction of the statute involved. Finally, the Court noted that, although the case was decided below and argued on appeal on the assumption that the indictment itself was sufficient against a motion to dismiss but became insufficient by reason of the bill of particulars, the Court refused to express any view whether a bill of particulars was in fact part of the record for purposes of a motion to dismiss an indictment. Of course, a court may always consider the face of the record in ruling on a motion to dismiss. At most, Boston & Maine Railroad stands for the proposition that a bill of particulars which is a “filed” paper in a criminal proceeding, as is the indictment, may serve to “illuminate” the appropriate construction of a statute. But, the Selective Service documents considered in the instant case constitute evidence, not a “filed” paper or an additional pleading or “illumination” of the indictment. The documents were offered by tlie defendant as his answer to the charge and to establish his innocence.

      . On appeal, the government rather weakly maintains that the district court’s unexpected granting of the defense motion prevented the prosecution from presenting its evidence. But even now the government does not deny the accuracy of the materials excerpted from Velazquez’s Selective Service file, nor does it challenge the correctness of the district court findings of fact drawn therefrom.

      . In this case, of course, the defendant produced the evidence in his defense.


author: GEE, Circuit Judge:

text:
    Gordon K. SHUTT, Plaintiff-Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant-Appellee.
    No. 73-1472.
    United States Court of Appeals, Fifth Circuit.
    Feb. 22, 1974.
    Mark H. Shenfield, West Point, Miss., for plaintiff-appellant.
    Faltón O. Mason, Jr., Asst. U. S. Atty., H. M. Ray, U. S. Atty., Oxford, Miss., for defendant-appellee.
    Appeal from the United States District Court for the Northern District of Mississippi.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

Five hundred pounds of sheet steel fell on Gordon K. Shutt’s head and back. After allowing Shutt disability benefits for approximately 2^j years, the Secretary, through the appropriate administrative mechanism, determined that Shutt’s disability had ceased. Additionally, the Secretary found that HEW had overpaid Shutt approximately $2,500 in benefits, which Shutt was obliged to repay. Finally, the Secretary determined that a subsequent accident, on January 7, 1970, did not entitle Shutt to disability benefits. Shutt sought review of the Secretary’s decision in federal district court pursuant to Section 205(g) of the Social Security Act, 42 U. S.C.A. § 405(g). The district court affirmed the Secretary. On appeal, Shutt contends that the Secretary’s decisions were not supported by substantial evidence. We do not review the case under the substantial evidence standard because we conclude that the district court and the HEW hearing examiner failed to address important fact questions and to apply the appropriate criteria. We vacate and remand for reconsideration.

Shutt sustained severe neck and back injuries as a result of the steel falling on him. He was hospitalized and underwent an operation. The neurosurgeon noted that Shutt was also experiencing bizarre episodes like temporal lobe seizures. Shortly thereafter, he was rehos-pitalized because of speech and memory difficulties. A neurosurgeon and psychiatrist diagnosed Shutt as suffering from an anxiety conversion reaction. Later in 1967, another psychiatrist concluded that Shutt suffered from a conversion reaction, chronic, severe, manifested by pain in the back, neck, arms and shoulders, plus objective loss of sensation and paralysis of an intermittant nature, left arm and leg. At one time, Shutt was hospitalized following a severe seizure. He suffered a memory loss and tests indicated a mental age of three. The symptoms dissipated and he was released.

He continued to consult a psychiatrist when necessary and when he could afford it. All examinations resulted in guarded prognoses and diagnoses similar to the original evaluation of Shutt’s ailments. On January 7, 1970, he again suffered a head injury. On discharge after twenty days in the hospital, the neurosurgeon again diagnosed Shutt’s condition as conversion hysteria and pseudoseizures.

Shutt described his symptoms as constant pain in his neck, back, left shoulder, arm and back of his left leg; occasional head pain; occasional pain which drove him to a screaming stage; psychological or psychiatric problems that bother him; mental pressures; and occasional seizures or spells. On the other hand, when he was not suffering extreme pain or undergoing a seizure or spell, Shutt led a rather normal, self-sufficient existence.

In June, 1968, because of financial pressures, Shutt returned to work without his doctor’s .permission. He held various jobs for 17 of the next 20 months, until his accident in January, 1970. In 1968, he earned $1,513.13; in 1969, he earned $4,802.66, and in 1970, he earned $511.32.

During that period, Shutt held six different jobs, the longest for five months and one for one or two weeks. The jobs included: carpet salesman, small electrical appliance repairman, door-to-door encyclopedia salesman, communications operator trainee, and clerk in a computer room of a bank. Shutt testified that on three of the jobs he was either asked to resign or he was fired because of his medical record. On two occasions, he was asked either to resign or he was fired because he was making too many mistakes. One of the symptoms of his mental impairment was his susceptibility to making errors without being aware of them. He stated, “I can type between 55 to 70 words a minute, but some days —after I look at this over here and type it, it just comes out gibberish.” In addition, one of his treating doctors reported that several medications tried failed to help Shutt significantly with his peculiar episodes of misstatements.

Shutt attended vocational school from April, 1970, to May, 1971, completing a course in home appliance service and repair. He testified that he missed about 38 days of school because of particularly aggravated symptoms, including seizures, on those days. He testified further that, since finishing the course, he had been unsuccessful in obtaining employment. He claimed that employment agencies had told him that it was futile to refer him to employers because of his medical record. Employers would refuse to hire him because of workman’s compensation and insurance restrictions. He also stated that potential employers whom he had contacted directly and informed of his medical history would not hire him.

As a result of the physical and mental impairments caused by the first accident, the Bureau of Disability Insurance awarded Shutt a period of disability commencing on September 9, 1966, and entitlement to disability insurance benefits commencing in April, 1967. In a proceeding only peripherally related to this appeal, a hearing examiner determined in July, 1969, that Shutt’s benefits should not be reduced because of workman’s compensation awarded in August, 1967. That hearing examiner also noted that Shutt had returned to work and found that he was in a trial work period.

While in the hospital during January, 1970, Shutt furnished full information about all the jobs he had held since September, 1966, to a Social Security agent. On May 7, 1970, the Social Security Administration notified Shutt that his disability had ceased as of April, 1969. They informed him that not only did his work record indicate that he was capable of substantial gainful work as of April, 1969, but that he would be required to repay $2,427.60 in payments he had received since June, 1969, unless he could show he was without fault in causing the overpayments and that repayment would cause him financial hardship.

On May 21, 1970, Shutt submitted an answered questionnaire, seeking to show his lack of fault in receiving the over-payments and to show his financial condition. In addition, he submitted a new application for disability benefits alleging a new onset of disability arising from the accident of January 7, 1970. After the Administration determined and notified Shutt that he would still be required to repay the money and denied his new application for disability, he requested reconsideration, which was denied. He then requested and was granted an appeal hearing which was held on June 10, 1971. The decision from that hearing is the subject of this appeal.

The Social Security Act defines disability as:

(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; . . . .

42 U.S.C.A. § 423(d)(1) (A).

The Act authorizes the Secretary to prescribe by regulations:

criteria for determining when services performed or earnings derived from services demonstrate an individual’s ability to engage in substantial gainful activity.

42 U.S.C.A. § 423(d)(4).

That section further provides that an individual whose services or earnings exceed the standards set by the Secretary shall be found not to be disabled.

The Secretary’s standards include:

20 C.F.R. § 404.1532 Evaluation of work activities.
(a) In general. If an individual performed work during any period in which he alleges that he was under a disability . . . the work performed may demonstrate that such individual has ability to engage in substantial gainful activity. If the work performed establishes that an individual . . is able to engage in substantial gainful activity, he is not under a disability .... Work which does not in itself constitute substantial gainful activity, may nevertheless indicate the existence of a residual capacity of such individual to engage in substantial gainful activity. Thus, an individual who utilizes work skills or abilities on a limited basis may not be under a disability if he is capable of increased utilization of such work skills or abilities.
(b) Substantial gainful activity defined. Substantial gainful activity refers to work activity that is both substantial and gainful. Substantial work activity involves the performance of significant physical or mental duties, or a combination of both, productive in nature. Gainful work activity is activity for remuneration or profit (or intended for profit, whether or not a profit is realized) to the individual performing it or to the persons, if any, for whom it is performed, or of a nature generally performed for remuneration or profit. In order for work activity to be substantial, it is not necessary that it be performed on a full-time basis; work activity performed on a part-time basis may also be substantial. It is immaterial that the work activity of an individual may be less, or less responsible, or less gainful, than that in which he was engaged before the onset of his impairment.
(c) Nature of the work. The performance of duties involving skill, experience or responsibility, or contributing substantially to the operation of an enterprise is evidence tending to show that an individual has ability to engage in substantial gainful activity.
(d) Adequacy of performance. The adequacy of an individual’s performance of assigned work is also evidence as to whether or not he has ability to engage in substantial gainful activity. The satisfactory performance of assignments may demonstrate ability to engage in substantial gainful activity, while an individual’s failure, because of his impairment, to perform ordinary or simple tasks satisfactorily without supervision or assistance beyond that usually given other individuals performing similar work, may constitute evidence of an inability to engage in substantial gainful activity . (emphasis added)

The significance of an applicant’s earnings are discussed in:

20 C.F.R. § 404.1534 Evaluation of earnings from work.
(a) General. Where an individual who claims to be disabled engages in work activities, the amount of his earnings from such activities may establish that the individual has the ability to engage in substantial gainful activity. Generally, activities which result in substantial earnings would establish ability to engage in substantial gainful activity; however, the fact that an individual’s activities result in earnings which are not substantial does not establish the individual’s inability to engage in substantial gainful activity. Where an individual is forced to discontinue his work activities after a short time because his impairment precludes continuing such activities, his earnings would not demonstrate ability to engage in substantial gainful activity ....
(b) Earnings at a monthly rate in excess of $lk0. An individual’s earnings from work activities averaging in excess of $140 a month shall be deemed to demonstrate his ability to engage in substantial gainful activity unless there is affirmative evidence that such work activities themselves establish that the individual does not have the ability to engage in substantial gainful activity under the criteria in § 404.1532 . . . and paragraph (a) of this section, (emphasis added)

In regard to overpayments, the Act provides in 42 U.S.C.A. § 404:

(b) In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.

See Morgan v. Finch, 423 F.2d 551 (6th Cir. 1970) .

The hearing examiner decided: (1) Shutt’s disability had ceased in April, 1969, thus his entitlement to a period of disability and to disability benefits previously established had properly been terminated in June, 1969; (2) Shutt received overpayment of $2,427.60 from July, 1969, to April, 1970, and that repayment should not be waived; and (3) that Shutt was not entitled to a new period of disability or to disability payments rising from his accident of January, 1970.

It appears that the examiner based his first conclusion on the bases of the nature of Shutt’s jobs and the amount of his earnings. For his second finding, the examiner relied on his estimation of Shutt’s intelligence to conclude that Shutt could not have believed he was entitled to full disability benefits while working: thus, Shutt was not without fault in accepting the overpayments. Additionally, the examiner, without stating what evidence he relied upon, concluded that it would not defeat the purposes of the Act or be against equity and good conscience to require repayment. Finally, the examiner found that Shutt’s second accident caused no significant aggravation of his prior impairments because he was able to attend vocational school, to carry on daily activities normally, and because he had sought only a minimum of medical treatment.

The district court affirmed the examiner’s (which became the Secretary’s) decision. The court concluded that the examiner’s findings about Shutt’s disability were supported by substantial evidence and that, although Shutt had notified the other hearing examiner and a Social Security agent of his employment, the examiner’s conclusion that Shutt was at fault for the overpayments was correct.

Shutt’s earnings, which exceeded $140 a month, demonstrated his ability to engage in substantial gainful activity, but the examiner failed to consider Shutt’s testimony, about the reasons he held so many jobs and his inability to acquire a job if he revealed his medical history, in light of the clause in 20 C.F.R. § 404.1534(b) providing that, where an individual discontinues work because of his impairments, his earnings would not demonstrate ability to engage in substantial gainful activity, and the “adequacy of an individual’s performance” provision in 20 C.F.R. § 404.-1532(d).

Serious questions are evident as to whether Shutt’s employment history affirmatively demonstrates his inability to engage in substantial gainful activity, Wilson v. Richardson, 455 F.2d 304 (4th Cir. 1972). Although the examiner seemingly relied upon Shutt’s job record as evidence of his ability to engage in substantial gainful activity, Shutt’s “sporadic and transitory activities may demonstrate not his ability, but his inability to engage in substantial gainful activity.” Wilson v. Richardson, supra, at 307.

On remand, Shutt’s claim for disability after April, 1969, should be considered in light of the provisions cited above. If it is necessary to determine his claim for disability from the January, 1970, accident, the considerations set out above are applicable, also:

Additionally on remand, if necessary, the evidence which indicates that Shutt notified the Administration of his employment and that the hearing examiner in 1969 found that Shutt was still disabled should be considered in determining whether repayment should be waived.

Vacated and remanded.

      . A laminectomy and bilateral facetotomy of L-5, described as a surgical decompression of L-5 to SI nerve root, bilaterally, after traumatic exacerbation of spondylolysis producing back and bilateral leg pains.

      . 42 U.S.C.A. § 422(c) provides that after establishment of disability an individual may perform remunerative services for nine months (consecutive or non-consecutive) which will not be considered in determining whether his disability has ceased during that period.

      . 42 U.S.C.A. § 416(i) (2) (D) (ii) provides that disability payments will cease the second month following the month in which the disability ceases.

      . See the statutory and regulatory standards set out and discussed infra.

      . 20 C.F.R. § 404.506 provides:
      . . . there shall be no . . . recovery . . . with respect to an individual:
      (a) Who is without fault, and
      (b) Adjustment or recovery would either:
      (1) Defeat the purpose of title II of the Act, or
      (2) Be against equity and good conscience. See also 20 C.F.R. § 404.507 and .508.

      . Hedge v. Richardson, 458 F.2d 1065 (10th Cir. 1972); Harris v. Richardson, 450 F.2d 1099 (4th Cir. 1971).