author: LIVELY, Circuit Judge.

text:
    CINCINNATI ELECTRONICS CORPORATION, Plaintiff-Appellant, v. Thomas S. KLEPPE, Administrator, Small Business Administration, and Howard H. Callaway, Secretary of the Army, Defendants-Appellees.
    Nos. 73-2046 and 74-1170.
    United States Court of Appeals, Sixth Circuit.
    Jan. 31, 1975.

      Thomas S. Calder, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, Robert L. Ackerly, Joseph S. Wager, Sellers, Conner & Cuneo, Washington, D.C., for plaintiff-appellant in both cases.
    William W. Milligan, U. S. Atty., Grayce M. Ruehlman, Cincinnati, Ohio, Byron Trapp, Robert E. Kopp, David M. Cohen, Carla Hills, Asst. Atty. Gen., Dept, of Justice, Washington, D.C., for defendants-appellees in both cases.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

This case presents consolidated appeals by an unsuccessful bidder for a government contract from two adverse rulings by the district court. On March 24, 1972 the Army issued invitations to bid on a multi-year procurement of radio sets. The invitations stated that 50 per cent of the total quantity would be set aside for award by negotiation to concerns located in labor surplus areas. First priority would be given to certified-eligible concerns which were also “small business concerns.” The bids of eleven companies were opened on October 18, 1972. The apparent low bid was found to be nonresponsive and was rejected. The second low bid was that of Cincinnati Electronics Corporation (Cincinnati), and it was ultimately awarded a contract covering the non-set-aside portion of the procurement. On protest by another bidder, Cincinnati was found not to be a small business concern within the meaning of the applicable regulations. This ruling gave Cincinnati a lower priority than Sentinel Electronics, Inc. (Sentinel), and the set-aside portion of the procurement was awarded to Sentinel on June 13,. 1973.

Upon being notified by the contracting officer on June 11, 1973 of his intention to award the set-aside contract to Sentinel, Cincinnati filed a protest against the award and requested the contracting officer to withhold making an award pending determination by the Small Business Administration (SBA) of the small business status of Sentinel. The protest was based upon information which Cincinnati had obtained from a trade magazine which indicated that Sentinel had entered into a “teaming agreement” with an Israeli concern which would disqualify Sentinel for preference as a small business concern. Prior to this time both the contracting officer and another bidder had obtained from SBA rulings that Sentinel continued to qualify as a small business concern and that the arrangement with the Israeli company did not disqualify it. A similar conclusion was reached by counsel for the Comptroller General of the United States when the denial of the protest filed by another unsuccessful bidder was appealed to that officer. The contracting officer neither forwarded Cincinnati’s protest to SBA nor delayed making an award of the set-aside contract as requested in the protest. This suit was then filed in the district court.

In its complaint, Cincinnati sought review both of the decision of SBA that Cincinnati was not qualified for preferential treatment as a small business concern and of the action of the Secretary of the Army, acting through the contracting officer, in refusing to forward its protest of Sentinel’s small-business-concern status to SBA and in awarding the set-aside contract to Sentinel without awaiting the outcome of Cincinnati’s protest. The district court did not reach the issue of Cincinnati’s qualification as a small business concern because of the manner in which the case proceeded. The court entered a temporary restraining order against the defendant Calla-way and set a hearing on Cincinnati’s motion for a preliminary injunction. No injunctive relief was sought against the administrator of SBA, and thus the issue with respect to determination of Cincinnati’s status as a small business concern was not involved in the injunction proceedings. The district court denied the motion for a preliminary injunction and filed an opinion setting forth his findings and conclusions. An appeal was taken from the order denying the injunction pursuant to 28 U.S.C. § 1292(a)(1). Thereafter the court entered a final judgment of dismissal of the defendant Callaway “on the claims that the Contracting Officer violated the Armed Services Procurement Regulations in awarding the set-aside portion of the procurement contract to Sentinel Electronics, Inc.” In this order, the court made the required determination under Rule 54(b), Fed.R.Civ.P., that there is no just reason for delay and the alternative certification under 28 U.S.C. § 1292(b) that the order involves controlling questions of law as to which there is substantial ground for difference of opinion and an immediate appeal might materially advance the ultimate termination of the litigation. Cincinnati filed a separate appeal from this judgment, and the two appeals were consolidated for hearing and decision. The claims in the complaint against the administrator of SBA are pending in the district court.

THE ISSUE OF STANDING

At the outset, the court is faced with the contention of the government that Cincinnati had no standing to obtain judicial review of the Army’s action in awarding the set-aside portion of the procurement to Sentinel. Obviously, if this argument is correct, we will not reach the merits of the case. In Perkins v. Lukens Steel Company, 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940), the Supreme Court held that bidders for government contracts have no standing in a federal court to obtain a declaratory judgment and injunction restraining officials and agents of an executive department with respect to public contracts. The Court found that no legal rights of the plaintiffs in that case had been invaded or threatened and that “neither damage nor loss of income in consequence of the action of Government, which is not an invasion of recognized legal rights, is in itself a source of legal rights in the absence of constitutional legislation recognizing it as such.” The Court further held that such bidders do not have standing to “vindicate any general interest which the public may have in the construction of the Act by the Secretary and which must be left to the political process. Respondents, to have standing in court, must show an injury or threat to a particular right of their own, as distinguished from the public’s interest in the administration of the law.” Id. at 125, 60 S.Ct. at 875.

The Court pointed out that the Public Contracts Act, under which the plaintiffs sought to proceed, “embodies the traditional principle of leaving purchases necessary to the operation of our Government to administration by the executive branch of Government, with adequate range of discretion free from vexatious and dilatory restraints at the suits of prospective or potential sellers. It was not intended to be a bestowal of litigable rights upon those desirous of selling to the Government; it is a self-imposed restraint for violation of which the Government — but not private litigants— can complain.” Id. at 127, 60 S.Ct. at 876. At the conclusion of the opinion, Mr. Justice Black, disclaiming that the standing issue rested upon a technicality, wrote, “We rest it upon reasons deeply rooted in the constitutional divisions of authority in our system of Government and the impropriety of judicial interpretations of law at the instance of those who show no more than a mere possible injury to the public.” Id. at 132, 60 S.Ct. at 879. Perkins v. Lukens Steel Company has never been reversed by the Supreme Court nor alluded to in the later cases hereinafter cited dealing with the issue of standing in different contexts.

Cincinnati contends that the authority of Lukens Steel has been eroded by subsequent decisions of the Supreme Court and by congressional action. In Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the Court pointed out that little value is to be gained from generalizations about standing to sue in the federal courts. Beyond the constitutional requirement that there be an actual “case” or “controversy” the first inquiry is “whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise.” If this standard is met, the court must then determine “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Id. at 152-153, 90 S.Ct. at 830. The Court further stated that the question of whether a plaintiff has a “legal interest” conferred by a statute or regulation whose violation has caused him to seek judicial review of administrative action goes to the merits of the case and is not an issue in determining whether plaintiff has standing to sue.

In Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), the Court found that a group of plaintiffs clearly belonged within the zone of interests protected by a statute because they were “persons aggrieved by agency action within the meaning of a relevant statute,” language quoted from Section 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702. The Court cautioned that the determination of whether a particular agency action is reviewable involves the often difficult task of finding congressional intent, and that an intent to preclude judicial review may be either found in express language or inferred, but should not be lightly inferred. Id. at 166, 90 S.Ct. 832.

In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), the Supreme Court dealt with cases where plaintiffs claimed noneconomic injury as the result of agency action. In Sierra Club, the Court recognized that noneconomic injuries to interests that are widely shared may be alleged in support of standing, but pointed out that this broadening of the categories of injuries “is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” 405 U.S. at 738, 92 S.Ct. at 1368. The Court discussed the difference between situations where a plaintiff relies on a specific statute authorizing judicial review and those where no such statute exists. In both Sierra Club and the present case, the plaintiffs relied on specific statutes. Dealing with this situation the Court stated, “Where, however, Congress has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with the determination of whether the statute in question authorizes review at the behest of the plaintiff.” 405 U.S. at 732, 92 S.Ct. at 1364 (footnote omitted). Noting that the Sierra Club relied upon Section 10 of APA, 5 U.S.C. § 702, the Court then reiterated the requirements under this statute as formulated in Data Processing Service v. Camp, supra, and Barlow v. Collins, supra, that is, the existence of an “injury in fact” and injury to an interest “arguably within the zone of interests to be protected or regulated” by the statutes which it is claimed have been violated by an agency. The Court found that the Sierra Club lacked standing because it had not alleged that it suffered injury itself from the agency actions which it questioned. On the other hand, in United States v. SCRAP, supra, the plaintiff, which was also a public interest group, was found to have brought itself within the requirement of 5 U.S.C. § 702 that it be “adversely affected” or “aggrieved” by agency action.

Holding that the law of standing was greatly modified by the passage of the Administrative Procedure Act, especially Section 10 (5 U.S.C. § 702), the Court of Appeals for the District of Columbia held in Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970), that the second low bidder for a government contract had standing to seek judicial review of a contract award. While recognizing that the plaintiff had no right to have the contract awarded to it in the event the court should find illegality in the award to the low bidder, the court nevertheless held that a disappointed bidder suffers sufficient injury as the result of illegal government action to provide standing. The court reasoned that such a plaintiff, while seeking to vindicate Ms own very real interests, brings the suit in the public interest and that “the essential thrust . on the merits is to satisfy the public interest in having agencies follow the regulations which control government contracting.” Such a plaintiff is treated as a “private attorney general.” Id. 424 F.2d at 864. The court of appeals discounted the continuing authority of Perkins v. Lukens Steel Company, supra, on the ground that it was decided before the passage of APA and before amendment of the Public Contracts Act. The legislative history of the relevant amendment to the Public Contracts Act was set forth in the opinion, in particular the statements of Senator Fulbright that the purpose of the amendment was to overturn the decision in Lukens Steel. This reasoning is persuasive with respect to the Public Contracts Act, but does not necessarily dispose of the question when procurement is being made under other statutes.

At least two other circuits have adopted the Scan well rationale and now permit suits by disappointed bidders which seek to set aside awards to competing bidders and enjoin execution of proposed contracts. Merriam v. Kunzig, 476 F.2d 1233 (3d Cir. 1973); Wilke v. United States, 485 F.2d 180 (4th Cir. 1973). In Merriam, the plaintiff was a landlord who already had government tenants and was about to lose them because of an allegedly illegal award of a new lease to his competitor. The court held that he had suffered sufficient injury in fact to permit him to seek to vindicate the rights of the public as well as his own and that his interest was within the zone of interests of the procurement statute under which he made his bid. Since the district court had dismissed the complaint for lack of standing, the court of appeals did not reach the issue of the harmful effect of injunctive interference with executive decisions. In Wilke, the court of appeals affirmed the granting of a declaratory judgment. In approving the denial of an injunction to the disappointed bidder it noted that the plaintiff could seek recovery of bid preparation costs in the Court of Claims. 485 F.2d at 182.

In other cases decided since Data Processing and Barlow, this court in Pace Company, Division of AMBAC Industries, Inc. v. Resor, 453 F.2d 890 (1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1192, 31 L.Ed.2d 248 (1972); the Ninth Circuit in Hi-Ridge Lumber Company v. United States, 443 F.2d 452 (1971); and the Fifth Circuit in Campbell Company v. Wood Construction Company, 446 F.2d 261 (1971), have noted the present uncertainty of the issue of standing by an unsuccessful bidder for a government contract, but have not addressed the issue. In Campbell Company v. Wood, supra, the district court had denied injunctive relief and the only question before the court of appeals concerned a size determination by SBA. The court of appeals found standing as to this issue in the pertinent statutes. This is the same issue which is now pending in the district court in the present case.

We believe the positions of the plaintiff Cincinnati and the defendant Secretary of the Army are sufficiently adverse to create a “case” or “controversy” within the meaning of Article III of the Constitution.' Beyond this it is clear that Cincinnati has alleged an “injury in fact.” Having made this determination, we are required by the decision in Sierra Club v. Morton, supra, next to examine the statutes under which Cincinnati seeks relief to determine whether they contemplate judicial review “at the behest of the plaintiff.” Id. 405 U.S. at 732, 92 S.Ct. 1361. The statutes relied upon by the plaintiff are Section 10 of APA and the Armed Service Procurement Act of 1947, 10 U.S.C. §§ 2301-2314 (the Act). We first consider Section 10 of APA, 5 U.S.C. § 702, which provides as follows:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

This leads to consideration of 10 U.S.C. §§ 2301-2314, which is the “relevant statute” for purposes of this case and of regulations issued by the Department of Defense pursuant to this statute which have the force of law. These regulations, known as Armed Services Procurement Regulations (ASPR), are codified in Title 32 of the Code of Federal Regulations.

We find no provision of the Act which indicates a congressional intent that every unsuccessful bidder shall have the right to judicial review of agency actions taken pursuant to the statute. Although the regulations provide for extensive administrative review and appeal to the Comptroller General of the United States, they are silent on the subject of judicial review. It is also noted that the statute grants broad discretion by providing that all bids received as the result of formal advertising “may be rejected if the head of the agency determines tíiat rejection is in the public interest.” 10 U.S.C. § 2305(c). However, there is no expressed intent to preclude judicial review of agency actions. This leads to a determination of whether the interest which Cincinnati is seeking to protect in this action “is arguably within the zone of interests” protected or regulated by the Act. Data Processing Service v. Camp, supra, 397 U.S. at 153, 90 S.Ct. at 830. Cincinnati maintains that the contracting officer violated ASPR 1-703(b)(1)(a) which requires that he “shall immediately forward” Cincinnati’s protest relating to Sentinel’s size to SBA, and that he violated ASPR l-703(b)(5) which prohibits the contracting officer from making an award pending consideration by SBA of the protest. It is significant that the issue between Cincinnati and the Secretary of the Army revolves around the alleged failure of the Secretary’s representative to follow regulations which establish the procedure for handling protests of small business status in view of the fact that the Act opens with this “Declaration of Policy”:

It is the policy of Congress that a fair proportion of purchases and contracts made under this chapter be placed with small business concerns. 10 U.S.C. § 2301.

This statement indicates a “zone of interests” sought to be protected by the Act. We hold that an unsuccessful bidder under this Act who alleges that it is a small business concern and that an agency representative has acted illegally in failing to follow regulations designed to implement the congressional policy of awarding a fair proportion of contracts under the Act to small business concerns has standing to seek judicial review of such actions pursuant to 5 U.S.C. § 702.

We cannot infer a congressional intent to preclude judicial review of agency actions which are alleged to have subverted a clearly stated declaration of policy. In reaching this conclusion, we do not hold that Section 10 of the APA confers standing on every disappointed bidder for government contracts to seek review of agency action. Indeed, in view of the underlying reasons given by Mr. Justice Black for the holding in Lukens Steel, we are unable to discover a basis for departure from it. Rather, we view the present case as dealing with an exception recognized in Lukens Steel, 310 U.S. at 125, 60 S.Ct. 869, where Congress has by “constitutional legislation” recognized the legal right of a bidder for government contracts to benefit from the policy of granting a fair share of such contracts to small business concerns. Standing is conferred by Section 10 only when a relevant statute indicates congressional intent that the person or firm seeking review comes within the zone of interests sought to be regulated or protected. Absent such a congressionally created exception, the general rule of Perkins v. Lukens Steel, supra, that a disappointed bidder has no legally enforceable right against the government’s award of a procurement contract retains its validity.

THE MOTION TO DISMISS

The first issue on the merits relates to the government’s position that Cincinnati does not possess the requisite “legal interest” to bring the suit and that its complaint fails to state a claim upon which relief may be granted. As one claiming small-business-concern status for itself and contesting that status in another bidder, Cincinnati has alleged the required “legal interest” for its complaint to withstand a motion to dismiss.

THE SUBSTANTIVE ISSUES

In No. 73-2046, the appeal from denial of a preliminary injunction, the judgment of the district court is affirmed. The district court applied the correct criteria to this motion and determined that the plaintiff was unlikely to prevail ultimately in the law suit, would suffer no irreparable injury in the event the injunction were denied and had an adequate remedy at law. We find no abuse of discretion in the denial of the motion for preliminary injunction.

The appeal in No. 74-1170 results from the district court’s holding that Cincinnati’s protest of Sentinel’s size determination was not timely filed with the contracting officer and therefore the contracting officer had no duty either to forward the protest to the SBA or to withhold the award to Sentinel pending consideration of the protest. From this determination it was concluded that the plaintiff had failed to show any wrongful act by the Army, and the district court dismissed the Secretary on the merits. The question is whether the action of the defendant Callaway in awarding the contract to Sentinel under these circumstances was “arbitrary, capricious ... or otherwise not in accordance with the law” [5 U.S.C. § 706(2)(A)] as charged in the complaint. Following prescribed procedures, the contracting officer, as representative of the Secretary, had obtained determinations from the SBA that Cincinnati was not qualified as a small business concern and that Sentinel was so qualified. It is provided in 15 U.S.C. § 637(b)(6), in part that:

Offices of the Government having procurement or lending powers, or engaging in the disposal of Federal property or allocating materials or supplies, or promulgating regulations affecting the distribution of materials or supplies, shall accept as conclusive the [Small Business] Administration’s determination as to which enterprises are to be designated “small business concerns”, as authorized and directed under this paragraph; . . . (emphasis added).

Required by law to accept these determinations as conclusive, the contracting officer cannot be held to have acted capriciously or arbitrarily in awarding the set-aside contract in this case to Sentinel.

This leaves the question whether his action was “otherwise not in accordance with law.” A contracting officer’s duty to forward a timely protest to SBA is governed by 32 CFR § 1.703(b)(1)(a) which provides as follows:

(a) Timely protest received prior to award. When the contracting officer receives a timely protest prior to award, he shall forward the protest record to the Small Business Administration district office serving the area in which the protested concern is located. The Small Business Administration will promptly notify the contracting officer and the protestant of the date of its receipt of any such protest and will advise the bidder or offeror in question that his small business status is under review.

The protest was received by the contracting officer prior to the award of the set-aside portion and one day after the contracting officer notified Cincinnati of his intention to make the award to Sentinel. The regulations set forth the time limitations for filing protests. 32 CFR § 1.703(b)(1) provides that a protest which questions “the small business status of an apparently successful bidder or offeror . . . must be received by the contracting officer prior to the close of business on the fifth working day . after bid opening date for formally advertised and small business restricted advertised procurements. In procurements requiring submission of proposals, the contracting officer shall, notify the apparently unsuccessful offerors in writing of the name and location of the apparently successful offeror(s) and establishing a deadline (at least five working days plus a reasonable time for the notice to reach the unsuccessful offerors) by which any size protest on the instant procurement must be received.” (emphasis added) The contracting officer considered this entire transaction to be a formally advertised procurement. Since the protest was filed much later than five days after the bid opening, he treated it as untimely. The district court agreed with his determination.

Cincinnati claims that the set-aside portion of the procurement in question was “negotiated” and therefore it had at least five days from the time it was notified that Sentinel was the apparently successful offeror. It points to the fact that the invitation to bid referred to negotiations for award of the set-aside portion in a number of places. This assumes that the use of the word “negotiation” in connection with the award of the set-aside contract is equivalent to the language in the regulations, “procurements requiring submission of proposals.” The regulations dealing with the time of filing a size protest do not use the words “negotiations” or “negotiated.” We note that under the terms of the invitation to bid the only bids that would be considered responsive were those which established a unit price both for the non-set-aside and the set-aside portions of the contract. Further, no one would be permitted to negotiate for the set-aside portion who had not bid on the non-set-aside portion. Since all negotiations for the set-aside portion would necessarily be with the same persons whose bids were publicly opened, each eligible negotiator would know the identity of every other eligible person or firm. This is quite different from the situation of a procurement based on submission of proposals. In such a case there is no public opening and an unsuccessful bidder would not know the identity of his competitors. The district court held that the set-aside portion of the procurement was not negotiated in the usual sense and that Cincinnati’s protest was not timely.

The reasoning would be persuasive if the period for filing a protest contained in the regulations were measured from the time when the mere identity of the other bidders or offerors became known to the protestant. That is not the case. It is clear that time does not begin to run until the protestant knows the identity of the “apparently successful bidder or offeror.” The scheme of the regulations is to permit size protests only against apparently successful bidders and offerors and to provide a short, but reasonable time for filing them. When the bids for the non-set-aside portion of this procurement were opened, Sentinel was not the apparently successful bidder. Therefore, a protest relating to its size would not have been within § 1.703(b)(1). Only after the contracting officer notified Cincinnati that he was treating Sentinel as the apparently successful offeror by proposing to award the set-aside contract to it was Cincinnati in position to file a protest under § 1.703(b)(1). Having thus received a timely “size” protest, the contracting officer was required to forward it to SBA and withhold the awarding of the set-aside contract pending disposition thereof. While the district court based its holding on the conclusion that the protest was not timely, it mentioned the possibility that the protest might have been considered deficient for other reasons, but made no finding or conclusions with respect to these matters, and we do not consider them.

Though it is necessary to reverse the judgment dismissing the defendant Callaway, consideration must be given to the question of what relief should be granted Cincinnati. The record in this case does not support the issuance of an injunction as requested in the complaint. This is so for a number of reasons. In the first place, Cincinnati has not shown that it has suffered or will suffer irreparable loss or injury. Although Cincinnati bid on the entire procurement on the assumption that if it were the successful bidder on the non-set-aside portion it would thereafter be awarded the contract for the remainder, such a result was not certain. The ultimate decision on whether to grant an award of this contract to Cincinnati or some other firm remained a matter in the discretion of the government. If it is finally determined that the contract was illegally awarded to Sentinel, Cincinnati has no right to have the contract awarded to it. See Scanwell Laboratories, Inc. v. Shaffer, supra, 424 F.2d at 864.

The only recognized loss which Cincinnati or any other unsuccessful bidder sustains is the cost of preparation of bids or proposals. These costs may be recovered in an action in the Court of Claims. M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289, 1302 (1971); Keco Industries, Inc. v. United States, 428 F.2d 1233, 1240, 192 Ct.Cl. 773 (1970); Robert F. Simmons and Associates v. United States, 360 F.2d 962, 964, 175 Ct.Cl. 510 (1966); Heyer Products Co. v. United States, 177 F.Supp. 251, 252, 147 Ct.Cl. 256 (1959). Thus there is an adequate remedy available, and this is the second reason for denying an injunction.

Finally, in every case such as this where injunctive relief is sought a court must balance the public interest in having a government procurement process which can be administered without disruptive court-ordered restraints against the interests of the party seeking the injunction. See M. Steinthal & Co. v. Seamans, supra, 455 F.2d at 1301. Compare Wilke v. United States, supra. Though an unsuccessful bidder must have suffered an “injury in fact” to have standing to bring an action for judicial review of an award, the “essential thrust” of its claims “is to satisfy the public interest in having agencies follow the regulations which control government contracting.” Scanwell, supra, 424 F.2d at 864. We believe the public interest is best served by issuing a declaratory judgment concerning the actions of the contracting officer in this case, but denying injunctive relief.

The judgment in No. 74-1170 is reversed for further proceedings as indicated herein.

      . This Act deals generally with procurement by the armed forces with detailed provisions concerning advertising, opening of bids, types of contracts permitted and similar subjects.

      . The Office of the Comptroller General is apparently in agreement with this reading of the regulations. The Deputy General Counsel, in his cover letter of March 12, 1973 to the Comptroller General, enclosing the proposed administrative report on Bristol Electronics’ protest of Sentinel, noted that it appeared “that this protest, since it relates to the status of the third low bidder, is at present premature.” At that time, nearly three months before the award of the set-aside portion of the procurement, Sentinel was only the third low bidder. Not then, nor at any other time prior to announcement of the proposed set-aside award on June 11, was Sentinel “an apparently successful bidder or offeror” against which a timely protest could be filed.


source: Caselaw Access Project

author: TONE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ronnie MOSER and Carl Mullins, Defendants-Appellants.
    Nos. 74-1635 and 74-1638.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 9, 1975.
    Decided Jan. 29, 1975.

      Howard S. Grimm, Jr., Auburn, Ind., Belle T. Choate, Indianapolis, Ind., for defendants-appellants.
    John R. Wilks, U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.
    Before FAIRCHILD and TONE, Circuit Judges, and PERRY, Senior District Judge.

       Senior District Judge J. Sam Perry of the Northern District of Illinois is sitting by designation.

   TONE, Circuit Judge.

Defendants were convicted in a trial before a jury of unlawful possession with intent to distribute lysergic acid diethylamide, commonly known as LSD. They argue that there is a variance between the indictment and the proof, or alternatively an insufficiency in the evidence, because although the indictment charges and the evidence shows that they possessed and distributed LSD, the evidence also shows that they described the material only as psilocybin and mescaline. Defendant Mullins also contends that the evidence in support of Count I of the three-count indictment was insufficient as to him because it does not show that he was involved in the transaction proved under that count.

Defendants offered no evidence. The government’s evidence was as follows:

On the evening of May 29, 1973, a confidential informant and Charles E. Hampshire, who was working with the Narcotics and Dangerous Drugs Section of the Indiana State Police, met the two defendants at a residence in Gas City, Indiana. Moser asked Hampshire what he was interested in, and Hampshire asked what “they” had. Moser answered “that they had psilocybin, mescaline, PCP and coke.” Hampshire asked “what their prices were,” and Moser gave the prices of the various drugs he had mentioned. Hampshire stated that he “would be interested in purchasing an ounce of the psilocybin and a gram of the coke, and that if it proved satisfactory [he] would possibly want a half pound or a pound.” Moser then stated that Hampshire and the confidential informant should return between 9:00 and 10:00 P.M. Later they returned and again met with the two defendants. Moser stated that he had the psilocybin but the coke had not been any good. Mullins said that he had injected himself with $25 worth of the cocaine and that “he still was not very high.” Hampshire then said that he would not want the coke but “would try the psilocybin.” Moser then handed Hampshire a bag containing reddish powder in exchange for $55. Moser stated that he would contact his supplier the next day and would have some additional coke that night.

The following evening Hampshire and the confidential informant returned to the same residence and met again with the defendants. Moser stated that he had not contacted his coke supplier yet but still, had mescaline and gave the prices for various amounts. Hampshire said he would be interested in an ounce of the mescaline and “if it moved well” he might be interested in “half pound each of the psilocybin and the mescaline.” Moser said that he did not have the mescaline bought yet and Hampshire should return later. Hampshire and the confidential informant left and returned later, at which time Moser handed Hampshire a package containing a blue powder that he said was mescaline in return for $55.

On July 10 Hampshire again met the defendants, this time at a residence near Jonesboro, Indiana. Mullins stated he wanted to take Hampshire and the confidential informant to his “stash,” i.e., the place where he kept his drugs. The defendants got into Hampshire’s car and directed him to a place along a railroad track. Mullins left the car and returned shortly with a plastic bag containing a blue powder, which he handed to Hampshire, stating “that it was pure and that it would cut to a pound . . . that it was $550 a pound and $575 buffed.” Hampshire asked the price of half a pound and Mullins said “$275 pure and $300 buffed.” Hampshire then looked at Moser, who nodded his head in the affirmative. Hampshire told them he would “be interested in a half a pound buffed, if he could watch them buff it.” They all then returned to the residence where they had met earlier. Moser left “to get the scales and stuff,” and returned with scales, cornstarch and a bowl. The defendants then proceeded to mix other substances and the blue powder in measured amounts in the bowl. Eventually Moser delivered half the contents of the bowl to Hampshire, stating, “You owe us $300.” Hampshire then paid Mullins the $300.

Anne Rummel, a chemist employed by the Indiana State Police Department, testified that she had chemically analyzed the substances received by Hampshire on the three occasions and they all contained LSD.

Each of the three counts of the indictment charged that the defendants unlawfully possessed with intent to distribute a quantity “of lysergic acid diethylamide, a Schedule I Controlled Substance, in violation of 841(a)(1), Title 21 of the United States Code.” That section makes it “unlawful for any person knowingly or intentionally—

“(1) to . distribute, . or possess with intent to distribute, ... a controlled substance . . . . ”

Section 841 is section 401 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236 (1970). Section 102(6) of the Act, 21 U.S.C. § 802(6), defines “controlled substance” to mean “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V or part B of this subchapter.” Section 202 of the Act, 21 U.S.C. § 812, which is contained in part B, establishes five schedules of controlled substances, contains a list of the substances which each schedule “shall initially consist of,” and provides that the schedules “shall be updated and republished” periodically thereafter. Section 201 of the Act, 21 U.S.C. § 811, delegates the duty of updating and republishing of the schedules to the Attorney General. Schedule I, contained in section 202, lists in subsection (c) “any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers . . . :

“(9) Lysergic acid diethylamide
“(11) Mescaline
“(15) Psilocybin.”

The updated and republished schedules promulgated by the Attorney General as provided in section 202 have continued to list these three substances in the same subsection of Schedule I.

Defendants’ variance argument is without merit. To require a reversal, a variance between the indictment and the proof must affect the substantial rights of the defendant. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Cromer v. United States, 78 U.S.App.D.C. 400, 142 F.2d 697, 698 (1944), cert. denied, 322 U.S. 760, 64 S.Ct. 1274, 88 L.Ed. 1588 (1944). Here defendants’ rights were not substantially affected if the evidence shows that they were aware of the nature of the substance they possessed.

The defendants’ alternative argument is, in essence, that, since they said they were selling psilocybin and mescaline, the jury could not find they had the necessary specific intent to possess and distribute LSD. Knowledge and intent in narcotics cases, as in other cases, must ordinarily “largely be proved by circumstantial evidence,” which includes “the circumstances as to the time and place of the transaction, the manner in which it was conducted and the price paid for the substance . . . .” Jackson v. United States, 330 F.2d 679, 681 (8th Cir. 1964), cert. denied, 379 U.S. 855, 85 S.Ct. 105, 13 L.Ed.2d 58 (1964); see United States v. Jones, 486 F.2d 476, 479 (8th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1415, 39 L.Ed.2d 472 (1974). Other relevant evidence in the case at bar included defendants’ statements indicating that they were dealers in, and conversant with, various kinds of illicit drugs, their expertise in “buffing” the drug, and the testimony of Hampshire, who had been in narcotics work in that area for approximately two years, that everything he had purchased since he had “been working narcotics represented as mescaline and psilocybin has been LSD.” The jury could reasonably have inferred from all the circumstances that the defendants were aware of the fact that the substance they possessed and distributed contained LSD.

It is a legitimate inference that one who possesses a dangerous drug knows what it is. United States v. Joly, 493 F.2d 672, 676-677 (2d Cir. 1974). While other evidence, such as the defendants’ statements here that the substance was a different dangerous drug than it in fact was, may weaken the inference, “the legitimacy of the basic inference of knowledge does not automatically disappear because other evidence arguably points the opposite way” or because there were more than two alternative possibilities as to what the substance was. Id. at 676. Moreover, if a defendant did not learn what the substance was because he deliberately chose not to learn so he could assert his ignorance if he was discovered with the substance in his possession, he is chargeable with knowledge. United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974); see United States v. Joly, supra, 493 F.2d at 674-675, 676-677. Here the drugs the defendants said they possessed and were distributing appear with LSD in the same subsection of the same schedule of controlled substances. The jury may reasonably have inferred that the defendants, in order to be able to say they did not know what they were distributing, deliberately chose to use the name of a similar substance which would be as salable and would also produce hallucinogenic results, making it difficult for the user to know the difference. Cf. United States v. Joly, supra, 493 F.2d at 674, 676-677; United States v. Olivares-Vega, supra, 495 F.2d at 830.

Defendant Mullins also contends that the evidence was insufficient to show that he participated in the May 29 transaction, which was the subject of Count I of the indictment. Mullins was present during the entire first and second conversations during which the negotiation and sale were carried out. Both Hampshire and Moser spoke of the defendants collectively as having the drug for sale. Mullins evidenced his participation in the transaction by stating of the other drug being offered for sale, the cocaine, that he had injected some of it and had not found it to be of high quality. The jury could have inferred that this was an attempt to gain Hampshire’s confidence by showing that he could rely on the defendants to sell him only drugs of high quality. These' facts, together with the evidence of Mullins’s active participation in the July 10 transaction, which could be considered by the jury as showing his knowledge and intent, were ample to support the jury’s finding that he was a party to the May 29 transaction, either as a direct participant or as an aider and abettor.

The judgments of conviction are affirmed.

Affirmed.

      . At the close of the government’s case, Mullins moved for a judgment of acquittal as to each count of the indictment. The court granted the motion as to Count II, which concerned the transaction on May 30, 1973, presumably because Mullins was not present at that transaction.

      . Coke is the street name for cocaine and PCP is the street name for phencyclidine.

      . 37 Fed.Reg. 9545 (1972); 38 Fed.Reg. 953 (1973); 38 Fed.Reg. 8254, 8256 (1973); 21 C.F.R. §§ 1308.11(d)(9), (11), (15) (1974); 39 Fed.Reg. 22140, 22141 (1974).


author: BREITEN STEIN, Circuit Judge. SETH, Circuit Judge PER CURIAM. SETH, Circuit Judge BARRETT, Circuit Judge

text:
    Terry Lee RADCLIFF, Petitioner-Appellant, v. Park ANDERSON, Warden, Respondent-Appellee. William Lynn STRINGFIELD, Petitioner-Appellee, v. John GRIDER, Warden, Oklahoma State Reformatory, and Sam Isaacs, Probation and Parole Officer, Department of Corrections, State of Oklahoma, Respondents-Appellants.
    Nos. 73-1520, 73-1550.
    United States Court of Appeals, Tenth Circuit.
    June 14, 1974.
    Rehearing Denied Jan. 24, 1975.
    Certiorari Denied April 21, 1975,
    See 95 S.Ct. 1667.

      Hill, Circuit Judge, did not participate in denial of petitions for rehearing.
    Fred P. Gilbert, Tulsa, Okl. (Andrew T. Dalton, Jr., Tulsa, Okl., on the brief) for appellant Radcliff and appellee Stringfield.
    Kay Karen Kennedy, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen. of Okl., on the briefs), for appellee Anderson and appellants Grider and others.
    Before BREITEN STEIN, SETH and DOYLE, Circuit Judges.
   BREITEN STEIN, Circuit Judge.

The issue is the retroactivity of Lamb v. Brown, 10 Cir., 456 F.2d 18, which held that 10 Okl.St.Ann. § 1101 (Supp. 1969) was unconstitutional in that it violated the equal protection clause of the Fourteenth Amendment. Section 1101 allowed the benefits of juvenile court proceedings to females under the age of 18 years but limited those benefits to males under the age of 16 years. The opinion concluded with the statement that: “This ruling shall not apply retroactively.” Ibid, at 20.

We now have two habeas corpus cases each brought in the Northern District of Oklahoma by a male who was denied juvenile court proceedings because of age. Petitioner-appellant Radcliff, at age 17, was prosecuted as an adult and found guilty of unauthorized use of a motor vehicle. Petitioner-appellee Stringfield, when 17 years old, was prosecuted and sentenced as an adult for second degree burglary. Each claims that § 1101 unconstitutionally deprived him of the right of juvenile proceedings and, hence, the adult proceedings cannot be sustained.

No. 73 — 1520 is an appeal from the denial of the habeas petition of Radcliff. Judge Daugherty construed the Lamb decision as deciding that the issue there involved was procedural rather than substantive and held that he was bound to follow the declaration that Lamb had no retroactive application. Accordingly, he dismissed the habeas action.

No. 73-1550 is an appeal by the warden of the Oklahoma reformatory from the grant of the habeas petition of Stringfield. Judge Barrow held that the action taken in Lamb was substantive and that the declaration of nonretroactivity was dictum, not binding on him. Accordingly, he granted the habeas writ.

The. Lamb decision is the law of the circuit and we are concerned only with its retroactivity. There are decisions that an unconstitutional law must be taken as having no effect whatsoever from the very date of its enactment. See Chicago, Ind. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566, 33 S.Ct. 581, 57 L.Ed. 966; Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178; and Ex parte Siebold, 100 U.S. 371, 376, 25 L.Ed. 717. Later cases have rejected this holding. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329, and Linkletter v. Walker, 381 U.S. 618, 622-629, 85 S.Ct. 1731, 14 L.Ed.2d 601. Accordingly, retroactivity must be determined in the light of recent decisions of the Supreme Court.

During its last term the Court reviewed the subject in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 and Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873. The opinions in those cases analyzed and scrutinized the Court’s previous decisions on retroactivity. Any attempt on our part to reexplore the field would be nonproductive. It is enough that none of the decisions referred to in Robinson and Gosa treat the specific issue before us. Robinson was concerned with the retroactivity of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, which barred, on double jeopardy grounds, two prosecutions, state and municipal, based on the same act or offense. In holding that Waller was fully retroactive, the Court said that the practical result of the constitutional provision against double jeopardy “is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.” 409 U.S. at 509, 93 S.Ct. at 878.

Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873, was concerned with the retroactivity of O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291, which held that a serviceman charged with a nonservice connected crime was entitled to indictment by grand jury and trial in a civilian court. A plurality of the Supreme Court held that O’Callahan should “be accorded prospective application only.” 413 U.S. at 685, 93 S.Ct. 2926. The Court recognized three dominant considerations applicable to a determination of retroactivity. They were (1) purpose of the new constitutional rule, 413 U.S. at 679, 93 S.Ct. at 2936, (2) reliance on the old rule, Ibid, at 682, 93 S.Ct. at 2937 and (3) effect on the administration of justice, Ibid. The Court commented that consideration also must be given to “the impact of a retro-activity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt.” Ibid, at 685, 93 S.Ct. at 2938.

The application of the Gosa tests to the issue before us produces no ready answer. The purpose of Lamb was to end sex discrimination in juvenile proceedings. The reliance on § 1101 was confined to the period between January 13, 1969, its effective date (see statement preceding § 1101 in 1 O.S.1971), and the March 16, 1972, decision in Lamb. The record contains nothing to show the impact of Lamb on the administration of justice, other than the two cases before us and the possibility of others wherein sex discrimination occurred during the three-year period. The interests of society must be balanced against “essential justice” to the individuals. See Gosa, 413 U.S. at 685, 93 S.Ct. 2926.

We have here no question of the accuracy of the fact-finding process. We assume that the adult proceedings to which these boys were subjected resulted in the determination of the truth. In any event, the integrity of the fact-finding process is not an absolute criterion. See Robinson, 409 U.S. at 508, 93 S.Ct. 876 citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Robinson points out that the post-Linkletter cases giving prospective application to procedural rules did not involve “the basic fairness of the earlier trial.” 409 U.S. at 509, 93 S.Ct. at 878.

The Oklahoma statutes give to children benefits not allowable to adults. These include form of petition (§ 1103), custody (§ 1104), release to parents (§ 1107), temporary detention (§ 1108), conduct of hearings, including a provision for privacy (§ 1111), and discretionary certification for adult proceedings after a preliminary hearing (§ 1112(b)).

Mr. Justice Black, concurring in In Re Gault, 387 U.S. 1, 59, 87 S.Ct. 1428, 1460, 18 L.Ed.2d 527, said that the juvenile laws “provide a system of courts, procedures, and sanctions deemed to be less harmful and more lenient to children than to adults.” The petitioners were denied the benefits of the system which Oklahoma provides for children. Accordingly, we are concerned here with both basic fairness and essential justice.

Woodall v. Pettibone, 4 Cir., 465 F.2d 49, dealt with the retroactivity of a federal decision holding unconstitutional upon the ground of denial of equal protection certain Maryland statutes permitting different treatment of juveniles in mentioned geographical areas. The court said that to deny in one area the opportunity to take advantage of diminished responsibility as a juvenile and to allow it in another area is “so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in these proceedings.” 465 F.2d at 52.

A certiorari ■ application in Woodall was denied by the Supreme Court, see 413 U.S. 922, 93 S.Ct. 3054, 37 L.Ed.2d 1044, on the same day that it decided Gosa. Although denial of certiorari has normally no implication or inference, we believe that the denial in Woodall, when coupled with the disparity of views expressed in the four opinions filed in Gosa, is some indication of the attitude of the Supreme Court towards the problem before us. Cf. United States v. Kras, 409 U.S. 434, 443, 93 S.Ct. 631, 34 L.Ed.2d 626.

No question of retroactivity was presented in Lamb. The statement that its ruling should not apply retroactively, see 456 F.2d at 20, is dictum which arises no higher than “comment merely obiter.” Hawks v. Hamill, 288 U.S. 52, 59, 53 S.Ct. 240, 77 L.Ed. 610. We believe that the principles of “basic fairness” mentioned in Robinson and “essential justice” mentioned in Gosa require that the Lamb decision be applied retroactively.

In 73 — 1520, Radcliff, the judgment is reversed and the case is remanded to the district court for further proceedings in the light of this opinion.

In 73 — 1550, Stringfield, the judgment is affirmed.

SETH, Circuit Judge

(dissenting):

I respectfully dissent from the majority opinion. The panel ' which decided Lamb v. Brown, 456 F.2d 18 (10th Cir.), stated that the holding therein would be applied prospectively only. This to me is a provision properly part of the opinion to express its application and effect. Such a statement is within the authority of a court in the application of its opinions, and is an expression of court policy on the subject. ‘ Thus the matter of whether the issue was raised by the parties is not a consideration. Parties ■ are not expected to raise in the pleadings matters relating to an application of an opinion in the same case.

The petitions for rehearing are severally denied. Chief Judge LEWIS, Judges BREITENSTEIN, HOLLOWAY, McWILLIAMS, and DOYLE concurring. Judges SETH and BARRETT dissenting. Judge HILL not participating.

ON PETITIONS FOR REHEARING

PER CURIAM.

The decision herein holds only that the 1972 decision in Lamb v. Brown, 10 Cir., 456 F.2d 18, declaring void on constitutional grounds a 1969 Oklahoma statute, 10 Okl.St.Ann. § 1101 (Supp.1969), shall be applied retroactively in the cases before us.

The male habeas petitioners in the cases before us were denied the benefits of the Oklahoma statutes pertaining to juveniles. Those benefits were available to females. Lamb says that this discrimination between the sexes is impermissible. The issue in the cases before us is whether the petitioners should be denied the treatment given the petitioner in Lamb because of the statement in that case that it should not be applied retroactively. Integrity of the fact finding process is not determinative. Basic fairness and essential justice demand that these petitioners be treated no differently than the petitioner in Lamb.

SETH, Circuit Judge

(dissenting):

I must dissent from the majority opinion because, in the final analysis, it appears to me to be based on a pre-Linkletter view of the problem, and on a similar position taken in the Fourth Circuit of Woodall v. Pettibone, 465 F.2d 49 (4th Cir.). The adoption by the majority of a standard that any constitutionally unequal classification requires retroactive application will prevent this court from exercising a permitted and proper freedom of choice, and the use of a worthwhile tool of good judicial administration. The opinion also creates a totally unnecessary conflict with state administration of justice.

To arrive at the result it did, the majority must find that the trials of the sixteen- and seventeen-year-old offenders as adults were in some way defective, and the verdicts arrived at therein were “unreliable.” It so found those trials to be wanting in the ascertainment of the truth. There were no facts relating to these trials to develop this issue, and the unreliability of the trials was found by complete reliance on the rationale of Woodall v. Pettibone, 465 F.2d 49 (4th Cir.).

Woodall v. Pettibone concerned a prior decision which had held invalid a state law permitting the trial as adults of sixteen- and seventeen-year-old offenders for offenses in the city of Baltimore. The court said that the invalid limitation to Baltimore made the trials there unfair. The court there said:

“ . . .To deny juveniles in Baltimore the opportunity of such a defense [‘ . . .of his diminished responsibility as a juvenile’] and to allow it to all other juveniles in Maryland seems to us so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in these proceedings.”

The defense of “diminished responsibility” is, of course, the same matter as the unequal classification; therefore, the unequal classification makes the adult verdicts unreliable under the rationale in Woodall.

The reasoning of the majority here thus is: The classification was unconstitutional, in that some were tried as juveniles and some as adults when all should have been tried as juveniles. Therefore, the verdicts in the adult trials were “unreliable.” The “Therefore” part is difficult to jump, but it is the only way to support the retroactivity result. The step thus must be taken by the majority. The “Therefore” need not, and should not be followed by such a surprise. The complete reliance by the majority on Woodall v. Pettibone, 465 F.2d 49 (4th Cir.), and on the denial of certiorari in that case, is unusual in view of the treatment by the Supreme Court, of the same problem in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, and in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

The Court in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, considers the uneven effect of nonretroactive application of decisions. It would seem preferable to follow Williams and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, rather than Woodall. In Williams, the plurality opinion said on this point, to distinguish it from the situation where the new constitutional doctrine overcomes an aspect of the trial that substantially impairs its truth-finding function:

“It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends.”
In Stovall v. Denno, the Court said: “Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.”

As indicated above, the original adult forum trials must be invalidated to reach the retroactive conclusion. Stovall v. Denno and Williams v. United States do not require nor even lead to such a result, but the majority instead chooses Woodall. Once the adult trials are invalidated, the majority concludes with a sweeping statement which is the basis of the opinion:

“We believe that the principles of ‘basic fairness’ mentioned in Robinson and ‘essential justice’ mentioned in Gosa require that the Lamb decision be applied retroactively.”

The quotation has a disarming ring of simplicity to it, and indeed who can oppose “basic fairness” and “essential justice.” But the choice is not so easily stated and furthermore, neither of the cases referred to leads to the conclusion indicated. The terms quoted above by the majority are not used in the Robinson and Gosa opinions in the way the majority opinion uses them, and certainly did serve as a basis for the decisions.

In Robinson v. Neil, 409 U.S. 505, at 509, 93 S.Ct. 876, at 878, 35 L.Ed.2d 29 the Court said:

“A number of the constitutional rules applied prospectively only under ''the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, [367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081], supra.’’ [Emphasis added.]

The Court gives examples of rules affecting the fairness of the trials.

The issue is not here raised as to the “fairness” of any trial, the procedures as such are not attacked as being unfair, nor is the comparative accuracy of the ascertainment of the truth at issue. The mention of “fairness” of the trial raises an issue not presented by the parties and not in the case.

As to the “essential justice” referred to by the majority in the quotation above, the Court in Gosa did not use the term the way the majority does. The Court in Gosa v. Mayden, 413 U.S. 665, at 685, 93 S.Ct. 2926, at 2938-2939, 37 L.Ed.2d 873 said:

“We must necessarily also consider the impact of a retroactivity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved.” [Emphasis added.]

Thus the Supreme Court again refers to the accuracy of the process by which judgment was rendered or, in other words, when “essential justice” is not involved. Here again there is no such issue before us of the “accuracy” of the process. This matter is raised by the majority. •

It is apparent that the use of the terms quoted by the Supreme Court was to refer to actual procedural-mechanical failures in the trials themselves which rendered the fact-finding process questionable. We, of course, have no specifics here, and nothing whatever relating to the actual fact-finding process. The issues and the initial Lamb case instead concern the selection of alternative processes, the adult prosecution or the juvenile proceedings, each fair and each equally capable of ascertainment of the truth. There are obvious advantages as to penalties and related consequences in the juvenile proceedings over the adult prosecution. Otherwise we would not have these cases. This disparity is, of course, of constitutional magnitude as decided in Lamb, but this does not mean, as the majority decides, that “Therefore” the adult trials did not arrive at the truth and the verdicts are questionable. The choice was one of penalty-procedure, and a choice not dominated nor dictated by matters relating to the ascertainment of the truth. The choice was between two equally good methods to ascertain the truth; the consequences which followed were obviously different. In these circumstances, the result should follow that in Gosa v. Mayden, — prospective application, rather than a pre-Linkletter standard.

The majority opinion would not permit this court in the future to make a determination that an opinion in a criminal appeal be applied prospectively only. If the past adult trials were invalid under the circumstances here present, it is impossible to imagine any situation where nonretroactivity could be applied. Prospective application is permitted under Linkletter, Gosa v. Mayden, Wolff v. McDonnell [418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935], considered in Stovall v. Denno, and other recent cases. Here instead there is imposed the rigidity of prior constitutional theory referred to above.

The Court, in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, said of Linkletter:

“Relying on prior cases, we firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored.”

Regardless of the freedom of choice available, the majority opinion rejects a consideration of the consequences of the decision upon the administration of the criminal laws in the state over the last thirty years. There is no question as to the actual validity or regularity of the convictions in the past under the state classification based on age and sex. The sixteen- to eighteen-year-old offenders who have been convicted from 1941 to 1973 as adults were accorded the due process rights available to all. The state indicates that these number in the thousands. The impact upon the state of retroactive invalidation of these convictions will be very severe and in any event is an unnecessary act.

It is still an unknown factor and ignored by the majority whether the juvenile court would nevertheless have certified these or many other of the many offenders as adults.

I also see no reason why this court cannot designate in an opinion a date when it will be applicable. Historically this has been done, and it is also sound judicial administration to do so in proper circumstances. Under the majority opinion, however, this court is now precluded from doing so. The opinion holds instead that the parties must raise the issue. If the court does it on its own motion, or as an administrative matter, it has uttered some low form of dictum which the opinion says, “ . . . arises no higher than ‘comment merely obiter.’ ” This certainly is not very high, even on the dictum scale, and indeed must be quite bad. As a matter of fact, the original panel in Lamb did this very thing. It set the effective date all by itself, not realizing how very little such a statement “arises,” and so received a chastisement by the majority.

BARRETT, Circuit Judge

(respectfully dissenting):

The majority opinion placed reliance upon the opinions of the Supreme Court in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), and Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), as “recent” decisions dealing with the issue of retroactive versus prospective application of a new constitutional rule. By implication, I interpret the reference to these cases to signify that the majority believes that the Supreme Court thereby generated a shift from rules it had previously laid down governing the subject matter. My reading of the cases does not so indicate.

In Gosa the Court specifically recognized its time-honored dominant considerations determinative of the retroactive versus prospective application of a new constitutional rule, i. e.: (1) the purpose to be served by the new rule; (2) the extent of reliance placed on the old rule; and (3) the effect on the administration of justice of the retroactive application of the new rule. The Court did in those opinions place emphasis on its concern for both basic fairness and essential justice. The difficulty I encounter, however, arises from the fact that the majority opinion recognizes- — as it must— that there was no challenge in Lamb aimed at the accuracy of the truth-finding process. There could not have been such a challenge because the condemned proceedings were undertaken under Oklahoma criminal statutes whereby due process requirements were obviously much more stringent and compulsory on the State than those prevailing under Oklahoma juvenile statutes. That being so, I believe that our Lamb non-retroactive ruling was on all fours with the rule of reason. The issue in Lamb was basically one of procedural law, not substantive law.

In applying the three considerations determinative of the retroactive versus prospective application set forth in Gosa, supra, to the cases at bar, we should first observe that the sole justification advanced by the State of Oklahoma in Lamb for the age-sex disparities was that the disparity was justified against an equal protection constitutional challenge based upon unexplained “demonstrated facts of life.” Lamb v. State, 475 P.2d 829 (Okl.Cr.1970). In our Lamb opinion we did not state that the disparity was without constitutional justification, but rather that no logical justification had been presented for our consideration. It was for that reason that the opinion volunteered that the ruling would not have retroactive application.

Those decisions whereby the courts have granted full retroactive effect to new constitutional rules involve, inter alia: (1) an accused’s right to the assistance of counsel at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); (2) specific procedures designed to determine the substantive voluntariness of an accused’s confession, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); (3) an accused’s right to confront the witnesses against him, Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); (4) an indigent’s right to a free transcript on appeal, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), reh. den. 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480; and- (5) the impropriety of disqualifying prospective jurors because they have certain views as to capital punishment in proceedings involving the possible imposition of such punishment, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. den. 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186. The rules announced in these and many like cases were applied retroactively because they were found to be basic deprivation of rights casting serious doubts upon the reliability of the previous judicial determinations — in other words, challenges to the accuracy of the truth-finding process under the old rule. While these decisions necessarily, dealt with procedural techniques required to effectuate the new rules, each of the decisions were substantive in nature. Our volunteered non-retroactive holding in Lamb, supra, did not involve a substantive ruling.

To be sure, the issue of retroactive-prospective application was not raised by the parties in Lamb. That, however, is of no consequence. It is basic that the Federal Constitution has no voice upon the subject and that, accordingly, retroactive application of new constitutional rules is neither compelled nor prohibited thereby. Tehan v. United States, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) ; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

In Gosa, supra, relied upon by the majority, the Court held that the three-pronged test heretofore referred to, first announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) , required that the decision in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), holding that a serviceman charged with a crime that is not “service connected” is entitled to indictment by a grand jury and trial by jury in a civilian court rather than trial by court-martial, and that the ruling be accorded prospective effect only. And in the recent case of Wolff, Warden et al. v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court reversed the holding of the Court of Appeals that certain due process requirements involving prison disciplinary proceedings were to be applied retroactively. In Wolff, the Supreme Court held that the retroactivity of new procedural rules is effectively foreclosed by its holding in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Court, 418 U.S. on page 573 of its opinion, 94 S.Ct. on page 2983 said:

Despite the fact that procedures are related to the integrity of the fact-finding process, in the context of disciplinary proceedings, where less is generally at stake for an individual than at a criminal trial, great weight should be given to the significant impact a retroactivity ruling would have on the administration of all prisons in the country, and the reliance prison officials placed, in good faith, on prior law not requiring such procedures, (emphasis supplied).

The United States Supreme Court has shied away from applying constitutional rulings retroactively in criminal cases because of the unknown number of convictions which would be affected. DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). The Lamb holding, as noted, was not entered to overcome errors in the criminal trials which impaired the truth finding process and the accuracy of the guilty verdicts [Linkletter v. Walker, supra], or to guarantee a specific constitutional right. The holding involved the procedural issue of forum— not whether Lamb should have been tried but, rather, which forum (Criminal Court or Juvenile Court) should have conducted the proceedings — not whether, but where. The sole purpose was to deter further age/sex discriminations, absent constitutional justification.

In my judgment we must here recognize that Oklahoma relied upon the condemned statute re sex/age differential in all good faith for some thirty-one years without challenge. It is most inappropriate for the Court to now proceed to nullify and void all Oklahoma state convictions from 1941 to 1972 rendered under the condemned statute, involving at least some 2,173 convictions unquestionably accounted for. Furthermore, at the date of our Lamb decision there were 24 males incarcerated under the condemned act, convicted after April 4, 1972, who can overturn their convictions in reliance of the Lamb retroactive application involving, inter alia, the commission of the crimes of Rape, Manslaughter, Burglary, Larceny, and Robbery with Firearms. It is unknown whether or how many could be effectively retried. Releasing those convicted of such serious offenses against persons and property to the public “streets” without knowledge of the ability of the State to effectively undertake the burden of other proceedings, or to seek any recourse would, in my opinion, be wholly contrary to public policy. In addition, we now know that the records involving crimes committed by at least 2,173 males prosecuted under the condemned statute relied upon by Oklahoma officials for thirty-one years will have a most serious effect on the administration of justice by application of the Lamb ruling retroactively because their records must be expunged, again effectively impeding the search for truth — that which I consider the primary objective of the criminal justice system. By comparison, the juvenile records of female offenders under the age of 18 years shall not be expunged. This, I suggest, creates a question of basic fairness. In terms of essential justice, the Oklahoma statutes — although discriminatory between the sexes in the specific age categories — were not discriminatory in terms of application on the particular class, i. e., male or female.

Our ruling here assures that males between ages 16 and 18 in the following four categories of convictions are absolutely “home free” by reason of the retroactive application, i. e: (1) those who were convicted of felony offenses; (2) those whose convictions were the predicate for “former convictions” under enhancement statutes; (3) those who committed misdemeanors; and (4) those whose convictions may have been used to impeach their credibility.

I believe that the following observations made by Mr. Justice Blackmun, in writing for the majority in Gosa v. Mayden, supra, are most appropriate to the case at bar:

We must necessarily consider the impact of a retroactivity holding on the interest of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudication of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved. 413 U.S. at 685, 93 S.Ct. at 2938-2939.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Juan Sergio SALAS, Appellant.
    No. 375, Docket 74-2007.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 6, 1974.
    Decided Jan. 10, 1975.

      Edward N. Leavy, New York City (Leavy & Shaw, New York City, on the brief), for appellant.
    Robert Gold, Asst. U. S. Atty., S. D. N. Y. (Paul J. Curran, U. S. Atty., S. D. N. Y., George E. Wilson and John D. Gordan, III, Asst. U. S. Attys., S. D. N. Y., on the brief), for appellee.
    Before KAUFMAN, Chief Judge, and ANDERSON and MULLIGAN, Circuit Judges.
   PER CURIAM:

Following a jury trial appellant Juan Sergio Salas was found guilty of refusing to submit to induction into the armed forces of the United States on December 4, 1972 in violation of 50 U.S.C. App. § 462(a). On June 21, 1974, the district court denied Salas’ post-trial motions for judgment of acquittal pursuant to F.R.Crim.P. 29 and for arrest of judgment pursuant to F.R.Crim.P. 34 on the grounds that they were based on the so-called “order of call” defense and were thus untimely, citing United States v. Strayhorn, 471 F.2d 661 (2 Cir. 1972), and that in any event Salas had not been prejudiced, citing id. and United States v. Griglio, 467 F.2d 572 (1 Cir. 1972).

The order of call defense was described in Strayhorn as involving “contentions by a Selective Service defendant that his order for induction came out of proper sequence, or, conversely, that others who should have been called before him were not.” 471 F.2d at 662. This court went on to say that the trial courts could deem such defenses waived, in trials beginning after January 1, 1973, if they were not raised before trial through a motion for a judgment of acquittal. See 471 F.2d at 665. Salas did not claim, however, that there were other 1 — A registrants in his local board with higher priorities for call than his “whose inclusion on a monthly list would have ‘bumped’ him off.” 471 F.2d at 664. Rather, he claimed that he was exposed to induction as of December 31, 1971, and was not called during the three months which followed, and therefore under 32 C.F.R. § 1631.6(c) and (d)(5), he was entitled to be placed in a nationwide lower priority selection group from which he would not have been drafted. This is not an “order of call” defense, and the district court was in error in holding that Salas’ post-trial motions were untimely.

The Government concedes that under 32 C.F.R. § 1622.25(a) Salas was improperly classified 2 — S on June 3, 1971 because he was over 24 years of age; that he was subsequently and properly classified 1 — A in November, 1971; that he remained properly classified as 1 — A on December 31, 1971; and that his draft lottery number (70) had been reached during the 1971 calendar year. Consequently, after December 31, 1971, as specified in 32 C.F.R. § 1631.6(c) and (d), the Board was required to place Salas in “Extended Priority Selection Group” and to issue to him an induction order by April 1, 1972, failing which the Board was required to place him in the “lower priority selection group.” The Government also concedes that the Board could not deprive appellant of the time limitation for induction under 32 C.F.R. § 1631.6(d)(5) by improperly reclassifying him 2 — S in January, 1972, and that had appellant been placed in the “lower priority selection group,” he would not have been drafted. While for policy reasons of the. Secretary of Defense no induction orders were issued during the first three months of 1972, this did not constitute, under 32 C.F.R. § 1631.6(d)(5), an “inability of the local board to act” and thereby render the strict time limitations inapplicable. Cf. United States v. Born, 338 F.Supp. 444 (W.D.Mich.1972).

The Government argues that, in any event, appellant has failed to show that he was prejudiced by the Board’s errors and thus cannot now claim that he should be acquitted because the November 1, 1972 induction order was invalid. This argument is fallacious. He suffered the very kind of prejudice 32 C.F.R. § 1631.6(d)(2) and (5) were meant to preclude by establishing a precisely defined and limited time during which a registrant, classified 1 — A, could be drafted. In conjunction with the random selection plan, they were designed to eliminate the frustrations confronting a large proportion of the vulnerable generation because the uncertainties of each one’s status made futile any plans for the future.

The judgment of conviction is reversed and the case is remanded to the district court for the entry of a judgment of acquittal.

      . 50 U.S.C. App. § 462(a) provides, in relevant part:
      “(a) Any member of the Selective Service System or any other person charged as herein provided with the duty of carrying out any of the provisions of this title . , or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty, . . and any person who otherwise evades or refuses registration or service in the armed forces or any of the requirements of this title shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . .”

      . 32 C.F.R. § 1631.6(c) (1972), which reflected changes adopted and reported in the Federal Register as of December 9, 1971, defined the manner in which registrants were to be placed in selection groups, in relevant part, as follows:
      “(1) Extended Priority Selection Group consists of registrants who on December 31 were members of the First Priority Selection Group whose random sequence number had been reached but who had not been issued orders to report for induction.
      (2) First Priority Selection Group:
      (i) 1970. In the calendar year 1970, nonvolunteers in Class 1-A or 1-A-O born on or after January 1, 1944, and on or before December 31, 1950, who have not attained the 26th anniversary of the dates of their birth.
      (ii) 1971 and later years. In the calendar year 1971 and each calendar year thereafter, nonvolunteers in Class 1-A, Class 1-A-O, Class 1-0 or Class 1-H who prior to January of each such calendar year have attained the age of 19 years but not of 20 years and nonvolunteers who prior to January 1 of each such calendar year have obtained the age of 19 but not of 26 years and who during that year are classified into Class 1-A, Class 1-A-O, Class 1-0 or Class 1-H.”
      The regulations went on to state in the relevant portion of Subparagraph (d):
      “(d) Procedures:
      (1) Local boards shall identify registrants in the appropriate groups as provided in this section.
      (2) Members of the First Priority Selection Group on December 31 in any calendar year whose random sequence numbers have not been reached by that date, or members of any subgroup which was not reached during such calendar year, shall be assigned to the priority selection group which is next below the First Priority Selection Group for the immediately succeeding calendar year.
      (5) Members of the Extended Priority Selection Group who have not been issued orders to report for induction and originally scheduled for a date prior to April 1, shall forthwith be assigned to the lower priority selection group to which they would have been assigned had they never been assigned to the Extended Priority Selection Group; except that members of the Extended Priority Selection Group who would have been ordered to report for induction to fill the last call in the first quarter of the calendar year but who could not be issued orders shall remain in the Extended Priority Selection Group and shall be ordered to report for induction as soon as practicable. Circumstances which would prevent such an order shall include but not be limited to those arising from a personal appearance, appeal, pre-induction physical examination, reconsideration, judicial proceeding, or inability of the local board to act.”
      36 Fed.Reg. 23381 (Dec. 9, 1971) at 23382.

      . 32 C.F.R. § 1622.25(a) (1969), applicable at the time provided as follows:
      “(a) In Class II-S shall be placed any registrant who has requested such deferment to continue until such registrant completes the requirement for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever occurs first.”
      32 Fed.Reg. 9790 (July 4, 1967).

      . See note 2, supra.