author: DANAHER, Senior Circuit Judge:

text:
    Murray A. KIVITZ, Petitioner, v. SECURITIES AND EXCHANGE COMMISSION, Respondent.
    No. 71-1602.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 27, 1972.
    Decided Jan. 31, 1973.

      Joseph A. Fanelli, Washington, D. C., for petitioner.
    Jacob H. Stillman, Asst. General Counsel, Securities and Exchange Commission, with whom Walter P. North, Associate General Counsel and Michael J. Roach, Attorney, Securities and Exchange Commission were on the brief, for respondent.
    Before DANAHER, Senior Circuit Judge, and McGOWAN and ROBB, Circuit Judges.
   DANAHER, Senior Circuit Judge:

Before us is a petition to set aside a Commission order suspending for a period of two years the right of Petitioner Kivitz, an attorney, to practice before the Commission. The order stemmed from the Commission’s conclusion that Kivitz had engaged five years earlier in purportedly unethical and improper conduct unrelated to Commission practice.

I

This whole episode arose from efforts of one Robert Acides, president of Houses of Plastic, Inc. (hereinafter Plastic), to have processed through the Securities and Exchange Commission a satisfactory registration statement respecting a proposed offer of twelve million shares of Plastic stock at $1 per share. We are speaking specifically of the alleged wrongdoing on the part of Kivitz.

The Commission found, in essence, that Kivitz had allowed one Harold G. Quase, a layman, to set the terms of a proposed fee to be received by Kivitz. The Commission opinion correctly recognized that there was an “absence of direct testimony in the record that respondent agreed to divide the fee with Quase,” but went on to observe that this was “not conclusive.” The Commission opinion next recited that the record clearly supported the “inference” that Quase and Kivitz anticipated Quase would receive a portion of the Kivitz fee. There was no direct testimony on this point, either. The opinion continues that as a further part of the “inference” Kivitz was to allow Quase to receive a portion of the Kivitz fee “purportedly to pay for political influence to clear the registration statement to be prepared” by Kivitz. Neither “purportedly” nor otherwise can we find any evidence that Kivitz intended to share some portion of his fee to pay for political influence designed to secure SEC clearanee for the registration statement in behalf of Plastic.

On the contrary, it developed according to the record, that Quase either in person or by telephone conversations with people interested in the Plastic program, had made various representations concerning his ability to promote the interests of Plastic and that one David Doane of Boise, Idaho, as attorney for Houses of Plastic, Inc., had come to Washington for the express purpose of a conference with Quase.

On the morning of October 29, 1964, Doane first went to the office of one Mary Jo Freehill, a public stenographer at the Mayflower Hotel. She telephoned to Quase, set up an appointment and then escorted him to the Quase office and introduced Doane. The latter warmly welcomed Attorney Doane. Quase exhibited one photograph of himself with President Kennedy and another with President Johnson. Described later by Doane as a “puffer,” Quase boasted of his “organization” and of his alleged qualifications to undertake the promotion of the interests of Plastic respecting clearance of the registration statement which Ackles had vainly sought on two prior occasions.

Mrs. Freehill was later to testify that eventually a young man came and joined the conference. She had never met him and had never heard his name mentioned. For the record at the hearing she identified Kivitz.

Kivitz canvassed with Doane the inadequacies of the earlier documentation of the Plastic statement and Doane later testified that Kivitz was knowledgeable as to SEC problems. Quase talked of a retainer proposal which would involve a down payment of $20,000 with a further payment of $30,000 upon completion of the SEC filing with some stock allocation on a basis to be the subject of mutual agreement. He suggested that Attorney Doane and Kivitz work up a retainer letter-offer. Attorney Doane and Kivitz thereafter collaborated in the preparation of a proposal which outlined the basis upon which Kivitz would undertake preparation of an adequate registration statement. The retainer called for a certified check to be made payable to Kivitz.

Plastic did not go through with the proposed arrangement. Kivitz filed no papers with the Commission. He received no fee. He divided nothing with Quase. Whatever representations Quase or anyone else might have made to Doane before the October 29, 1964 conference, there was no evidence whatever that Kivitz had any knowledge of such representations or that he had been a party to any prior conferences or that anyone had any authority to speak for him.

Attorney Doane, having secured the Kivitz retainer-offer sought out an ex parte approach to a commissioner the very afternoon after his conference with Kivitz. The substance of what he then said was brought out by the Hearing Examiner as will be seen from Doane’s testimony in our appendix to this opinion. Five years later, Kivitz found himself charged with unethical conduct, largely spelled out of representations of which he had no knowledge and attributable over a period of some two weeks either to or by people who, with one exception, Quase, were utter strangers to him, and who had never even heard his name. He finally stood “convicted” despite his flat denial of culpable complicity.

II

To bolster the case Commission counsel was seeking to establish through the testimony of Attorney Doane, there were offered in evidence statements of Mary Jo Freehill and other witnesses, and tape recordings of telephone conversations between various witnesses. Repeated objections by counsel for Kivitz stressed that such conversations failed to involve Kivitz in any way; it was never developed that he had knowledge of them, and there was nothing to show that Kivitz had been engaged in some joint venture with Quase. The Hearing Examiner overruled various objections observing “all of this evidence is being received subject to connection with the respondent, Mr. Kivitz; absent such a connection, the case would simply fail for want of proof.” There was one person who might have testified, and that was Quase. Although summoned by the Commission staff, Quase appeared and refused to testify unless granted immunity. Counsel for the Commission declined to seek immunity for Quase.

The Hearing Examiner in his Initial Decision viewed the statements attributed to Quase, e. g., as “verbal acts.” Certainly to show the state of mind of Quase, the Examiner might assess those representations as “statements and representations [which] were not hearsay.” Were this a proceeding against Quase, the Examiner might have gone farther in this resort to and acceptance of what Quase had said. See 3d Ed. VI Wigmore, Evidence §§ 1766, 1789. Cf. Proposed Fed.R.Evid.Rules 801(c), 802, 803(3) and comment at 116. Here, however, it is abundantly clear that such evidence as to Kivitz was hearsay which went far beyond merely permissible circumstantial application. It was utilized to establish testimonially as true, the nature and the scope of the representations made by Freehill and Quase.

It is in this phase that we find Kivitz saddled by adverse evidence which never should have been received against him. His alleged complicity was being established from the very testimony, the admissibility of which we reject for it had never been connected up to him. The Supreme Court has pointed out that “men [are not] to be convicted on unsworn testimony of witnesses — a practice which runs counter to the notions of fairness on which our legal system is founded.” Bridges v. Wixon, 326 U.S. 135, 153, 154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103 (1945).

For example, such use was made of the statements by Mary Jo Freehill as she escorted Ackles to the Quase office in mid-October. She told Ackles that Quase could “fix the thing” and that if Ackles were to achieve success at SEC, this was the “way” he would “have to go.” Moreover, we find Quase telling Ackles that he had a “hick” lawyer, that Quase “had a direct line to the White House,” and that if Ackles would “put up some money,” he would have no problem. Indeed, Quase assured Ackles that he might as well quit unless Quase received money “to be put around to various people,” and added that he knew where it should go.

We deem it indisputable that such statements, and others of like import, were used testimonially by the Examiner and later by the Commission to establish that Kivitz contemplated a division of fees with Quase with the intention that the latter was “to pay for political influence to clear the registration statement to be prepared by the respondent.”

Simply to convey the flavor of what was happening here, testimony was received as to Doane’s office conference two thousand miles away when his partner Manweiler returned to Boise with Ackles. Taped telephone conversations between Doane in Washington and Ackles in Michigan and between Quase in Washington and Doane in Boise were admitted. Since there was no suggestion whatever that Kivitz was a party to any such relationships, it is difficult to perceive how Kivitz could possibly protect himself by cross-examination or otherwise. Surely under such circumstances no inference can be drawn, with respect to culpability on the part of Kivitz, no matter what plans Quase might have conceived or what Doane said. Indeed the circumstances, everything considered and viewed in the light of the record in its entirety, even operate to reduce the quality and the weight of such competent evidence as was offered by Doane concerning his own part in the episode. The insubstantiality of the Commission’s showing based upon such evidence is inevitably apparent.

On the other hand, during the 1969 hearing some seven character witnesses attested to the excellent professional reputation of Kivitz. During his eighteen years at the bar there had never been a complaint about his conduct in any respect. Throughout most of that period he had specialized in SEC practice. Never had he shared a legal fee with the promoter, Quase. On the contrary, Quase had referred to Kivitz as counsel, matters such as the formation of a corporation, a domestic relations problem and legal services for a company in which Quase was interested. Kivitz had been compensated in such instances.

Some might say that the good moral character of an attorney has no special bearing on his life pattern until it becomes a point at issue, but it then may become controlling. Mr. Justice Black deemed evidence of good moral character favorably important in Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). Other courts have long been cognizant of the significance in human experience of good moral character. Indeed, the Supreme Court has said that under some circumstances “a man’s reputation may be sufficient, by itself, to raise a reasonable doubt of his guilt.”

We think the Sixth Circuit put it just about right in Klopp v. Securities and Exchange Commission, 427 F.2d 455, 460 (6 Cir. 1970). There the court noted that an exemplary life “will stand a man in good stead when he is accused of shabby or criminal conduct which he denies, and when.he is cast in a contest against accusers whose own lives present nothing special to support assertions of integrity. Character witnesses affirmed Klopp’s good life and reputation until he fell afoul of the SEC.”

So here.

Ill

Of course, we quite understand as to matters arising under the Securities Exchange Act of 1934, that the findings of the Commission as to the facts “if supported by substantial evidence” shall be conclusive, and that the issue of credibility is initially for the hearing examiner to resolve and then for the Commission.

So to say is by no means the end of the matter. Instructed by Mr. Justice Frankfurter we know that we are not barred from setting aside an agency decision when, as a reviewing court, we “cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes,” including the body of evidence opposed to the agency’s view. Certainly mere hearsay and emotional speculation are not to take the place of factual evidence. Rather,

Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.

Here we have not been confronted with an issue which depends upon the Commission’s expertise so often involved in the agency’s administration of its special field.

This was a non-public proceeding arising under Rule 2(e) of the Commission’s Rules of Practice, 17 CFR 201.2(e). We do not say that an administrative agency may not so proceed, Schwebel v. Orrick, 153 F.Supp. 701 (1957), aff’d on other grounds, 102 U.S.App.D.C. 210, 251 F.2d 919, cert. denied, 356 U.S. 927, 78 S.Ct. 716, 2 L.Ed.2d 759 (1958); Herman v. Acheson, 108 F.Supp. 723 (1952), aff’d sub nom., Herman v. Dulles, 92 U.S.App.D.C. 303, 205 F.2d 715 (1953). But we have always viewed an attorney’s license to practice as a “right” which can not lightly or capriciously be taken from him. Laughlin v. Wheat, 68 App.D.C. 190, 191, 95 F.2d 101, 102 (1937); and see Willner v. Committee on Character, 373 U.S. 96, 102, 83 S.Ct. 1175, 16 L.Ed.2d 224 (1963).

This disbarment case involves a lawyer’s reputation in the community, his livelihood, his self-esteem — his “right.” It is not concerned with some specialty developed in the administration of the Act entrusted to the agency. Rather, this case arises in an area we know something about. Every now and then any trial lawyer, any judge, may well draw upon situations he has seen develop within the purview of the observation of Chief Justice Warren in Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959), that often

. the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.

We think it not unreasonable — and here, quite apropos — to appraise what has happened in the words of Judge Major in General Foods Corp. v. Brannon, 170 F.2d 220, 225 (7 Cir. 1948):

. It is true, of course, as asserted by the government, that strict rules of procedure, including the admissibility of evidence, inherent in criminal and common law proceedings are not applicable to administrative proceedings. But no court, so far as we are aware, and we do not propose to be the first, has held in an administrative proceeding or any other kind that one person can be held responsible for the actions and statement of another in the absence of a conspiracy or agreement.

IV

According a fair estimate of the worth of the competent testimony of the witnesses to the case as a whole, taking account of the excellent professional standing of the petitioner, eliminating the inadmissible evidence which erroneously had been read against Kivitz, we “cannot conscientiously find that the evidence supporting” the Commission’s position is “substantial,” as required by 15 U.S.C. § 78y. And see Universal Camera Corp. v. Labor Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Accordingly we are bound to remand the case to the Commission with directions to vacate the order here challenged and to dismiss the proceeding as to Kivitz.

Reversed, for disposition accordingly.

APPENDIX

As Attorney Doane was concluding his testimony, Hearing Examiner Markun stated that he had one or two questions. Then the record shows the following:

HEARING EXAMINER MARKUN: Do I infer correctly that from some of your testimony that when you made your trip to Washington you were not doing it with a view to entering into a serious negotiation with Mr. Quase for his services in this matter, but instead you were coming here with a view to [329] garnering evidence against him for some purpose ?

THE WITNESS: That is right.

HEARING EXAMINER MARKUN: When did this purpose or intention on your part become formulated ?

THE WITNESS: It became formulated when we discussed it right after Mr. Ackles got back from Washington, D.C. He was so upset with the procedures and having talked to Dr. Quase, Dr. Quase had convinced him that the only way he going to get this done was by going through Dr. Quase’s organization and that made him mad. Being a layman, not understanding these things, and that is when he made all of these remarks that made Quase mad back here about dealing with the Russians. He came home and he referred to Mr. Quase as a crook, or something to that effect, and he said either he ought to be put in jail or something. So we spent Saturday and Sunday, after I said I didn’t believe Quase told you that, and we got the tape recording and, apparently, he did. And we spent Saturday and Sunday hunting out in the field and at that time, Ackles was torn between putting his product that he thought was going to be the great benefacting product in mankind for low cost housing, he was going to get that out with the help of a crook or else he was going to catch a crook and try to figure out how to do it some other way. And that is what was bothering him. And Mary Jo implied we might get it done with Quase’s money.

HEARING EXAMINER MARKUN: When you came here, you [330] still were not certain how this would turn out, whether Quase would put up some money or not?

THE WITNESS: No, as far as I was concerned, I was not going to mess with Quase because I wanted to catch him— that was about the time Bobby Baker was going on and we didn’t like the smell of that where I come from.

HEARING EXAMINER MARKUN: If Quase had not asked for $20,000 advance, would you have engaged him?

THE WITNESS: I might have for Ackles, but I would have disassociated my law firm from the operation. I don’t want anything to do with him, anything more than Howard Manweiler did, but I did want to know what he was up to.

HEARING EXAMINER MARKUN: Ackles was willing to put up hard cash to have you come back here?

THE WITNESS: Yes, he was.

HEARING EXAMINER MARKUN: Before coming here, did either you or Ackles advise any Government agency of your purpose in this respect ?

THE WITNESS: No.

HEARING EXAMINER MARKUN: When did you first advise any Government agency of what you were doing?

THE WITNESS: I told Mr. Budge about it.

HEARING EXAMINER MARKUN: How, at what time?

THE WITNESS: After we — after

the morning — the conversation in Quase’s office, on Thursay, October 29. The [331] only previous conversation, if you recall, I had with him was a telephone call. At that time, we had an idea about Quase.

HEARING EXAMINER MARKUN: You told Mr. Budge this after you first called to Michigan or. prior to either of your two phone calls ?

THE WITNESS: I told him that in person. I came out to his office after I talked — after the afternoon conversation in Quase’s office.

HEARING EXAMINER MARKUN: After the afternoon conference, was it before or after either of your calls ?

THE WITNESS: It was in between.

HEARING EXAMINER MARKUN: It was between your two calls to Mr. Ackles?

THE WITNESS: Right.

HEARING EXAMINER MARKUN: On that day?

THE WITNESS: Yes.

HEARING EXAMINER MARKUN: What, precisely, did you tell Mr. Budge that your were doing ?

THE WITNESS: I walked in and said, Homer, what kind of an outfit are you running. He says, what do you mean? I said, Howard Manweiler was just scared to death and he came back here and seen Howard (sic) before, and he said somebody told him they knew what he was doing every minute of the time he was here and he got in a plane and came home thoroughly disgusted.

My client got in a plane and came back to Boise, told [332] me that the only way he could get a SEC registration was to go through an outfit that was going to charge a whole lot of money and that he thought it was unreasonable, he thought it was not entirely within the law and he was upset with your outfit. And I get back here and it gets pretty well confirmed. And he said, what do you mean, you are implying there is bribing going on in the SEC? And I said that that is the implication. They put the money in the right places and distribute the fee in the right areas, I call — that is an implication. He said I want to know all about that. I said, I didn’t come here to give it to you right now, but I will cooperate in any way. He said, you save those tapes and I said that I will. I said that I will be glad to turn over anything you want to your people or the FBI or anybody else. We didn’t know who Quase was from Adam Stall. He said, if he is part of the Bobby Baker operation, if he is an independent, but somebody ought to investigate him. I didn’t hear anything until the people in the SEC — I don’t know which branch contacted me — asked me for the information. And then, I gave the information, as disclosed in the record, to both the SEC officials and the FBI.

This business of Mr. Murray Kivitz, that is an incidental development, a side issue, as far as I am concerned.

[337] Q The only documentary evidence that you drew out of this meeting is a perfectly reasonable offer to a legitimate company, isn’t it?

A Sure, that is what I would expect to come out of that [353].

      . Kivitz was admitted to the bar in the District of Columbia in 1951, had actively practiced before the Commission for some twelve years at the time of the events here in question, and so practiced thereafter. This court stayed the effectiveness of the Commission’s order of suspension pending the instant review.

      . The Commission opinion speaks of “improper fee arrangements involving the proposed use of political influence to secure registration, and by the possible inclusion in the registration statement of financial statements prepared by an accountant willing to ‘stretch a point.’ ” The Commission opinion refers to these aspects as “misconduct,” which provides a “sufficient basis” for the Commission’s disciplinary action.
      There is no evidence that Kivitz at any time or in any way contemplated “proposed use of political influence to secure registration,” no matter what Quase might have said. Moreover, when Attorney Doane and Kivitz worked up the proposed letter retainer, it is apparent that both attorneys agreed that “Houses will provide, at its own cost, all required accounting statements ... as may be needed for the Securities and Exchange Commission registration.”

      . Doane then telephoned to Aekles in Michigan explaining in detail the terms of the proposed retainer letter and a basis upon which outside capital might become available. The tape of the telephone conversation further discloses that Doane reported the dealings so far as having been perfectly above board and across the table. He added that “it really doesn’t look too bad to me because you don’t have to, you don’t have to sign anything or go on any proposition unless it’s agreeable to you.”

      . Michelson v. United States, 335 U.S. 469 at 476, 69 S.Ct. 213, 93 L.Ed. 168 (1948); and see Weedin v. United States, 380 F.2d 657, 660 (9 Cir. 1967); Johnson v. United States, 269 F.2d 72, 74 (10 Cir. 1959).

      . 15 U.S.C. § 78y; see Hughes v. Securities and Exchange Commission, 85 U.S.App.D.C. 56, 61, 174 F.2d 969, 974 (1949) .

      . Cf. Consolo v. Federal Maritime Comm’n., 383 U.S. 607, 618, 619, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).

      . Universal Camera Corp. v. Labor Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).

      . Id. 340 U.S. at 490, 71 S.Ct. at 466. And see Offutt v. United States, 348 U.S. 11, 15, 75 S.Ct. 11, 99 L.Ed. 11 (1954).

      . Cf. Tashof v. Federal Trade Commission, 141 U.S.App.D.C. 274, 276, et seq., 437 F.2d 707, 709, et seq. (1970); WEBB, Inc. v. Federal Communications Commission, 136 U.S.App.D.C. 316, 320, et seq., 420 F.2d 158, 164, et. seq. (1969).

      . “We are bound by the Board’s findings of fact as to matters within its jurisdiction, where the findings are supported by substantial evidence; but we are not bound by findings which are not so supported. [Citations omitted.] The rule as to substantiality is not different, we think, from that to be applied in reviewing the refusal to direct a verdict at law, where the lack of substantial evidence is the test of the right to a directed verdict. In either ease, substantial evidence is evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Appalachian Electric P. Co. v. National Labor R. Board, 93 F.2d 985, 989 (4 Cir. 1938), cited with approval in Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).


source: Caselaw Access Project

author: TAMM, Circuit Judge:

license: Public Domain

text:
    BALTIC INVESTMENT COMPANY, Appellant, v. William Robert PERKINS, Jr., et al.
    No. 71-1601.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 11, 1972.
    Decided Feb. 21, 1973.

      Norment Custis, Washington, D. C., with whom Edwin Shelton and Marshall P. Johnson, Washington, D. C., were on the brief, for appellants.
    Albert Ginsberg, Silver Springs, Md., with whom Joseph H. Schneider and Herbert D. Horowitz, Silver Springs, Md., were on the brief, for appellees.
    Before SIMON E. SOBELOFF, Senior Circuit Judge for the Fourth Circuit, and TAMM and LEVENTHAL, Circuit Judges.

       Sitting by designation pursuant to Title 28, U.S.C. § 294(d).

   TAMM, Circuit Judge:

Appellant brought this action in the district court to clear a purported easement from title to land owned by it in the vicinity of 15th Street and Rhode Island Avenue, N.W. The land in question consists of lots 118 and 119, both owned by appellant, and lot 120, owned by appellee Perkins, in square 210 of the District of Columbia. These lots, along with a fourth not involved in the present controversy (lot 811), all enjoy brief frontage on Rhode Island Avenue between 15th Street on the west and an alley on the east. Lot 118 is the western corner lot, abutting 15th Street on the west as well as Rhode Island Avenue on the south, with lot 119 adjacent to it on the east. Lot 120 is contiguous to the eastern border of lot 119, and lot 811 is contiguous to lot 120 on the east. The purported easement, five feet in width, runs across the northern portion of lots 118 and 119 to the benefit of the dominant estate, lot 120, thereby permitting access from 15th Street to the rear of the premises located on that lot. .

Appellee answered the complaint by claiming, in the alternative, that he had a deeded right of way across the specified portions of lots 118 and 119 or that he had acquired a prescriptive easement for such use. Appellee thereafter moved for summary judgment, relying upon certified copies of title records filed with the recorder of deeds for the District of Columbia, a statement of material facts as to which there was no genuine issue, and sworn affidavits of appellee — who has owned the property since 1947 — and Blanche Richardson — who has continuously been employed on the premises since 1924. Appellant, after receiving additional time to respond, filed an opposition to appellee’s motion which consisted primarily of points and authorities in support of its opposition but which was unaccompanied by any documents, depositions, answers to interrogatories or affidavits. The trial judge granted appellee’s motion.

Since the reason for granting summary judgment is not apparent, we must examine both claims asserted by appellee. He first claims a deeded easement for right of way across lots 118 and 119. A brief examination of the title records before us illustrates that this contention cannot stand. The land was once owned by Webster Edgerly,- who subdivided the plot into the three lots in question in 1906. Lot 119 was conveyed in 1907 by duly recorded deed, with an easement for right of way reserved in the grantor and his heirs and assigns. In 1908, again by duly recorded deed, lot 120 was conveyed by Edgerly. While the lot was conveyed together with all “easements, privileges and appurtenances to the same belonging,” nothing in the deed indicated that an easement for right of way over lot 118 was transferred, nor was any supplementary evidence presented to that effect. Thus, when Edgerly ultimately transferred lot 118 in 1920, although words designed to reserve an easement for the benefit of “other lots in said subdivision” appeared in the deed, the easement failed. A grantor cannot, by one and the same conveyance, grant a fee simple estate in a lot to one party while reserving an easement in a stranger to the transaction. See Dawson v. Western Maryland R. Co., 107 Md. 70, 68 A. 301 (1907); Herbert v. Pue, 72 Md. 307, 20 A. 182 (1890); 2 American Law of Real Property § 8.29 (A. J. Casner ed. 1952); and 2 G. Thompson, Commentaries on the Modern Law of Real Property § 334 (4th ed. 1961). Furthermore, no evidence was presented which would indicate that the easement had been transferred to appellee’s predecessors in title prior to the sale of lot 120 and therefore that the words of limitation in the deed to lot 118 acted as an exception.

Thus, the trial judge necessarily found that appellee had acquired title prescriptively through open, notorious, continuous and adverse use for the statutory period. Kogod v. Cogito, 91 U.S.App.D.C. 284, 200 F.2d 743 (1952). The touchstone of his decision is provided in Fed.R.Civ.P. 56(e):

[A]n adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added.)

Thus, on the basis of the information filed by the parties and the inferences which may fairly be drawn therefrom, we must determine whether the trial judge was justified in concluding that there was no genuine issue as to any material fact, as opposed to mere formal issues which are unsupported in the record. See Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766, 772 (1950).

It has been noted that the record deeds for Edgerly’s conveyance of both lots 118 and 119 contained words attempting to reserve an easement in favor of other lots in the subdivision. Successive conveyances followed, culminating in appellant’s acquisition of lot 118 in 1963 by way of deed containing reference to the easement, and lot 119 by way of deed in 1964, also containing reference to the easement. Appellee’s father acquired lot 120 in 1919 from Edgerly’s successors in interest and appellee inherited the lot in 1947. According to the uncontradicted affidavits of Blanche Richardson and appellee, he and his father first used lot 120 as their residence for approximately 20 years. In addition, during that time and continuously thereafter the property has been used as a medical office by the family. Since at least 1924 the purported easement has continuously been used for ingress and egress to the rear (north) of the premises by appellee, his father, their employees, tradesmen, deliverymen, trash collectors and others. The alley is paved for its entire length, and from at least 1924 until 1965 it was bordered on both sides by a wooden fence eight feet in height “with access doors to lots 118 and 119 and full use into Lot 120.” Since the destruction of the fence in 1965, painted lines have marked the dimensions of the alley.

Appellant has done nothing to refute the fact that appellee and his father occupied lot 120 and used the purported easement for access to that property openly, notoriously and continuously for more than 40 years. Rather, he contests the adversity of use, relying solely upon a letter ostensibly written by Webster Edgerly in 1919 to persons unknown which was discovered, unacknowledged, in the title records relating to lot 120. The letter was apparently written in response to concern expressed by a representative of appellee’s father that no agreement had been entered for an easement for right of way over lot 118. In the letter Edgerly discussed his plans for disposing of the only lot in the subdivision which remained unsold (lot 118). The letter is not in the least supportive of appellant’s argument that “by deduction the letter can only be interpreted to indicate that [appellee’s father] . . . was using the right of way by permission. The permission thus granted has continued until today.” Quite the contrary, the concluding sentence strongly implies adverse use:

You and [appellee’s father] must understand that he has no legal or equitable remedy in this claim, or desire for a right of way

Moreover, even if we were to accept appellant’s argument, the license or permission to use the property was revoked when it was transferred by Edgerly in 1920.

While the burden of establishing a prescriptive easement is quite obviously on he who asserts the interest, where the claimant has made a prima facie showing of the essential elements it is incumbent upon the landowner to introduce contradictory evidence. Indeed, many jurisdictions further hold that where an alleged easement has been used openly, notoriously and continuously for the statutory period, the burden is on the landowner to prove that the use was permissive. See, e. g., Clayton v. Jensen, 240 Md. 337, 214 A.2d 154 (1965). Here we are faced with open, notorious and continuous use for a period far exceeding that required by statute. Appellee succeeded in prima facie establishing the elements of a prescriptive easement, and the only material introduced by appellant to overcome this evidence not only failed to support appellant’s claim, but actually served to enhance the contention of appellee. The trial judge was fully justified in granting appellee’s motion for summary judgment.

Affirmed.

      . Apparently in opposition to appellee’s statement of material facts as to which there is no genuine issue, which primarily sought admissions drawn from an abstract of title filed by appellee, appellant filed a motion to strike. This motion was properly denied by the trial judge as unresponsive and without merit. See U.S. District Court Rules — D.C.Rule 9(h) (1970).

      . It is not entirely clear from the record whether the easement was intended to run in favor of lot 118, 120 or both, although the latter is the most logical interpretation.

      . With respect to the applicability of Maryland law and common law to the District of Columbia, see D.C.Code § 49-301 (1967).

      . It is unnecessary for us to resolve the apparent conflict under the facts of this case between D.C.Code § 12-301 (1967), which provides a 15 year statute of limitations, and D.C.Code § 16-3301 (1967), which provides a 20 year statutory period, because on the record appellant has not successfully refuted appellee’s evidence of open, notorious and continuous use for a period in excess of 40 years.

      . Affidavit of William Robert Perkins.

      . Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at 5.

      . 2 G. Thompson, Commentaries on the Modern Law of Real Property § 345 (4th ed. 1961).

      . Id. § 350.

      . Accord, Waidlich v. Farmers Bank of Mercersburg, 149 F.Supp. 741 (M.D.Pa.1957); Walter G. Brix, Inc. v. Brown, 145 Cal.App.2d 177, 302 P.2d 74 (1956); Stetson v. Youngquist, 76 Mont. 600, 248 P. 196 (1926); Hall v. Backus, 92 W.Va. 155, 114 S.E. 449 (1922); and Bridwell v. Beerman, 190 Ky. 227, 227 S.W. 165 (1921).

      . Appellant’s alternative claim that we use our equitable powers to relocate the easement is without merit for reasons recently set forth in Fields v. District of Columbia, 143 U.S.App.D.C. 325, 443 F.2d 740, 745 (1970):
      The troublesome part of such disposition, however, is that it would take away appellants’ rights . . . without their agreement and contrary to their desires and substitute an easement they do not desire. Such decree crosses the boundaries of equitable relief and the relief amounts to the reordering of property rights between private parties.


author: PER CURIAM: MacKINNON, Circuit Judge,

text:
    NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent (two cases). FRIENDS OF THE EARTH, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Commonwealth of Kentucky, Intervenor.
    Nos. 72-1522, 72-1598, 72-1810, 72-1941, 72-1982, 72-1985, 72-2028 and 72-2159.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 22, 1973.
    Decided Jan. 31, 1973.

      David G. Hawkins, Washington, D. C., for petitioners.
    Asst. Atty. Gen. Kent Frizzell and Edmund B. Clark, Atty., Dept, of Justice, for respondent.
    Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
   ORDER

PER CURIAM:

These causes came on for consideration of petitioners’ motion for summary reversal, and the court heard argument of counsel. We must initially determine whether we have jurisdiction over all óf these consolidated cases. Section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 1857h-5(b) (1) (1970), provides that a petition for review of the Administrator’s action in approving or promulgating any implementation plan “may be filed only in the United States Court of Appeals for the appropriate circuit.” We agree with petitioners and with the Court of Appeals for the First Circuit, see Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 1 Cir., 465 F.2d 492 (1972), that by the phrase “the appropriate circuit” Congress did not intend that all suits involving approval of state implementation plans be brought in the judicial circuit where the state is located. Instead, Congress intended to adopt a flexible approach to determine which circuit is appropriate, and application of this approach to the facts of these cases and the legal issues we are presently called upon to decide permits us to hear all of these consolidated cases.

First, elsewhere in the Act, in a provision concerning judicial review of another kind of action by the Administrator, Congress expressly provided that judicial review shall be in the “court of appeals for the circuit which includes such State.” See Section 110(f)(2)(B), 42 U.S.C. § 1857e-5(f)(2)(B). That it did not use the same language in Section 307(b)(1) and instead used the vague phrase “the appropriate circuit” indicates that Congress intended the latter phrase to mean something other than the more specific review provision in Section 110(f)(2)(B). Secondly, we might note that failure to interpret Section 307(b)(1) in a flexible manner would produce some anomalous results. The Administrator has informed us that implementation plans in several metropolitan areas cover jurisdictions falling within several circuits. In our own metropolitan area of the District of Columbia and the surrounding Virginia and Maryland suburbs, for. example, adoption of the Administrator’s narrow interpretation of the statute would require review of the Administrator’s approval of the D. C. metropolitan area implementation plans to take place in both our own court and the Court of Appeals for the Fourth Circuit. We doubt that Congress intended such a result, especially in light of the indication elsewhere in the Act of a strong congressional concern for coordinated decision-making with respect to metropolitan areas crossing over several jurisdictions. See 42 U.S.C. §§ 1857C-1, 1857C-2.

'Applying this flexible approach to the cases presently before us, it is clear from the record that all of these cases raise identical legal issues. None of these issues involve facts or laws peculiar to any one jurisdiction; rather, all concern uniform determinations of nationwide effect made by the Administrator. Requiring these cases to be prosecuted in the several circuits will only lead to delay on a question where time is literally of the essence, and will needlessly tax the agency’s legal resources. We therefore hold that we have jurisdiction to hear these cases.

We also note, before considering the merits, that regardless of whether this court has jurisdiction to review the approval of implementation plans of jurisdictions other than the District of Columbia, all parties agree that we have jurisdiction to review the legality of the Administrator’s approval of the implementation plan for the District of Columbia and surrounding Maryland and Virginia suburbs, and should our jurisdiction as to other areas successfully be challenged, our order is intended to remain in force limited to the local area.

Turning to the merits, we find that the Administrator acted in the best of faith in attempting to comply with the difficult responsibilities imposed on him by Congress. Nevertheless, he did not conform to the strict requirements of the Clean Air Act of 1970 in permitting several states to delay submission of transportation control portions of their implementation plans until February 15, 1973, and in granting extensions until mid-1977 for attainment of the national primary ambient air standard without following the procedures established in Section 110(e), 42 U.S.C. § 1857c-5(e). The combined effect of these unlawful actions has been to interfere with the congressional purpose of attaining clean air by a date certain, May 31, 1975, subject only to certain limited and well defined statutory extensions. The Act plainly does not permit extensions of the statutory time for submission by each state of an implementation plan which will permit attainment of the standards by 1975. Whether or not the technology for implementation of or compliance with the plan is available is a matter for the grant of extensions under Sections 110(e) and (f) after the plan is filed.

In order to remedy these violations of the Act, the Administrator and the states must return to the procedures and the timetable established by the Congress.

Accordingly, it is ordered by this court that:

(1) The Administrator shall formally rescind, through notice to the states and through publication in the Federal Register, the February 15, 1973 extension granted to several states to submit the transportation control portions of their implementation plans.

(2) The Administrator shall formally rescind, through notice to the states and through publication in the Federal Register, the extension granted to several states to delay implementation of their plans or portions thereof until May 31, 1977.

(3) The Administrator shall inform all states concerned, by direct notice and through publication in the Federal Register, that all states which have not yet submitted an implementation plan fully complying with the requirements of the Clean Air Act of 1970 must submit such a plan by April 15, 1973. That plan must satisfy each and every requirement of Sections 110(a)(2)(A) through (H) if it is to be approved by the Administrator. In particular, it must provide for the attainment of the primary standard as expeditiously as practicable but in no case later than May SI, 1975, and it must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including, but not limited to, land-use and transportation controls.”

(4) The Administrator shall, within two months after the date required for submission of a plan under paragraphs (3) or (9) of this order, approve or disapprove such plan or each portion thereof pursuant to the requirements of Section 110(a)(2).

(5) If any state fails to comply with the requirements of paragraphs (3) or (9) of this order, or if any state plan is determined by the Administrator not to be in accordance with the requirements of Sections 110(a)(2)(A) through (H) and with the requirements of paragraphs (3) or (9) of this order, the Administrator shall prepare, publish and promulgate regulations setting forth an implementation plan, or portion thereof, for the noncomplying state, following the procedures established in Section 110(e) except that any such regulation shall be promulgated within four months after the date required for submission of such plan under paragraphs (3) or (9) of this order.

(6) The Administrator shall not grant any state an extension for attainment of the primary standard unless he first complies with the procedures established in Section 110(e), namely:

He must first have before him a plan which provides for attainment of the national ambient air quality primary standard by May 31,1975.
He must determine, on the basis of a submission by the governor of the state, that one or more emission sources (or classes of moving sources) are unable to comply with the requirements of such plan for the reasons set out in Section 110(e) (1) (A).
He must determine that the state has considered and applied as a part of its plan reasonably available alternative means of attaining the primary standard and has justifiably concluded that attainment of the primary standard by May 31, 1975 cannot be achieved.
He must determine that the state plan provides for application, by May 31, 1975, of the requirements of the plan which implement the primary standard to all emission sources other than the sources (or classes) which he has determined are unable to comply.
Finally, he must determine that the state plan provides for such interim measures of control of the sources (or classes) which he has determined are unable to comply with the implementation plan as are reasonable under the circumstances."

(7) The Administrator shall permit the public to comment on any state plan submitted pursuant to paragraphs (3) or (9) of this order and on the request by the governor of any state for an extension of the date for attainment of the primary standard beyond May 31, 1975. Such opportunity may be limited to the filing of written comments without the necessity of a hearing.

(8) The Administrator shall, in approving or disapproving, any state plan submitted pursuant to paragraphs (3) or (9) of this order and in approving any extension for attainment of the primary standard beyond May 31, 1975, state his reasons for taking such action, considering both the material submitted by the states and that submitted by the public, see Kennecott Copper Corp. v. Environmental Protection Agency, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 87-88, 439 F.2d 584, 597-598 (1971).

(9) In view of the competing contentions with respect to whether or not each state plan approved by the Administrator provided for maintenance of the primary and secondary standards beyond the May 31, 1975 attainment date, and in view of the absence of any definite indication in the present record as to whether or not such a state-by-state determination was made, the Administrator shall, within 30 days from the date of this order, review the maintenance provisions of all state implementation plans presently approved. Those plans which do not provide for measures necessary to insure the maintenance of the primary standard after May 31, 1975, and those plans which do not analyze the problem of maintenance of standards in a manner consistent with applicable regulations, see 40 C.F.R. § 51.12(a) (1972), shall be disapproved. In such a case, the state should be directed to prepare a new implementation plan for maintenance of standards by April 15, 1973. All new plans for maintenance shall be dealt with by the Administrator in the manner set out in paragraphs (4) and (5) of this order.

It is so ordered.

Circuit Judge MacKinnon’s concurring statement follows.

MacKINNON, Circuit Judge,

concurring:

The foregoing order is technically in conformance with the statute but in some respects it ignores reality. The statute contemplates and requires each state to submit transportation control plans as part of their implementation plans to enforce primary standards of' air quality within certain fixed time limits. The Administrator is authorized to extend the time limits “[u]pon application of a Governor of a State at the time of submission of any plan implementing a national ambient air quality primary standard ... if after review of such plan the Administrator determines that” the necessary technology or other alternatives will not be available so as to permit attainment of the objectives within the earliest statutory time limits. Section 110(e). (Emphasis added.) In the event any state fails to submit an implementation plan within the time prescribed the Administrator is directed to prepare an implementation plan for the State. Section 110(c).

Recognizing this design of the Act, and the existing state of the technology necessary to achieve the desired results within the earliest statutory time limits, the Administrator concluded that if the duty devolved upon him he would be unable to develop supportable plans for the states in question. The reasonableness of this conclusion is not denied. The Administrator stated his position in 37 Fed.Reg. 10844 (1972):

The Environmental Protection Agency had already begun an assessment of the extent to which various transportation control measures, including motor vehicle inspection and installation of emission control devices on in-use automobiles, could be expected to produce improvements in air quality, but it was apparent that the results would not be available within the time allowed for development of State plans. Accordingly, the States were advised that adoption of transportation control schemes could be deferred beyond the statutory deadline for submittal of implementation plans but that State plans would have to define the degree of emission reduction to be achieved through transportation control measures and identify the measures being considered.

In reaching this practical conclusion the Administrator did not walk through all the steps provided by the statute and our order requires that he do so. Petitioners do not deny that complete workable plans for all the states are not presently feasible, but they contend something might be gained by the states and the agency towards achieving the results sought by the Act if the states are required to literally comply with all the formal steps provided by the statute; particularly those contained in Section 110(e)(2) which require states to implement the primary standards by interim measures of control where final implementation plans are technically infeasible. The extent to which compliance with these requirements might produce benefieial results is not known, but since something might conceivably be gained, I concur in the order.

       These states should include all those listed in paragraphs 1, 2 and 5 of the stipulation between petitioners and the EPA in Addendum to Petitioners’ Motion for Summary Reversal.


author: PER CURIAM: TAMM, Circuit Judge,

text:
    TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 71-1469.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 8, 1972.
    Decided Feb. 1, 1973.

      Alan S. Gordon, New York City, with whom Patricia E. Eames, New York City, was on the brief, for petitioner.
    William R. Stewart, Atty., N.L.R.B., of the bar of the Supreme Court of Indiana, pro hac vice, by special leave of court, with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., was on the brief, for respondent. Corinna Metcalf, Atty., N.L.R.B., also entered an appearance for respondent.
    Before BAZELON, Chief Judge, and TAMM and ROBINSON, Circuit Judges.
   PER CURIAM:

We are called upon to review the twelfth in a series of orders of the National Labor Relations Board, issued in what by now seems a quixotic attempt to convince J. P. Stevens and Company to respect the rights conferred on its employees by section 7 of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970). Apparently believing that the Board should try harder— rather than more often — the Textile Workers Union of America has petitioned for review of the Board’s refusal to order more stringent remedies. Because we find the Board’s stated reasons for refusing the requested relief inadequate, we remand the ease for further consideration.

Following the customary charge, complaint, and hearing, the Trial Examiner below issued an opinion finding that J. P. Stevens, a textile manufacturing concern with numerous plants located in several states, had committed violations of sections 8(a)(1) and (3) by discriminatorily reducing the overtime work afforded one employee at its Statesboro, Georgia, plant, and violations of sections 8(a)(1), (3), and (4) by discriminatorily refusing to grant a wage increase and promotion to another employee at the same plant. The Trial Examiner’s recommended order would have required the company to cease and desist, to take affirmative action to make whole the two employees who suffered the unfair labor practices, and to post penitent notices at its Statesboro plant for a period of 60 days.

The Union filed exceptions requesting further affirmative relief, and those exceptions were considered by a three-member panel acting for the Board. Their opinion purported to adopt the “findings, conclusions, and recommendations of the Trial Examiner,” with one “correction,” but actually culminated in an order considerably more favorable to the Union than that recommended by the Examiner. The panel based this expansion squarely on the company’s unfair labor practice history:

Upon review of all the relevant factors herein, including Respondent’s companywide history of extensive unfair labor practices as reflected by our Decisions in [Stevens I through XI), we are persuaded that “the conventional remedies would not be adequate to disabuse the employees of the effects of Respondent’s flagrant conduct” in the instant case.

But the Board refused the four Union requests that had the greatest potential. Those requests, and the Board’s reasons for denying them, are best presented by quoting the Board’s opinion:

Inasmuch as there has been no evidence or finding in the instant matter that Respondent committed independent violations of Section 8(a)(1), we decline to adopt the Charging Party’s requested Notice to Employees.
For reasons stated in Stevens (VIII), we also deny the Charging Party’s request to extend the scope of the Order herein so as to include all of Respondent’s plants in North Carolina; South Carolina, and Georgia.
Likewise, we deny the Charging Party’s request for a list of the job classifications, wage rates, and length of tenure of Respondent’s employees because, unlike a list of employees’ names and addresses, such a list will not tend to facilitate the Union's communications with these employees.
Moreover, because this case does not involve a refusal to bargain by Respondent, and in light of our policy announced in Ex-Cell-O Corporation, 185 NLRB No. 20, reversed and remanded on this point, 449 F.2d 1046 (C.A.D.C., 1971), we reject the Charging Party’s request that Respondent make, whole all of its employees for those contractual benefits which speculatively might have accrued to them had Respondent not committed unfair labor practices and had a collective-bargaining agreement been concluded.

As is apparent from the italicized language in this statement of reasons, the Board justified its refusal solely by pointing out what was not involved in this particular case. The apparent reliance on the reasoning of J. P. Stevens VIII, as a ground for refusing multistate relief, does not alter this fact. In Stevens VIII, the Board refused multistate relief on the basis of a footnote, which stated:

We do not think that the circumstances of this case justify an extension of the Order beyond the plants located in the Roanoke Rapids area as recommended by the trial examiner.

Under section 10(c) of the National Labor Relations Act, upon finding that an unfair labor practice has been committed, the Board must issue an order “requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action ... as will effectuate the policies of this subchapter.” The Board’s power under this section is a “broad discretionary one, subject to limited judicial review,” Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964).

But that discretion is founded on the fact that the Board derives from its experience advantages in determining how best to relate “remedy to policy.” Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). It does not extend further and exempt the Board from the requirement that it support its actions with adequate reasons. In this case, the Board has allowed itself to lapse into a tempting, and easier, way of disposing of its workload. By choosing to ignore J. P. Stevens’ history when considering the Union’s objections, it has provided itself with two versions of the relevant facts: one to use in rebutting the Union’s claims and the other to use in supporting its order.

The package of remedies chosen by the Board in this case may be entirely appropriate, or at least within the rather wide limits of its discretion. There is no question that the Board has the power to take J. P. Stevens’ history of recalcitrance into account in designing its order. Indeed, it has an obligation to do so. See N.L.R.B. v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969); International Union of Electrical Workers v. N.L.R.B., 426 F.2d 1243 (1970).

But the Board’s reasons for its choice of remedies in this case are at least incomplete, and potentially inconsistent. This is no minor problem. It forces us to choose between a de novo selection of an appropriate set of remedies and an uncritical acceptance of the Board’s choice. Neither of these approaches would comport with the command of the National Labor Relations Act. Although the courts will not lightly interfere with Board orders, the Board is under a complementary obligation to set forth in rational fashion the relationship between the case and the remedy it orders.

The Board failed to explain why J. P. Stevens’ history of unfair labor practices does not warrant the broader relief that the Union has requested. It chose instead to explain a case that was not before it: one in which a history of many years of obstinance was lacking. Accordingly, the petition for review is granted, and the case is remanded to the Board for further proceedings not inconsistent with this opinion.

TAMM, Circuit Judge,

dissenting:

I would affirm the action of the Board in this case. It is my view that the Board has acted completely within its legal authority and power under § 10(c) of the National Labor Relations Act, under which section the Board’s power is a “broad discretionary one, subject to limited judicial review.” Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964).

      . J. P. Stevens & So., Inc., 186 NLRB No. 34; Black Hawk Corp., 183 NLRB No. 34; J. P. Stevens & Co., Inc., 183 NLRB No. 5, enforced, 461 F.2d 490 (4th Cir. 1972); J. P. Stevens & Co., Inc., 181 NLRB No. 97, enforced in part and denied in part, 449 F.2d 595 (4th Cir. 1971); J. P. Stevens & Co., Inc., 179 NLRB No. 47, enforced, 441 F.2d 514 (5th Cir. 1971); Black Hawk Corp., 177 NLRB No. 120, enforced in part and denied in part, 431 F.2d 900 (4th Cir. 1970); J. P. Stevens & Co., Inc., 171 NLRB No. 163, enforced, 417 F.2d 533 (5th Cir. 1969); J. P. Stevens & Co., Inc., 167 NLRB No. 38, enforced with modifications, 406 F.2d 1017 (4th Cir. 1968); J. P. Stevens & Co., Inc., 167 NLRB No. 37, enforced with modifications, 406 F.2d 1017 (4th Cir. 1968); J. P. Stevens & Co., Inc., 163 NLRB No. 217, enforced, 388 F.2d 896 (2d Cir. 1967); J. P. Stevens & Co., Inc., 157 NLRB 869, enforced with modifications, 380 F.2d 292 (2d Cir. 1967) (hereinafter designated as Stevens I through Stevens XI).

      . The Union is, of course, a “party aggrieved” within the meaning of § 10 (f), 29 U.S.C. § 160(f) (1970). See American Federation of Labor v. N. L. R. B., 103 F.2d 933 (D.C.Cir.1939).
      The Board has not cross-petitioned for enforcement, and J. P. Stevens is not a party to this suit. Although this casts a shadow over the Union’s request that we enter and enforce our own order in this case, our remand disposes of any need to elaborate on this point.

      . 190 NLRB No. 139 (1971). The order was explicitly limited to J. P. Stevens’ Statesboro plant, but did provide four new remedies: Union access to bulletin boards for one year; a list of the names and addresses of all employees, to be updated for one year; a revised notice to be read to the employees on company time; and the mailing of that notice to the homes of all employees.

      . Id. at n. 3. The Board concluded that it should enter an order conforming to that in Stevens V, J. P. Stevens & Co., Inc., 171 NLRB No. 163, enforced, 417 F.2d 533 (5th Cir. 1969). Aside from the defects in the Board’s reasoning that are discussed in the text, this determination raises an additional problem. It is not clear that an order issued in Stevens V is “adequate”— to use the Board’s word — in Stevens XII. On remand, the Board should undertake to explain this problem as well.

      . 190 NLRB No. 139, at n,3 (emphasis and bracketing added).

      . 181 NLRB No. 97 (1970), enforced in part and denied in part, 449 F.2d 595 (4th Cir. 1971).

      . Id. at n.1 (emphasis added).

      . 29 U.S.C. § 160(c) (1970).

      . See International Union of Electrical Workers v. N. L. R. B., 426 F.2d 1243, 1249 (D.C.Cir.1970); SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

      . See J. P. Stevens & Co., Inc., v. N. L. R. B., 441 F.2d 514 (5th Cir. 1971).


author: McGOWAN, Circuit Judge: BAZELON, Chief Judge,

text:
    UNITED STATES of America, Appellant, v. Gwendolyn E. JOHNSON.
    No. 71-1715.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 7, 1972.
    Decided Feb. 14, 1973.
    As Amended May 11, 1973.
    James A. Adams, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and Brian W. Shaughnessy, Asst. U. S. Attys., were on the brief, for appellant.
    Edwin C. Brown, Alexandria, Va., for appellee.
    Before BAZELON, Chief Judge, and McGOWAN and TAMM, Circuit Judges.
   McGOWAN, Circuit Judge:

The issue raised by the Government’s appeal in this prosecution for federal narcotics offenses, 26 U.S.C. § 4704(a) and 21 U.S.C. § 174, is the correctness of the trial court’s pretrial suppression of evidence of narcotics found in appellee’s purse. We hold that the order granting appellee’s motion to suppress was in error; and we reverse.

I

On or about January 5, 1971, members of the Narcotics Branch of the Metropolitan Police Department obtained a warrant authorizing a search for narcotics of the entire apartment of one James L. Stewart, subsequently indicted as a codefendant with appellee. The warrant was issued upon an affidavit which recited that within the preceding two weeks information had come to the police from a reliable informant that narcotics were being sold in Stewart’s apartment, and that on January 5 an agent of the Department had purchased narcotics at that apartment. In the early morning of January 6, approximately seven members of the Department gained access to Stewart’s apartment building and, leaving some of their party outside, proceeded to his apartment, knocked, and announced their identity and purpose. The officers waited nearly a minute, then heard a noise within the apartment followed by the sound of a window breaking, whereupon they forced the door open.

The first officers to gain entry observed Stewart apparently attempting to escape from the apartment through the bedroom window. He was apprehended, and, after the bedroom search revealed narcotics, was arrested. Other officers had entered the living room, where appellee was found sitting on the couch. A purse, which was on a coffee table in front of the couch, was immediately searched, yielding narcotics, and appellee was placed under arrest. Before entering Stewart’s apartment, the police detail had been advised that appellee was a visitor on the premises.

The District Court granted appellee’s motion on the ground, as stated by it on the record, that the search of the purse preceded her formal arrest, and therefore could not be sustained as incident thereto. Since, in ruling on her motion, the trial judge assumed probable cause existed to arrest appellee prior to the search of her purse, we need not inquire into its existence even though the crime for which he believed she could be arrested is unclear. Neither do we find it necessary to pursue the question of whether the formal placing under arrest of a criminal suspect is invariably a condition precedent to a lawful search incident to an arrest, although we note the trial judge’s view is at variance with the decisions in this circuit. What we do find is that, in the circumstances disclosed by this record, the search of appellee’s purse was lawful as having been within the scope of the warrant to search the premises.

II

The prohibition of the Fourth Amendment is against “unreasonable” searches and seizures. In determining whether under the circumstances of this case the search of appellee’s purse violated that standard, the protection of individual privacy embodied in the Fourth Amendment must be weighed against the public interest in effective law enforcement with respect to narcotics violations. The specific question for resolution is whether the scope of the search warrant embraced an object in the ap- . parent possession nf_a person not an oceqpflnt. n.f_t.ha — n.ramises searched. Although the District Court did not expressly consider this issue, its suppression of the evidence contained the implicit holding that appellee’s purse fell without the warrant.

Turning first to the privacy element of the question, we note that the search was of a purse resting separately from the person oUits owner. As such, it was not being “worn” by appellee and thus did not, constitute an extension of her person so as to make the search one of her person. United States v. Teller, 397 F.2d 494 (7th Cir. 1968); United States v. Riccitelli, 259 F.Supp. 665 (D.Conn.1966). The invasion of appellee’s privacy was therefore of a lesser degree than if she had been subjected to a search of her clothing or of objects being held by her.

On the Government’s side of the balance lies both the information presented in the affidavit supporting the warrant, indicating that Stewart’s apartment was a place where narcotics were sold as well as stored; and the delay, the suspicious noises that preceded the executing officers’ entry into the apartment, and the apparent effort of Stewart to escape through the bedroom window, all suggesting attempts to thwart discovery of the illegal activity that the police suspected was being carried out on the premises. With emphasis on the limited nature of the circumstances presented, we hold that the search of appellee’s purse was consistent with the demands of the Fourth Amendment. Under these facts, the police could reasonably have — h&Ueved that items sought and described in the warrant naü peen concealed in the nurse. and, notwithstanding appellee’s status as a visitor on the premises, could have searched the purse in nnrsm.t.of items for winch the warrant issued

In Walker v. United States, 117 U.S.App.D.C. 151, 327 F.2d 597, 600 (1963), cert. denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964), this court permitted the search of a wallet and bag held by one who shared occupancy of the residence searched under authority of a warrant, holding that a contrary result “would be to suggest that a warrant to search premises may be frustrated by the device of simply picking up the guilty object and holding it in one’s hand.” Similarly here, frustration of the warrant’s purpose should not be permitted where the facts reveal that to be the likely result were the purse not searched. See Clay v. United States, 246 F.2d 298, 304 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); Nicks v. United States, 273 A.2d 256 (D.C.Ct.App.1971); and dictum in United States v. Festa, 192 F.Supp. 160, 163 (D.Mass.1960) (Wyzanski, J.); State v. Wise, 284 A.2d 292, 294 (Del.Sup.Ct.1971).

Accordingly, we reverse the District Court’s order of suppression, and remand the case for trial.

It is so ordered.

BAZELON, Chief Judge,

concurring in part and dissenting in part:

I agree that this suppression order cannot be sustained on the record before us. I do not agree, however, that this record supports a holding that the evidence was admissible. I would instead hold that the search of Mrs. Johnson’s purse was not authorized by the search warrant, and would remand for a determination whether the police had probable cause to arrest Mrs. Johnson when they initiated the search of her purse.

The majority says that “The specific question for resolution is whether the scope of the search warrant embraced an object in the apparent possession of a person not an occupant of the premises searched.” Answering that question in the affirmative, the court rules the contents of the purse admissible and reverses the trial court.

In my view, the principle the majority applies would be applicable only if Mrs. Johnson had not been in apparent possession of her purse. But she was. Moreover, the police arrested her for possession of the contraband immediately after discovering it and without verifying ownership of the purse. I think that these facts sufficiently establish that the police knew that they were invading Mrs. Johnson’s “reasonable expectations of privacy.” The search of the purse was thus not directed at the owner and occupant of the apartment, but at Mrs. Johnson.

The warrant, however, authorized the search of an apartment that was, in the words of the supporting affidavit, “occupied by John Doe alias Pete described as a Negro male, 49-50 yrs. 165 lbs., 5'6", Medium Complexion.” I do not doubt that this authorized the search of “Pete” as well as his apartment. But the warrant did not authorize a search of an individual the police knew to be a mere visitor in the apartment.

Nor, in my view, did the affidavit contain sufficient information to justify the issuance of such a warrant. The Supreme Court has told us that “the Fourth Amendment protects people, not places.” One does not give up that protection by simply entering the private residence of another. Giving effect to this personal guarantee may make the drawing of lines difficult, but we must make the attempt.

I would hold that a warrant to search individuals who are not occupants of an apartment may issue only if the police establish probable cause to believe either that any individual found in the apartment possessed seizable material, or that certain identified individuals possessed seizable materials. The former might be established, to give one example, by a showing that the apartment was a “shooting gallery,” that is, a place used exclusively for the injection of narcotics.

But this warrant did not contain information from which one might reasonably infer that any non-occupant discovered in the apartment was subject to search. The incorporated affidavit recited only (1) that a reliable informant had reported that “Pete” “was selling illicit narcotic drugs within” the apartment, (2) that the informant “had purchased” such drugs in the past, and (3) that the officers had taken the informant to the premises, sent him in, and the informant had returned with narcotics. Probable cause to believe than any non-occupant found in the apartment possesses seizable objects is not established merely by showing that someone has purchased narcotics in the apartment two or more times. The reviewing magistrate could not have determined from the affidavit whether offenders made up ninety percent of the visitors to the apartment or one percent.

The majority seems to view this as a single search because, despite the fact that it included two people, it covered a single place. In so doing, it constructs what is to me a new exception to the warrant requirement, applicable to any individual who happens to be in that place. The court first states that the police may search wherever the objects of the warrant might reasonably be, including places in which they might have been hidden during the moments between the announcement of the search and the actual entry. It then recognizes the fourth amendment rights of those who are known to be merely present in the premises by applying a balancing test. Under that test, we would weigh the degree of the “invasion” of the bystanders’ rights against the Government’s justifications for believing that the objects of the warrant might have been transferred to them.

But the Fourth Amendment already requires that all searches be “reasonable.” The majority has, in effect, deleted the requirement of a warrant issued upon probable cause to believe that the bystander has seizable objects. Exceptions to the warrant requirement are not new, but this one has a second troublesome aspect. It appears that the court has not prefaced this one with a requirement that the police have probable cause to believe, for example, that the bystander has seizable objects that, because of the threat of destruction must be immediately seized. Instead, it proceeds immediately to a consideration of whether the degree of the invasion of the bystander’s rights was “reasonable.” I know of no authority for searching an individual, or that space in which he has a “reasonable expectation of privacy,” without probable cause to believe either that he possesses seizable objects or that he has committed a criminal offense.

Perhaps the temper of the times requires that such a change be made. Perhaps, also, the concept of personal privacy articulated by the Supreme Court must yield to some degree as a result. But the majority ought to expressly reveal that it is cutting back on the protection of privacy as we have heretofore known it and explained why that is necessary. It does not serve the law nor the public well to hide this important change.

I would decide this case by looking to the existing justifications for a search. Under that analysis, the police had two distinct ways of establishing authority to search Mrs. Johnson’s purse while it was in her control. First, armed with sufficient foreknowledge, they could have obtained a warrant that covered her or all individuals the police found in the apartment.

Second, in the absence of foreknowledge, they could have relied upon one of the existing exceptions to the warrant requirement that may be invoked if the police have probable cause. And, of course, they could use the information they had acquired in their efforts to obtain a warrant to search “Pete’s” apartment as part of their showing that they had that probable cause to search Mrs. Johnson.

But in this case the police have not yet shown that they had either. Although the warrant and affidavit recited that narcotics transactions had taken place in the apartment, nothing was said about the probability that an unidentified individual discovered on the premises would be a participant in such a transaction. That, of course, cannot be cured at this late date.

And, limited to the record before us, I cannot say that the Government has presented facts that would justify the search under some exception to the warrant requirement. This was no mere weapons frisk. There is no showing that the police had probable cause to arrest Mrs. Johnson. And, while the “emergency” doctrine that is applied in some cases in which the destruction of evidence is threatened might apply here, it would add nothing to the requirements imposed by the arrest exception. Mere possession of the narcotics is a criminal offense, and probable cause to search would have constituted probable cause to arrest.

The police did have probable cause to believe that there were narcotics in the apartment. But the only evidence adduced at the hearing to indicate that Mrs. Johnson possessed narcotics were the sounds the police heard after they announced themselves and before they gained entry. These sounds were described as “suspicious noises” and the sound of a breaking window. The latter, if even probative, made it less likely that Mrs. Johnson had narcotics. The former, “suspicious noises,” is simply meaningless. Although it is conceivable that further elaboration of the character of these noises would point more directly to Mrs. Johnson as a probable offender, this record is bare of such information.

On this appeal, the Government has suggested an alternative offense for which the police might have had probable cause to arrest Mrs. Johnson: presence in an illegal establishment, 22 D.C. Code § 1515(a) (1967). The record will not support that assertion either, for the few facts that were developed at the hearing tended to negate any inference that she had knowledge of the nature of the establishment she was in, see Jones v. United States, 271 A.2d 559, 560 (D.C.App.1970), or that she was chargeable with such knowledge by reason of the obviousness of the situation. See Cook v. United States, 272 A.2d 444, 446 (D.C.App.1971).

The record is deficient in these respects because the trial judge focused exclusively on whether the search preceded a formal arrest. As the majority notes, the issue should have been whether probable cause to arrest preceded the search. For this reason, I would reverse and remand with directions to hold a new suppression hearing.

      . While the record is silent concerning the trial judge’s thoughts on this matter, at oral argument appellant asserted that the crime thought to be involved was presence in an illegal establishment. 22 D.O.Code § 1515.

      . United States v. Brown, 150 U.S.App.D.C. 113, 463 F.2d 949 (1972). Where circumstances constituted lawful detention amounting to arrest, we had earlier held that “[e]ven if the formal arrest was not made until after the search, the search will be upheld so long as there is probable cause for an arrest before the search is begun.” Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305, 308 (1967).

      . It was also a reasonable belief that, in light of the affidavit, appellee might-have been a customer who had purchased narcotics and planed.them ip her purse. The warrant was issued on allegations that the apartment was a place where narcotics were being sold; and the purposes of the warrant would seem to include the seizure of narcotics still on the premises but which had been sold there to a customer.

      . The ADI Model Code of Pre-Arraignment Procedure § 220.3(5) (Official Draft No. 1, 1972) states that the scope of a search warrant shall be only such as is “reason-n.hhi mer.ps.in,rn t.o discover the things specified therein.” (emphasis added). In this case the opening of appellee’s purse was so necessary for the discovery of the narcotics which were tlie supject or-the search warrant.

      . Our purposeful emphasis on the precise factual context of this case reflects our view that the narcotics located in the apartment (in purses or elsewhere) — and not appellee — was the central focus of the search authorized by the warrant. The facts shown by the warrant and affidavit as to the narcotics-retailing nature of the premises warranted the construction of the scope of the warrant placed upon it by the police. Indeed, our failure to uphold that construction would divert the vital law enforcement effort against narcotics traffic here involved to alternatives unwise from both a practical and legal standpoint. To obtain a warrant permitting the search of anyone found on the premises would, apart from being unnecessary in these circumstances, appear to be unsupportable as lacking the particularity constitutionally required, see, e. g., Wise,

        supra, 284 A.2d at 294. To justify inclusion in the warrant of appellee by name would require an investigative effort not reasonably to be expected of officers seeking only the narcotics owned and retailed by, and the narcotics paraphernalia of, the occupant. And to detain appellee and preserve the status quo while a warrant to search the purse was obtained would constitute a more serious invasion of appellee’s privacy than did the search at issue. Contrary to the holding of the court in Nicks, supra, 273 A.2d at 258, which permitted evidence to be seized from the hand of the appellant there on authority of a warrant to search the premises for narcotics and the likelihood appellant would destroy the evidence sought— which the dissent here would seem to uphold as an exemption from the warrant requirement, see note 9 infra — we hold only that the purse, not appellee’s person, was embraced by the warrant.

      . Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

      . This result is the same whether the inquiry is based on “reasonable expectations of privacy” or one’s physical control over the premises. See White, Effective Consent to Search & Seizure, 113 U.Pa.U.Rev. 360, 373 (1964).

      . Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). See Note, From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection, 43 N.Y.U.L.Rev. 968 (1968).

      . See Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In United States v. DiRe, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210 (1948), the Supreme Court said, in suppressing the fruits of a search of a passenger in an automobile:
      The Government says it would not contend that, armed with a search warrant for a residence only, it could search all persons found in it. . How then could we say that the right to search a car without a warrant confers greater lattitude to search occupants than a search by warrant would permit.

        See also State v. Bradbury, 109 N.H. 105, 243 A.2d 302 (1968).

      . The likelihood that any individual present is engaged in conduct described in the warrant is inextricably related to the other uses to which the premises are put, the amount of traffic through the area, and the fluctuations of time. Five or even fifty narcotics transactions would have a far different result depending on whether the place to be searched was a home, a vacant store or a restaurant with hundreds of patrons.

      . A protective frish for weapons is another matter. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 1 (1968).
      And in Walker v. United States, 117 U.S.App.D.C. 151, 327 F.2d 597 (D.C.Cir. 1963), discussed by the majority at page 979, supra, the detective executing the warrant saw the objects passed from one occupant of the residence to another occupant. Further, the affidavit supporting the warrant had recited that both individuals were selling narcotics from the residence. Id. at 598.

      . See United States v. Robinson, 153 U.S.App.D.C. 114, 471 F.2d 1082 (1972) (en banc).

      . See United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Rabinowitz, the commonly cited authority for this proposition, was “overruled” by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In fact, only that part of Rabinowitz that would have allowed a search beyond the immediate control of the arrestee was disapproved.

      . See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

      . See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

      . The court ruled:
      With reference to the Defendant Gwendolyn E. Johnson, the Court finds that probable cause possibly did exist for her arrest, but the search preceded her arrest and the search was improper. Hearing Transcript at 30.

      . See Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305, 308 (1967); majority opinion at note 2.