author: LEVENTHAL, Circuit Judge:

text:
    RHODE ISLAND CONSUMERS’ COUNCIL AND DIVISION OF PUBLIC UTILITIES AND CARRIERS OF the STATE OF RHODE ISLAND, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Algonquin Gas Transmission Co. et al., Intervenors. BOSTON GAS COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Texas Eastern Transmission Corporation et al., Intervenors. MUNICIPAL DEFENSE GROUP, Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Arkansas-Missouri Power Co. et al., Intervenors. CONNECTICUT PUBLIC UTILITIES COMMISSION, Petitioner v. FEDERAL POWER COMMISSION, Respondent, Arkansas-Missouri Power Co. et al., Intervenors.
    Nos. 73-1159, 73-1223, 73-1292 and 73-1337.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 6, 1974.
    Decided Aug. 28, 1974.

      Dennis J. Roberts, II, Providence, R. I., for petitioners in No. 73-1159.
    .John S. Schmid, Washington, D.C., with whom John W. Glendening, Jr., Washington, D.C., was on the brief for petitioners in No. 73-1223.
    William T. Miller, Washington, D.C., with whom Charles F. Wheatley, Jr., Washington, D.C., was on the brief for petitioners in No. 73-1292.
    John H. Burnes, Atty., Federal Power Commission with whom Leo E. Forquer, Gen. Counsel and George W. McHenry, Jr., Sol., Federal Power Commission, were on the brief for respondent.
    J. Evans Attwell, Houston, Tex., was on the brief, for intervenor Texas Eastern Transmission Corporation.
    Robert K. Killian, Atty. Gen., for the State of Connecticut, Richard L. Barger, and F. D. Neusner, Asst. Attys. Gen., were on the brief for petitioner in No. 73-1337.
    Charles E. McGee, John T. Ketcham and Robert J. Haggerty, Washington, D.C., were on the brief for intervenor Algonquin Gas Transmission Company.
    Richard M. Merriman, J. Richard Tiano and Peyton G. Bowman, III, Washington, D.C., entered appearances for intervenors Arkansas-Missouri Power Company and Associated Natural Gas Company.
    George J. Meiburger and Platt W. Davis, III, Washington, D.C., entered appearances for Texas Gas Transmission Corporation.
    Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.
   LEVENTHAL, Circuit Judge:

These cases are before the court on petitions to review an order of the Federal Power Commission approving an interim plan for curtailment of natural gas deliveries by Texas Eastern Transmission Corporation, and for certain changes in Texas Eastern’s rates. Petitioners include natural gas distributors purchasing gas that flows through Texas Eastern’s system, some directly from Texas Eastern and others from Algonquin Gas Transmission Company, a New England pipeline which currently obtains its entire supply from Texas Eastern. Other petitioners are Rhode Island Consumers’ Council, the Rhode Island Division of Public Utilities, and the Connecticut Public Utilities Commission. Intervening in support of the Commission’s order are Algonquin, Texas Eastern and several large customers of the latter.

Petitioners challenge both the allocation and the rate structure changes ordered by the Commission. We decline to pass upon certain objections to the allocation provisions, in view of events that have occurred subsequent to the Commission’s order. We do consider the merits of the objections leveled by petitioners against the rate tariff order, particularly the Commission’s approval of retention of “demand charge” provisions notwithstanding termination of entitlement to contract “demand” quantities. We reject these contentions.

I. PROCEEDINGS BEFORE THE COMMISSION

Taking note of the nation’s gas shortage, the Commission on April 15, 1971, issued Order No. 431 directing all jurisdictional pipelines to submit reports to implement the FPC’s policy that pipelines take all steps necessary to insure an adequate and reliable gas supply for the 1971-72 winter and thereafter. The FPC directed pipelines anticipating curtailment of deliveries to file a tariff sheet, pursuant to §§ 4 and 5 of the Natural Gas Act, setting forth a curtailment plan.

Texas Eastern initially responded to Order 431 with a statement that any curtailment necessary would be carried out in accordance with the existing tariff, which called for pro-rata reductions of customers’ entitlements under their contracts. Subsequently, on October 19, 1971, Texas Eastern advised the Commission that it would be necessary to curtail deliveries by approximately 15 billion cubic feet during the winter of 1971-72. At the same time, Texas Eastern filed a tariff change eliminating an obligation to refund certain charges when it curtailed deliveries as a result of a supply shortage. The Commission docketed Texas Eastern’s tariff change and consolidated further proceedings with those to be held on the delivery curtailment plan. Also joined with the foregoing were proceedings on the curtailment plan and a similar tariff change filed by Algonquin.

Following a November 19, 1971, order by the Commission that Texas Eastern should distribute “evidence in support of the curtailment programs to be pursued” and that the possibility of a settlement should then be explored, the parties commenced negotiations that stretched into the spring of 1972. These culminated in a proposal for an interim curtailment of Texas Eastern deliveries through September 1, 1973; the curtailment plan incorporated the tariff change Texas Eastern had sought by its prior filing.

On August 28, 1972, the proposal, which had been drafted by representatives of Texas Eastern and certain Texas Eastern customers, was presented as a nonunanimous settlement proposal to an administrative law judge (ALJ). The proposal was opposed by several parties, including petitioners here. The ALJ rejected requests for an evidentiary hearing concerning the terms of the proposed plan, but did allow Municipal Defense Group (MDG), a petitioner here, to serve Texas Eastern with interrogatories. Following the filing of interrogatories and answers and other documentary materials in support of and opposition to the proposed plan, the ALJ certified the record to the Commission.

On December 1, 1972, the Commission approved the proposal as an interim plan for curtailment through September 1, 1973. It turned aside objections by petitioners to the basis for allocation of gas to customers, to the allocated amounts themselves, to the rate structure changes, and to the procedures followed by the ALJ in receiving evidence bearing on the proposal. Petitioners’ application for rehearing was denied on January 26, 1973, and this appeal followed.

II. THE ALLOCATION PROVISIONS

Nature of the Provisions

The plan approved by the Commission provided that each Texas Eastern customer was to receive an annual “entitlement” (hereinafter “allocated entitlement”) to supersede Texas Eastern’s contract commitment to deliver a specified volume of gas. Each customer’s allocated entitlement was based initially upon its historical annual purchases of gas from Texas Eastern; upward adjustments from the historical purchase “baseline” were then made to reflect additional needs of some customers.

In the event Texas Eastern’s gas supply did not allow it to fill each customer’s allocated entitlement, the plan provided that further curtailment of deliveries would be accomplished by ratable reductions in allocated entitlements. Small-volume customers, defined as those with contractual entitlements of 10,000 Mcf per day or less, were exempt from daily curtailment below allocated entitlements (Article III). Under Article IV, other customers were eligible to seek an emergency exemption from daily curtailment to avoid jeopardy to residential and commercial loads.

Challenges to the Allocation Provisions

Petitioners’ principal challenges to the allocation provisions may be summarized as follows:

1. The Commission’s use of historical purchases as the baseline for allocated entitlements was unreasonable in that there was no differentiation among consumptive uses of gas, to the detriment of small-volume customers serving high-priority uses of gas;

2. The Commission unreasonably refused to guarantee that the exemption from curtailment below allocated entitlements available to small-volume Texas Eastern customers would be extended to Algonquin customers meeting the qualifying criteria; and

3. The Commission erred in refusing to require presentation of the settlement proposal by a sponsoring witness, available for cross-examination as to the methods used to calculate individual adjustments to the historical baseline in determining allocated entitlements, an error which led the Commission to approve the proposal on an inadequate record.

Decision to Disclaim Resolution of Challenges to Allocation Provisions

While some of the petitioners’ objections are not without force, the court concludes that, in light of events occurring since the Commission’s order, including the expiration of the allocation plan in September, 1973, judicial resolution of challenges to the allocation provisions is now inappropriate. The expiration of the plan, and the accompanying inability to change the allocation of gas to customers, does not alone deprive the court of a “case or controversy” to adjudicate, for the court is empowered to decide the questions presented if they are likely to recur, and their immediate resolution will serve important public interests. Such a course might be appropriate if petitioners challenged the Commission’s power to act, or a basic approach it is likely to follow in future allocation proceedings. But petitioners’ objections cannot be so characterized. The Commission’s power to mandate allocations, upheld by the Supreme Court in FPC v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), is beyond challenge. And subsequent to the approval in this case of what it stressed was an “interim curtailment settlement,” the Commission has announced a new approach to permanent curtailment plans. For the reasons stated below, we conclude that this later permanent approach makes it unlikely that resolution of petitioners’.particular objections to Texas Eastern’s interim plan would have any significant impact on future allocation proceedings. Accordingly, and in view of our inability to give petitioners meaningful relief even if they should prevail, we decline to resolve petitioners’ challenges to the allocation provisions. Such a disposition is analogous to a decision to withhold declaratory relief without reaching the merits, as in A. L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 331, 82 S.Ct. 337, 342, 7 L.Ed.2d 317 (1961), where the Supreme Court stated: “sound discretion withholds the remedy where it appears that a challenged ‘continuing practice’ is, at the moment adjudication is sought, undergoing significant modification so that its ultimate form cannot be confidently predicted.” We now set forth in some detail the considerations underlying our decision to disclaim determination of petitioners’ challenges to the allocation plan.

Commission Statement of Policy of January 8, 1973

Subsequent to its order of December 1, 1972, approving Texas Eastern’s interim allocation plan, the Commission issued Order No. 467, dated January 8, 1973, a Statement of Policy, which advised pipelines that the Commission would in the future favor allocation plans that discriminate among end-uses of natural gas with “high-priority” users protected from curtailment until lower-priority users were without gas entirely. Order 467 contains eight categories of consumptive uses, ranked in the order in which they will be protected from disruption due to shortage. In its order of January 24, 1973, denying petitioners’ application for rehearing, the Commission provided that Texas Eastern’s filing for a curtailment plan to become effective September 1, 1973, should take into account the policies set forth in Order No. 467, and include detailed submissions so that end-use determinations can be made.

While providing that “in specific cases, opportunity will be afforded interested parties to challenge or support this policy,” Order 467 plainly- evinces the Commission’s intention to adopt, at least as a point of departure, the approach based upon end-use priorities when reviewing future allocation plans submitted for approval. In its January 24, 1973, order denying rehearing on Texas Eastern’s interim curtailment plan, the Commission (at p. 9) drew attention to the newly-promulgated Order 467 and directed Texas Eastern to consider end-use priorities in the preparation of a permanent curtailment plan. More recently, the principle of designating end-use priorities has been reflected in permanent plans approved since promulgation of Order 467. See United Gas Pipe Line Co., 49 FPC 179 (1973), modified, 49 FPC 1211 (1973); El Paso Natural Gas Co., Opinion No. 697, June 14, 1974.

Use of Historical Purchases As Baseline for All Customers

Petitioners contend that the Commission’s use of historical purchases as the baseline for allocated entitlements to all customers constitutes an unreasonable discrimination against small-volume Texas Eastern customers, having a low ratio of historical purchases to contract entitlements but serving end-uses deserving the highest degree of protection from curtailment. The outcome is most egregious, petitioner MDG contends, because the allocated entitlements of industrial customers are boosted by past purchases of gas made on an interrupti-ble basis — deliveries ordinarily made by a pipeline only when the needs of higher-priority customers have been fully met.

We perceive some merit in the contention that an approach that is blind to the differing degrees of hardship disruption of service may impose on different customers may constitute an unreasonable abandonment of reasoned inquiry merely for the sake of a convenient “rule of thumb.” At the same time, we discern in the provisions for exemption of small-volume customers from daily curtailment below allocated entitlements, and the emergency exemption for others, a sensitivity to special hardships worked by curtailment. In addition, in its order denying rehearing, the Commission addressed MDG’s contention that high-priority uses had been given short shrift, stating: “While it may be true, as MDG contends, that Texas Eastern’s larger customers will use part of their allotments for industrial purposes, the record indicates that this is the intent of the smaller customers also.” Finally, the Commission noted that extraordinary relief under § 1.-7(b) of its rules was available to customers having special hardship.

A more currently relevant consideration, however, is that the policy outlined in Order 467 meets the concern which petitioners raise. So long as the Commission continues to focus attention on establishing end-use priorities, there is little prospect of a recurring claim that it has been blinded by historical usage alone. Accordingly, we see no warrant for a declaration as to the validity of the technique employed in Texas Eastern’s interim, and now expired, curtailment plan.

Refusal to Mandate Exemption for Algonquin Customers

Similar considerations govern our treatment of the objection raised by small-volume Algonquin customers to the Commission’s refusal to guarantee them the same exemption from curtailment below allocated entitlements that was granted their counterparts purchasing directly from Texas Eastern. The Commission’s response to the small-volume Algonquin customers’ demands for a guarantee of equal treatment was a statement that Algonquin’s allocation should be examined separately, notwithstanding the fact that Algonquin obtains its entire supply from Texas Eastern, in view of the Commission’s policy that each pipeline must be “responsible for its own curtailment plan.”

We are concerned about the possibility that a rigid procedure of “one pipeline at a time” may, as a practical matter, foreclose equal treatment of substantially equal customers, identical except for the fact that some customers purchase directly and others through a major “customer” pipeline. Refusal to provide for the interests of the indirect purchasers in the initial proceeding raises serious problems, unless justified by overriding considerations of administrative necessity. In Order 467, however, the Commission has acknowledged that discrimination among end-uses requires equal treatment of direct and indirect purchasers having consumptive uses of the same priority, and we read its provisions as eschewing an inflexible rule that truncates the inquiry regardless of the circumstances.

Hearing Procedures and Record

At this juncture we think it appropriate to say that the record in this case is not free from difficulty. The allocated entitlements arrived at in the course of settlement negotiations consisted of historical purchase baselines and individual adjustments to take care of special needs. Municipal Defense Group asserted a need to cross-examine a sponsoring witness to determine the extent of individual adjustments to the baselines and the reasons for making them; the Administrative Law Judge ruled that submission of interrogatories were adequate. We have some doubt that the interrogatory responses filed by Texas Eastern and affidavits in the record sufficiently disclose the basis for individual adjustments to permit a conclusion that the Commission, by its adoption of the settlement proposal, has “genuinely engaged in reasoned decision-making.” Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971).

It appears, at least upon an initial examination of the record, that the reasons for some adjustments are rather vaguely described as “to reflect historical purchase patterns,” that there is frequently no identification of controlling factors — such as nature of end use, the importance of end use to ultimate consumers or to the community at large, or the date of a commitment — that impelled adjustment, and that adjustments were in some instances made upon data submitted to Texas Eastern and not contained in the record.

The difficulties for the reviewing court presented when the record fails to disclose with unmistakable clarity the reasons for the governing provisions of the agency’s action are exacerbated where, as here, the terms of its order have originated in proceedings from which some affected parties have been excluded. Compare Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 483 F.2d 1238 (1973). The Commission’s desire for the expedition afforded by settlement proposals, even non-unanimous ones, is understandable, particularly where it is concerned with provisions having a quite temporary life. Nevertheless, the encouragement of settlement agreements gives rise to a complementary obligation to avoid the appearance as well as the reality of special favoritism, by insuring that the basis for action taken is placed on the record for all parties to see.

The need for an adequate record is not rigidly tied to particular procedures. Our cases have consistently held that the procedures required are those appropriate to the issues raised. See e. g., American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed. 2d 75 (1966); International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973). Sua sponte inquiry by the agency may, under certain circumstances, provide the requisite clarity quite as well as the full-dress evidentiary hearing demanded by Municipal Distributors Group here. We do caution, however, that the decision in Pennsylvania Gas & Water Co. v. FPC, 150 U.S.App.D.C. 151, 463 F.2d 1242 (1972), which upheld the Commission’s approval of a non-unanimous settlement proposal on a record consisting only of written submissions, is not to be taken as an invitation to dispense with further inquiry whenever the Commission can find some level of descriptive fact at which all parties agree. When important decisions turn on the particular weight to be attributed to certain facts, the Commission may have a duty to probe beyond “canned” writings or to allow the parties to illuminate the issues through exposure to questioning designed to separate inferences from hard data and ventilate interpretative assumptions.

Having identified some difficulties, we decline to determine whether, as petitioners argue, the record and the procedures used to compile it are fatally deficient. Claims such as these will undoubtedly arise again as the Commission approves permanent allocation plans, but they are invariably tied closely to the record and circumstances of the particular case in which they arise. Even if petitioners should prevail, our decision would contribute little in the way of general guidance relevant to future proceedings. Accordingly, it would not be a productive judicial exercise to unravel the record in order to reach the merits.

III. CHANGES IN TEXAS EASTERN’S RATE TARIFFS

The rate change to which petitioners object relieves Texas Eastern of the obligation to refund demand charges when it is unable to meet contractual commitments because of a shortage of its supply. Many, although not all, Texas Eastern customers pay a two-part rate, consisting of a “demand charge” and a “commodity charge.” The customer pays a demand charge for the right to demand a specified volume of gas daily; once fixed by the customer’s maximum daily entitlement, the charge does not vary with the amount of gas consumed. The separate commodity charge is assessed for each unit of gas delivered to the customer. Prior to the modification here at issue, Texas Eastern’s tariff provided for refunding at least a portion of the demand charge when a customer’s demand for his entire daily entitlement could not be met. The tariff change approved by the Commission relieves Texas Eastern of this obligation if its failure to deliver is attributable to a supply shortage.

Petitioners contend that relieving Texas Eastern of the refund obligation while at the same time permitting it to make deliveries below contractual entitlements is patently unreasonable and contrary to the Natural Gas Act. The reasonableness of the Commission’s action must be assessed in light of its economic effects. See Permian Basin Area Rate Cases, 390 U.S. 747, 790-792, 88 S. Ct. 1344, 20 L.Ed.2d 312 (1968). We turn to an assessment of these.

The tariff change permits a de facto increase in the average price of gas to any customer paying a demand charge, the amount of the increase dependent upon the amount of gas received and the amount by which gas delivered falls short of a quantity demanded pursuant to the contract. The Commission found that Texas Eastern would not recover its fixed costs at the rates then prevailing so long as a shortage reduced the amount of gas available for sale, and accordingly concluded that the price increase effected by the tariff change was justified in order to mitigate the pipeline’s revenue loss. Petitioners do not dispute that the price increase is cost-based, but contend that loss of revenue resulting from supply shortage should be borne by pipeline investors. Petitioners support this contention by referring to decisions of the Commission in past years which identified the risk of a shortfall in supply of gas as a factor justifying increments to the rate of return.

Whether a price adjustment ought to be allowed to protect investors involves a “balancing of the investor and the consumer interests” that is entrusted to the Commission. FPC v. Hope Natural Gas Co., 320 U.S. 591, 603, 64 S.Ct. 281, 288, 88 L.Ed. 333 (1944). Here the Commission was engaged in an exercise of discretion when it held that the emergency and severity of the shortfall warranted a price increase, a position it maintained with the comment that investors still bore losses of fixed costs ordinarily recovered through a component of the commodity charge, which it was leaving undisturbed. Considerations like these are peculiarly a matter for appraisal by the administrative agency and we do not discern the kind of unreasonableness that would warrant judicial intervention.

Petitioners object in broad terms to a “breach of contract,” but there has been here no unilateral attempt by the pipeline to modify a fixed-price contract with a customer, as was the case in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956). In its order denying rehearing the Commission characterized the arrangements between Texas Eastern and its customers as contracts like those considered in United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153 (1958), agreements to provide service at whatever rates are lawfully in effect under the Natural Gas Act. This characterization has not been contested.

The conclusion that the price increase is cost-based does not necessarily dispose of all questions of validity of rates under the Act. To avoid any inference that the court is approving all aspects of the rate schedule, we identify a problem raised by the court at oral argument, whether the Commission’s order is not subject to challenge because it distributes the burden of the increase unevenly among Texas Eastern's customers: There is relative advantage (a) for those customers which pay no demand charge, and (b) among the purchasers paying the demand charge, for those who receive substantially their entire contract demands.

To determine whether such discriminatory effects of a broadside cancellation of a demand charge refund obligation would be justified is a question we do not reach, because of the petitioners’ failure to present it in their objections to the Commission. Section 19(b) of the Natural Gas Act, 15 U.S.C. § 717r(b), provides, in pertinent part, that

[n]o objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.

The purpose of this provision is to insure that the Commission has an opportunity to deal with any difficulties presented by its action before the reviewing court intervenes. FPC v. Colorado Interstate Gas Co., 348 U.S. 492, 75 S.Ct. 467, 99 L.Ed. 583 (1955). This exhaustion requirement comports with the general function of judicial review to insure that an agency has “taken a ‘hard look’ at the salient problems.” Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert, denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971). The agency cannot reasonably be expected to take a hard look unless the parties participate in the task of identifying the hard problems, and of bringing to light pertinent information and analysis bearing on their resolution. The agency’s obligation presupposes a burden on the part of interested parties to draw attention to the consequences of proposed action that adversely affects their interests.

The objections to the demand charge that were submitted to the Commission, which parallel those presented to this court on appeal, failed to meet this burden. On appeal, MDG’s objections appear in its Brief (p. 48 ff) under the caption: “It is unlawful to permit Texas Eastern to collect a demand charge for gas it is not delivering.” MDG asserts that the FPC has unlawfully ignored the interests of consumers, an argument highlighted by reference to the circumstance that purchasers must not only bear the higher price of gas to Texas Eastern, but also expend substantial sums for substitute fuel when deliveries are curtailed. Objections like these have a ring of eloquence, but they are, in effect, a contention that the monetary consequences of a shortfall of gas must be borne by the investors. These objections simply do not focus on discriminatory impact of the Commission’s action as between different purchasers. It would be contrary to the purpose of § 19(b), and the concept of exhaustion of administrative remedies, to accept such a broadside objection as sufficient to alert the Commission to particular and possibly remediable problems. We are precluded by § 19(b) from pursuing the discriminatory problem we have identified.

-» * •>:• * * -»

For the reasons stated in Part II, supra, we decline to reach the merits as to the allocation provisions of the Commission’s order. As to the demand charge provisions, the objections raised by petitioners on the record are rejected and the order is affirmed.

So ordered.

      . The FPC’s Order No. 431 (“Order Promulgating Statement of General Policy”), April 15, 1971, promulgated § 2.70 under its General Rules, 18 C.F.R., cli. 1, subch. A, Part 2, entitled “Measures for the Protection of Reliable and Adequate Natural Gas Service,” see 36 Fed.Reg. 7505 (1971).

      . Tlie Commission initially suspended the tariff change pursuant to Section 4 of the Natural Gas Act. Subsequently, during the course of the consolidated proceedings, the Commission allowed the change to take effect, subject to Texas Eastern’s refund obligation if the change were later disapproved.

      . See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) ; United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ot. 894, 897, 97 L.Ed. 1303 (1953) (possibility of recurring issue involving same parties, “together with a public interest in having the legality of the practices settled”) ; Southern Pacific Terminal Company, v. ICC, 219 U.S. 498, 515 (1911) (orders “capable of repetition, yet evading review”) ; Friend v. United States, 128 U.S.App.D.C. 323, 325, 388 F.2d 579, 581 (1967) (issue “continuing and of public importance”) ; Dyer v. SEC, 266 F.2d 33, 46^17 (8th Cir.), cert. denied, 361 U.S. 835, 80 S.Ct. 86, 4 L.Ed.2d 75, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1959). While courts have treated these matters under the single rubric of mootness, e. g., United States v. W. T. Grant Co., supra, it has been suggested that Article III requirements are satisfied by the adversary posture of the litigants and that considerations of recurrence and imblic importance go to the propriety of remedy. See Note, Mootness on Appeal in the Supreme Court, 83 Harv.L.Rev. 1672, 1687-94 (3970).

      . There appear to be no related issues on which the validity of the allocation provisions might bear. Petitioners do not allege the existence of any contract remedies, as in Monsanto Co. v. FPC, 149 U.S.App.D.C. 396, 463 F.2d 799 (1972), that might be tied to a determination of the validity of the allocation. And while a determination as to the validity of the allocation might be a' j)re-requisite to resolving a challenge to discriminatory impact of the jirice structure changes ordered simultaneously by the Commission, no such challenge is before us for the reasons stated in part III of the opinion.

      . Review of Order No. 467 was sought in this court. It was held to be a non-reviewable statement of policy. Pacific Gas and Electric Co. v. FPC, 164 U.S.App.D.C. -, 506 F.2d 33 (1974).

      . Order 467-A, 49 FPC 217 (1973), and Order 467-B, 49 FPC 583 (1973), promulgated modifications, not here material, to the priority scheme of Order 467.

      . Article IV, embodying the exemption, begins “It is the intent of all parties that residential and commercial loads supplied from Texas Eastern’s system be fully protected.” (JA 37).

      . Once a purchaser's end-uses have been identified and classified, a question may still arise as to whether its gas “needs” are more appropriately measured by its contract entitlement or the volume of gas it has historically purchased. The Commission has not used a rigid rule; in some cases it has found contract entitlement appropriate, while in others it has found historical purchase a better indicator of uses which can least withstand disruption. Although the petitioners here have contract entitlements exceeding their historical purchases, this is not always the case; the Commission has on occasion found that customers consistently buying gas in excess of the contractual amount had expectations of continued service warranting protection from the effect of shortage. Compare El Paso Natural Gas, supra, Order 697 at 20-21 & 29 with United Gas Pipe Line Co., supra, 49 FPC at 1219. We advert to these findings as illustrative of the point that the reasonableness of a choice between contract entitlement and historical purchases may depend upon the particular circumstances of the case.
      Insofar as petitioners object to the use ot historical purchases in arriving at. their allocated entitlements, an assessment of that claim would require a detailed review of the record, which we decline to undertake for the reasons stated in the last paragraph of Part II of this opinion.

      . The Commission may have had in mind such considerations, although their force in this case is diluted by the consolidation of proceedings on curtailment plans for Texas Eastern and Algonquin. The Commission denied a motion by Algonquin to sever proceedings, reasoning that since “Algonquin’s supply will be directly affected by the decision rendered in the Texas Eastern Proceeding. ... a decision in the Algonquin proceeding could be rendered simultaneously with a decision in the Texas Eastern case.” Order of December 23, 1971, at 3.

      . These difficulties cannot simply be waived away by the observation that disappointed customers can apply for extraordinary relief if their allocated entitlements are insufficient to cover gas “needs.” A firm’s gas “needs” are determined, in the final analysis, by application of standards set by the Commission. A gas distributor, and the ultimate consumers he serves, have demands for gas. Failure to meet demands may mean a small annoyance for some users, considerable inconvenience for others, and hardship bordering on catastrophe for still others. It is for the Commission to say what demands are so inflexible that they are treated as “needs,” and the place where the Commission draws the line can be gleaned only from observations about how it treats firms and consumers. Realistically, a firm or consumer cannot assert its “needs” without some reference to how the Commission has dealt with other claimants.

      . More recently in Mobil Oil Corp. v. FPC, supra, the court cautioned that “the Commission would not be free to adopt factual assertions {such as settlement offers) which had not been subject to examination and testing by opposing parties.” [Emphasis added], 157 U.S.App.D.C. at 260 n. 93, 483 F.2d at 1263 n. 93.

      . Petitioners also object to the allocation provisions on the ground that small volume customers should be allowed to qualify for the emergency exemption contained in Arti-ele IV as well as the small customer exemption of Article II. Insofar as petitioners assert that they are entitled to the benefit of two provisions designed as alternatives, it appears that they have failed to perceive that the exemptions give relief only from curtailment below allocated entitlements; the entitlements iiroscribed in Article I are not in any event to be exceeded. Since petitioners’ contention turns largely on an interpretation of the plan itself, we decline to pass upon it for the reasons stated above.

      . The refund was calculated at a rate of 2.7 cents per mef of the deficiency. Municipal Defense Group brief, p. 49.

      . Texas Eastern’s tariff revision to effect the change, first suspended by the Commission pursuant to § 4 of the Act, had taken effect in the course of the consolidated proceedings. The settlement proposal presented to the Commission provided that the refund obligation was to be restored and an adjustment of commodity rates made to allow the inpeline to recoup revenue lost by making refunds. Since Texas Eastern had never made the commodity adjustment proposal in a tariff revision filed under § 4, the Commission saw a statutory bar to making commodity rate changes in its December 1, 1972, order in the provision of § 5 that the Commission lacks “power to order any increase in any rate contained in the currently effective schedule ... on file with the Commission, unless such increase is in accordance with a new schedule filed by [a] natural gas company.” Accordingly, the Commission ordered that Texas Eastern would continue to be relieved of its refund obligation until approval of a commodity rate change proposed by the pipeline.

      . Although Rhode Island Consumers’ Council quarrels with the evidence in support of the Commission’s action, its contention is that in view of “the numerous serious questions raised by sister federal agencies of the bona fides of the gas shortage” the Commission erred in relying upon data submitted by Texas Eastern to establish a shortage of its supply. (R.I. Brief at 15). Evidence in the record showed a consistent gap between acquisitions and contract demands during the period 1969-1970, and more recent deficiencies in Texas Eastern’s total supply. (J.A. 1, 235). The Council does not suggest an alternative source of data of greater reliability. IVe do not disturb the Commission’s finding of shortage.

      . See also MDG Brief at 50: “It defies all notions of justness and fairness and is contrary to sound public policy to require customers to reimburse the Company for gas not received. The Company — not the customer — is the party guilty of breach of contract, and the Company should not be rewarded, and the customer penalized, for the Company’s failure to honor its commitments.”

      . Boston Gas Brief at 16-17; Brief for Rhode Island Consumers’ Council at 15; Brief for Connecticut Public Utilities Commission at 7-8.

      . Following oral argument, at which the problem of discriminatory impact was identified by questions of counsel, Texas Eastern represented, in a submission filed March 11, 1974, that discriminatory impact was not the subject of an objection before the Commission. Memorandum of Intervenor on New Issues Raised During Oral Argument at 2 n. 2. This assertion has not been challenged by any petitioner. The application for rehearing submitted by MDG, the only such application in the Joint Appendix filed with the court, parallels the argument made in its brief on appeal.

      . Petitioners’ final contention is that the Commission’s order is contrary to the Act for its failure to find that Texas Eastern’s existing tariff was “unjust, unreasonable, unduly discriminatory, or preferential.” 15 U.S.C. § 717d. A finding that tracks the statutory language is not accepted without scrutiny beyond the words. Similarly, an order is not invalidated by mere failure to use the magic words. A court may reverse for failure to make a statutory finding in haee verba, when it is doubtful whether the agency took into account the pertinent standard. We have no doubt here that the FPC was aware that the issue was whether Texas Eastern had shown that the existing tariff was unjust or unreasonable. The FPC should have said so expressly, but in this case we think there was “harmless error,” not warranting reversal.


source: Caselaw Access Project

author: MacKINNON, Circuit Judge: BAZELON, Chief Judge

license: Public Domain

text:
    UNITED STATES of America v. David E. DOUGLAS a/k/a David D. Mitchell, Appellant.
    No. 72-2150.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 30, 1973.
    Decided Aug. 9, 1974.
    As Amended Aug. 13, 1974.
    Bazelon, Chief Judge, concurred and filed opinion.

      Raymond E. Cahill, Washington, D. C. (appointed by this court) was on the supplemental memorandum filed by appellant.
    Earl J. Silbert, U. S. Atty., John A. Terry, Roger M. Adelman and Steven R. Schaars, Asst. U. S. Attys., were on the supplemental memorandum filed by ap-pellee.
    Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit Judges.
   MacKINNON, Circuit Judge:

The record now comes before us supplemented following our remand for the taking of additional testimony on the claim that appellant was denied his “right to a speedy . . . trial.” Specifically, we requested further details on three points: (1) the circumstances between November 11, 1971 and March 1, 1972 as to the appointment of counsel; (2) the circumstances of the parole revocation proceeding and whether appellant had counsel in those proceedings and (3) the extent of the unavailability of the complaining witness between March 17, 1972 and August 31, 1972 when appellant was tried. We find no error in the trial and affirm the judgment.

I

Appellant was arrested on August 28, 1971 for several alleged offenses. The same day an attorney, Mr. Kapinus, was appointed under the Criminal Justice Act to represent him in the Superior Court and the preliminary hearing was continued until September 2, 1971. On that day the preliminary hearing was held as scheduled and appellant was “Held for action of the Grand Jury.” Bond was set at $5,000. The courts at that time were in a transition stage under the District of Columbia Court Reorganization Act (Tr. I, 42) but the United States District Court still had jurisdiction of appellant’s alleged offenses.

On November 4, 1971, two months after the preliminary hearing, a four count indictment was returned charging appellant with:

(1) First degree burglary (D.C.Code § 22-1801(a));
(2) Petit larceny (D.C.Code § 22-2202);
(3) Unauthorized use of motor vehicle (D.C.Code § 22-2203);
(4) Grand larceny (D.C.Code § 22-220Í).

On November 11, 1971, U. S. Magistrate Burnett appointed Bettie Benjamin “counsel to defend” appellant and the case was assigned to Judge Bryant under regular calendar procedures. Miss Benjamin received a notice of her appointment dated November 15, 1971 accompanied by a notice that the arraignment of her client was scheduled for November 19, 1971. Prior to the scheduled arraignment Miss Benjamin went to interview her client. Concerning such event she testified:

Q Do you recall what happened at that time?
A At that time I came in and went into the lockup to interview Mr. David Douglas. When I went into the lockup, he asked me where was his attorney. He indicated that he had an attorney who had been appointed to represent him in the Superior Court. And he wanted that attorney to represent him for this matter.
-X- *- * * * *
Q Did he tell you the name of that attorney ?
A He was unable to fully articulate the name of that attorney, and I did not write it down.
Q All right. Did you participate in the arraignment itself that was held that day?
A No. I did not.
Q Can you explain the circumstances of that?
A When the matter was called, I represented to Judge Bryant that Mr. Douglas wanted to be represented by the attorney who had represented him in the Superior Court. At that time, as best I can recall, Judge Bryant appointed an attorney name [sic] K-a-p-i-n-u-s to represent the defendant for arraignment only.
Q That is Mr. Kapinus. Did he, to your recollection represent the defendant at arraignment on November 19th?
A Yes, he did.

Tr. II, 52-53. Mr. Kapinus also testified as to his impressions of the circumstances at the arraignment on November 19, 1971:

A . And as I recall, the arraignment had been concluded. The Court indicated that counsel would be notified, and I left assuming that I would be appointed to the case but apparently his other attorney’s name appeared on some record and consequently she was brought into the case to follow the proceeding on until the end.
Q Did you represent Mr. Douglas in any fashion in this case after that day?
A No.

Tr. Ill, 86-87 (emphasis added). Mr. Kapinus did, however, represent appellant as his counsel throughout his entire parole revocation proceeding which was then underway and which continued well into 1972. The revocation hearing was held on March 17, 1974, and the attempted revocation of parole was based on the alleged commission of the offenses on August 28th for which appellant was indicted.

Subsequently Miss Benjamin received a notice from the Clerk’s office dated February 25, 1972, informing her of a status call of the case on March 1, 1972. (Tr. II, 53) In the interim she had assumed she no longer represented appellant since she had informed the court that appellant “wanted [Kapinus] . to represent him for this matter” (Tr. II, 53), and had concluded in line with Kapinus’ assumption following the arraignment “that [he] would be appointed to the case” (Tr. Ill, 87). Nevertheless, Miss Benjamin appeared in court pursuant to the notice, made an oral motion to vacate her appointment and then the court appointed Matthew Black to represent appellant (Tr. II, 53). One possible explanation for not appointing Mr. Kapinus was that he was a possible witness at the trial, since the defense was intoxication and Kapinus had observed appellant’s condition early in the morning of August 28th (Tr. I, 42). Thereafter, Mr. Black represented appellant as his trial counsel.

It is significant that the failure of counsel to act for appellant in the inter-1m between the date of his preliminary hearing, his arraignment on the indictment on November 19, 1971, and the status call on March 1, 1972, did not cause any delay in the trial of the case. Obviously, the trial could not have taken place in September or October, even if the defendant had been indicted earlier, because of the status of the judge’s calendar. Also, from October 1971 through February 1972 Judge Bryant was engaged in trying the highly important United Mine Workers Election Case (Tr. I, 44-45). As soon as that trial finished the judge promptly conducted a status call on March 3, 1972, continued this case to March 10, 1972, and set the trial for March 17, 1972. This date was agreeable to all parties. No prejudice was claimed up to this point.

However, the case was not tried on March 17th because of the enforced absence of the complaining witness, Miss Kenna, whose apartment had been burglarized. When the U.S. Attorney sought to notify her of the trial date he discovered that she had left Washington for Portland, Oregon, on February 1, 1972, because of a serious accident in her family. Her father had been killed and her mother remained in critical condition for a considerable period of time. The mother’s injuries included the loss of an eye, a broken jaw, a broken back and internal injuries. There was no other member of the family to assist in the care of her mother and Miss Kenna also had to wind up her father’s business and estate. Such obligations prevented Miss Kenna from returning to work for 8 months. She testified that through April it was impossible to come back (Tr. I, 7-18). She did spend 2 days in Washington in June, which time was completely devoted to getting her belongings, and she did not notify the U.S. Attorney of her presence here. Appellant’s counsel, Mr. Black, was also away on vacation from April 21, 1972, to May 15, 1972 (Tr. I, 40).

So with all these complications the parties attempted on June 14, 1972, to fit the case into Judge Bryant’s crowded calendar for trial on July 10, 1972 (Tr. I, 36). This date eventually proved to be unavailable when the judge was called out of the city to attend a meeting of a national judicial committee upon which he served. The committee met from July 8 to July 11, 1972 (Tr. I, 44).

Thereafter, the judge was scheduled for vacation in August, appellant filed a motion to reassign the case, and the judge returned from vacation to conduct the trial on August 31, 1972.

It is apparent from the foregoing that the trial delay, which was not greatly excessive, was initially caused by appellant’s confusion of his counsel situation and thereafter by a combination of the heavy calendar of the judge and the necessity of trying prior scheduled cases, the impossibility for a long period of securing the attendance of the complaining witness, the judge’s commitment to other official duties, and to a minor extent the absence on vacation of appellant’s counsel.

Such facts are insufficient to constitute a denial of one’s right to a speedy trial under the standards laid down by Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). They are clearly insufficient in the absence of any prejudice and we find no prejudice. Appellant did claim that he had “lost contact with his witnesses and potential witness” because of the delay; but at trial he was able to call all witnesses that he had initially named and it is obvious that there is no merit in this portion of his claim.

Appellant also contends that were his trial to have been speedy in fact, he would be serving the sentences in the instant case more nearly concurrent with the sentence imposed in his prior conviction. United States v. Barnes [477 F.2d 450, D.C.D.C.], D.C.Cir. No. 72-1731, decided April 6, 1973. (App.Br. p. 26)

The validity of this contention depends upon his sentence in this case being concurrent with his earlier sentence in 1967 to 8 years for burglary (Tr. March 3, 1973, p. 3). This claim is erroneous, however, because the sentences in this case (No. 72-2150), while concurrent with those adjudged on each of the four counts of the indictment, were consecutive to the prior sentence. The Judgment and Commitment filed November 10, 1972 in Criminal No. 1957-71 (U.S. District Court) provides:

It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of
Not less than Two (2) Years nor more than Seven (7) Years on Count 1;
One (1) Year on Count 2;
Not less than Twenty (20) Months nór more than Five (5) Years on Count 3;
Not less than Twenty (20) Months nor more than Five (5) Years on Count 4, said sentences by the counts to run concurrently.

The Judgment and Commitment is consistent with the oral sentence imposed from the bench. Under such circumstances the D.C.Code provides that the sentences imposed run consecutively and not concurrently to the 1967 sentence:

A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not. (July 29, 1970, Pub.L. 91-358, § 210(a), title II, 84 Stat. 610.)

D.C.Code § 23-112 (1973).

That the judge intended the sentences on each count in this case to be concurrent with each other and consecutive to the prior burglary sentence, and that appellant so understood the sentences, is apparent from the following colloquy between court and appellant’s counsel:

THE COURT: He was sentenced to concurrent sentences, but—
MR. CAHILL: But by the count in your case.
THE COURT: By the count, but not concurrent with the other.
MR. CAHILL: Not concurrent with the other. If it had been concurrent with the other, of course, David would have been eligible for release on February 9th rather than next fall. The problem was, of course, being concurrent by counts and not being concurrent by the two sentences. We had concurrency lost in connection with speedy trial appeal. That is the crux of my problem.

Tr. Ill, 100-101.

We conclude that appellant had a fair trial and that he was not prejudiced by a denial of any of his constitutional rights.

Affirmed.

BAZELON, Chief Judge

(concurring):

I concur in the holding that David Douglas was not denied his right to a speedy trial. However, I cannot agree with the Court’s reasoning, believing, as I do, that the Court departs from established precedent in this Circuit and in the process erodes the foundations of the Sixth Amendment guarantee of a speedy trial.

The Court holds that the one year delay in this case has been justified by the reasons advanced by the government. Such a contention can find no support in the reported cases of this Circuit or of the Supreme Court. We have only recently held that a government policy of prosecuting certain “important” cases before other less “important” cases cannot justify delay in the trial of the less “important” cases. United States v. Rucker, 150 U.S.App.D.C. 314, 318, 464 F.2d 823, 827 (1972). This is but the logical corollary of the well-settled principle that governmental negligence or over-crowded dockets cannot justify delay in trial. The Supreme Court has quite clearly and recently stated that the government, both courts and prosecutors, have the “primary burden” of assuring that all cases are promptly brought to trial. It follows that the District Court’s desire to complete a complicated labor union case and his attendance to other duties cannot justify the delay in Douglas’ trial.

The unavailability of the chief prosecution witness can justify some of the delay. However, it is unclear whether that unavailability extended beyond May. The weight of the evidence indicates that the government could have arranged to have Ms. Kenna return to Washington for the trial. In fact, Ms. Kenna did return to Washington for two days in June and stated in the remand hearing that she could have testified for the government if the assistant U.S. Attorney had arranged it with her. Furthermore, while I believe that unavailability of a witness is a valid justification for delay, there are limits to the amount of delay which such unavailability can justify. Here I find that three months of the delay were justified by Ms. Kenna’s family problems in Oregon; I am loathe to extend this to six months. We must presume that the government after waiting three months for the witness and having delayed the trial by then for nine months must make the most diligent efforts to produce that witness for trial.

The suggestion in the Court’s opinion that Douglas himself is to blame for part of the delay because of his “confusion” as to his “counsel situation” flies in the face of both the facts in this case and the law of this Circuit. Douglas’ lack of counsel was caused by certain deficiencies in the system by which counsel are appointed for indigent defendants. We condemned these deficiencies in United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971) and yet it would appear that little has been done to correct the situation. Douglas’ original court-appointed lawyer, who, by her own admission, had little experience in criminal litigation, apparently felt that Douglas had dismissed her and silently assumed for six months that other counsel had been appointed and was actively representing Douglas. Neither the District Court nor any other governmental personnel notified her that she remained Douglas’ attorney after she failed to represent him at his arraignment. Douglas, incarcerated and admittedly an alcoholic, could do little to remedy the situation. He alleges he wrote letters to the District Court and to another attorney protesting the situation. To blame Douglas for this “confusion” is to take an excessively crabbed view of the government’s responsibility to provide counsel to indigent defendants. To consider that delay in trial occasioned by this “confusion” is justified is to ignore the principle that the government and not the defendant has the “primary burden” of bringing a case to trial. To do either of these things is to perpetuate and encourage practices which render the system of appointing counsel for indigent defendants fatally defective.

The Court goes on to state that the delay of one year and three days in this case is “not greatly excessive.” This statement is directly contradicted by our decision in Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684 (1966) which held that delays of more than a year are to be considered prima facie evidence of a violation of the right to a speedy trial. If we begin to inch away from the Hedgepeth presumption, we will erode the very concept of a working line in speedy trial litigation. I will not concur in such an erosion.

Not content to rest at that, the Court goes on to say that Douglas has suffered no prejudice because of this delay. While I believe that Douglas has shown insufficient prejudice to justify the severe remedy of dismissal of the indictment, I am far less convinced that Douglas suffered no prejudice whatever or that there was not at least the potential for prejudice which under other circumstances might well be sufficient prejudice to justify a dismissal of the indictment. There can be no doubt that if Douglas was incarcerated pending this trial on the basis of another conviction, he can suffer no prejudice to his person by reason of delay in this trial because of that incarceration. However, here Douglas was incarcerated pending

trial not directly on the basis of another conviction but rather because his parole on an earlier conviction had been revoked because of the burglary charge for which he was tried below. Douglas was given a parole hearing on that revocation in March of 1972. However, the accused at a parole revocation hearing does not have the full panoply of rights guaranteed at a criminal trial. Thus, the possibility existed that Douglas’ parole would be revoked and yet he would be found not guilty on the burglary charge at his full criminal trial. If he was in fact found not guilty at trial, that fact could not fail to impress the parole board and affect his incarceration on the earlier conviction. Indeed, in this case the parole board requested Douglas’ attorney to apprise them of the outcome of the trial. It follows that Douglas was to some extent incarcerated pending trial on the basis of the burglary charge for which he was convicted below. That is prejudice to his person, cognizable under the Sixth Amendment. However, in Douglas’ case the ovei-whelming evidence of guilt trivializes this prejudice since Douglas lost little when deprived of the opportunity to clear himself and regain parole.

The Court finds “no merit” in Douglas’ claim that his defense was prejudiced by the delay even though he did not have counsel for six months of that period due to the negligence of the authorities responsible for appointing counsel for indigent defendants. This prejudice to Douglas’ defense is not directly related to the delay itself but since it to some extent caused the delay, it can be said to be part of the delay, and hence a prejudice to Douglas’ defense cognizable under the Sixth Amendment. This prejudice, was minimal in this case since Douglas has not offered even the slightest indication that his defense was retarded in either investigation or preparation by the six month interval. I am, therefore, constrained to uphold the conviction.

      . United States v. Douglas, 160 U.S.App.D.C. 7, 488 F.2d 1331 (1973).

      . U.S.Const. amend. VI.

      . THE COURT: On Count. 1, the Court sentences you to not less than two or more than seven years. On Count 2, the Court sentences you to one year. On Count 3, the Court sentences you to serve not less than twenty months or more than five years. On Count 4, the Court sentences you to serve not less than twenty months or five years. These sentences are to run concurrently. The Court recommends a federal institution for your incarceration.
      Tr. Nov. 10,1972, pp. 4-5.

      . See, e.g., Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) United States v. Calloway, 164 U.S.App.D.C. -, 505 F.2d 311 (1974) ; United States v. West, 164 U.S.App.D.C. -, 504 F.2d 253 (1974).

      . Barker v. Wingo, 407 U.S. 514, 529, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972).

      . Id. at 531, 92 S.Ct. 2182; United States v. Holt, 145 U.S.App.D.C. 185, 189-190, 448 F.2d 1108, 1112-1113, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971) (Deventhal, J.).

      . See also United States v. West, 164 U.S. App.D.C.-, 504 F.2d 253 (1974). This delay in obtaining appointed counsel was not the result of “the deliberate pace of the system of safeguards designed to protect the accused,” Blunt v. United States, 131 U.S.App.D.C. 306, 310, 404 F.2d 1283, 1287 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 22 L.Ed.2d 221 (1969), but was the result of Douglas being “lost in the shuffle,” United States v. Dunn, 148 U.S.App.D.C. 91, 97, 459 F.2d 1115, 1121 (1972). See also Hinton v. United States, 137 U.S.App.D.C. 388, 393, 424 F.2d 876, 881 (1969).

      . Tr. on Remand at 55.

      . These deficiencies have been noted in United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971) and United States v. West, 164 U.S.App.D.C. -, 504 F.2d 253 (1974).
      They represent only recent examples of the failure of the system of appointing counsel for indigent defendants which have come to my attention. We are not presently advised how extensive these practices are.

      . Unjustified delay of a year even coupled with timely assertion of a right to a speedy trial will hardly ever require the draconian remedy of dismissal of the indictment in the absence of substantial prejudice to the accused. See United States v. Medley, 146 U. S.App.D.C. 396, 452 F.2d 1325 (1971) ; Harling v. United States, 130 U.S.App.D.C. 327, 401 U.S. 392 (1968).

      . Of. United States v. DeCoster, 159 U.S. App.D.C. 326, 487 F.2d 1197 (1973), establishing standards for determining whether a defendant has been denied his or her right to effective assistance of counsel. That right and the right to a speedy trial are both located in the Sixth Amendment and both serve to insure that the prejudice to individuals caused by public accusation of a crime is mitigated by a speedy and fair trial. Delay in trial caused by failure of effective

      . See Morrissey v. Brewer, 408 U.S. 471, 487-490, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

      . Cf. Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607 (1968) ; United States v. Rucker, 150 U.S.App.D.C. 314, 316, 464 F.2d 823, 825 (1972). These cases also establish that fa defendant incarcerated pending trial on another charge or conviction may still be prejudiced by delay of that trial due to the anxiety and concern accompanying public accusation. assistance of counsel thus causes in turn prejudice to the accused cognizable under the Sixth Amendment. For a discussion of Sixth Amendment prejudice, see generally, Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ; United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ; Dickey v. Florida, 398 U.S. 30, 41-43, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring).


author: PER CURIAM:

text:
    UNITED STATES of America v. John BUTLER, Appellant.
    No. 73-1891.
    United States Court of Appeals, District of Columbia Circuit.
    Aug. 30, 1974.
    Conviction vacated, case remanded for a new trial.

      Roger W. Langsdorf, Washington, D. C. (appointed by this court), for appellant.
    Harold H. Titus, U. S. Atty. at the time the record was filed, John A. Terry and Julius A. Johnson, Asst. U. S. Attys., for appellee.
    Before BAZELON, Chief Judge, and WILKEY, Circuit Judge.
   PER CURIAM:

After a bizarre set of procedural circumstances, both in the Court of Appeals and the District Court, this case is now before us subsequent to our order to show cause why the conviction of the appellant Butler should not be vacated for ineffective assistance of trial counsel. A review of the actions at both the trial and appellate levels leaves us no choice but to vacate the conviction and remand for a new trial.

Since our decision does not turn directly upon the facts of the substantive offense, except in relation to the actions of trial counsel, the usual details of the tawdry narcotics traffic will be abbreviated.

Appellant John Butler was found guilty of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) (1970). On 10 October 1972 he was sentenced to a term of three to nine years’ imprisonment. A timely notice of appeal from the conviction was filed in this court, briefs were received, and oral argument was heard. Before reaching a decision on the merits, we were informed by appellant’s counsel on appeal that appellant’s trial counsel was not a member of the bar of the District of Columbia. Accordingly, on 23 May 1973, we remanded the appeals of appellant and his codefendant for the District Court to give “appropriate consideration to the situation resulting from this improper representation of the appellant Butler.”

A hearing was held on remand “to determine whether or not Mr. Butler was properly represented in spite of [his trial counsel’s] not being formally admitted to the Bar of this Court.” Testimony indicated that trial counsel had lied to his professional colleagues concerning his membership to the bar; other specific observations related directly to counsel’s actions in this case. By order entered 31 July 1973, denying the motion for a new trial, the District Court found “of no consequence” the fact that trial counsel was not a member of the bar of the District of Columbia, and that the representation had been “adequate.” Butler then appealed the 31 July order.

Inasmuch as our consideration of the merits of Butler’s direct appeal was aborted when we learned of the ineffective assistance of counsel issue, we now have before us the direct appeal issues as well as the issues raised on appeal from the remand proceeding. The latter were embraced in our order to show cause.

I. FACTS

Appellant Butler was convicted after a trial at which only one witness for the Government implicated him in the crime. Edward Whiteside, appellant’s nephew, testified that Butler, his uncle, had sent him from Greenville, South Carolina, to the District of Columbia to purchase narcotics from codefendant Lucas. Whiteside testified that he had heard Butler making the arrangements by telephone from his (Butler’s) mother’s house in Greenville in the first week of June. He also testified that when he purchased the narcotics Lucas had said to him, “tell John to put a five on it,” that is, tell the appellant to “cut” the heroin or dilute it with other substances. Whiteside testified he had been given eight hundred dollars by the appellant to purchase the narcotics, and that a friend of Lucas’ had made airplane reservations for Whiteside to return to South Carolina with the drugs.

This testimony of the one witness was the sole testimony implicating appellant Butler, either by name or description. Other testimony squarely implicated co-defendant Lucas and Whiteside, the courier who was arrested with the narcotics in his actual possession.

Appellant called three witnesses and took the stand himself to rebut White-side’s testimony. Appellant’s mother, his wife, and a friend testified that they had not seen Whiteside in Greenville during the time he claimed to have heard Butler make telephone arrangements for the purchase of narcotics. All three witnesses also testified that when they had gone to the jail to visit Butler, Whiteside, who was in a nearby cell, said that he intended to implicate Butler, implying that it was because Butler had not helped him raise money for a release bond. Butler himself denied having seen or spoken with Whiteside in Greenville or having any knowledge of the purchase of narcotics from Lucas.

II. APPELLANT’S CONTENTIONS ON APPEAL

Appellant contends that the trial court erred in excluding from evidence the transcript of a prior sworn inconsistent statement by the sole Government witness against Butler, Edward Whiteside. The trial court also denied defense requests for the identity of a police informer and for allegedly misleading jury instructions on aiding and abetting. As a separate ground for reversal, appellant challenges the admission into evidence of hearsay statements by the unidentified informant and appellant’s codefendant, who did not testify at the trial, which were used to corroborate the testimony of the Government’s principal and only direct witness against appellant.

Appellant particularly complains of the admission into evidence of a police search of appellant’s apartment for narcotics pursuant to a warrant, approximately two months before the alleged crime, as highly prejudicial and constituting reversible error. This was the only evidence, aside from Whiteside’s assertions, which linked appellant to narcotics in any way. Coming from police authorities, such testimony was no doubt damaging.

Finally, it is argued that the record at trial and at the subsequent remand hearing reveals that Butler was denied effective assistance of counsel. Because we find this last argument dispositive of the appeal before us, we do not reach the other issues, many of which are nevertheless substantial.

This court has recently reconsidered the standards to be applied to claims of ineffective assistance of counsel which are made on direct appeal. We held in United States v. De Coster that the right to effective assistance is violated when a defendant is denied “the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” In this case, appellant argues that trial counsel’s nonmembership in the bar, his misrepresentations, and his conduct at trial constitute a sufficient base for finding that there was a denial of the right of effective counsel. We agree.

Standing alone, the mere fact of a trial attorney’s nonmembership in the local bar is not necessarily sufficient to find that the right to effective counsel was breached. While a defendant’s right is violated when he is represented by a layman posing as a lawyer, it has been held that the right is not violated when the sole prejudicial factor appears to be that counsel was not a member of the federal bar but was a member of the local bar and known by the judge to be well qualified.

In the ease before us, however, we have the presence of several prejudicial considerations in addition to the mere formality of bar membership. First, counsel misrepresented his membership in the bar to the court, to his law firm partners, and to his clients. Secondly, although he conferred to some extent with co-counsel, the conduct of appellant’s defense was principally in his hands, and he apparently had had no previous trial experience.

Finally, and critically, the record of the trial itself reveals significant errors on the part of counsel. For instance, counsel failed to object to the introduction through police officers of hearsay statements made by the informant which tended to implicate Butler in the narcotics purchase. Nor did counsel object to references to those statements made during the course of the government’s closing argument. Counsel failed to object to the introduction of Lucas’ hearsay statement to which Whiteside, not Lucas, testified. Moreover, since Whiteside was the sole Government witness who testified directly about appellant’s alleged participation in the crime, undermining his credibility was essential for the defense. Yet, although counsel had in his possession a transcript of Whiteside’s testimony at the pretrial suppression hearing which conflicted in critical ways with that given at trial, counsel failed to use the transcript as a basis for a thorough cross-examination of Whiteside.

Because they may arguably be the product of tactical decisions as opposed to being the result of inadequate preparation, such errors might normally not be germane to an ineffectiveness claim. However, they are highly relevant where, as here, other factors — such as counsel’s nonmembership in the bar — independently raise the question of ineffectiveness.

On reviewing the facts of this case, we believe that appellant has demonstrated a substantial violation of the duties owed him by his counsel. Partly because the very ineffectiveness of the assistance may lead to prejudice not being reflected in the record, the burden at this point shifts to the Government to establish a lack of prejudice.

III. THE GOVERNMENT'S FAIL-ÜRE TO ANSWER

Not only has the Government clearly failed to meet its burden in this case, it has not even attempted to carry it. The record demonstrates a repeated pattern of untimely motions to extend time for filing the Government’s brief. On 30 April 1974 the third motion for extension of time in which to file the Government’s brief was made. Two of these motions for additional time were themselves filed late. The grounds alleged were work on other eases and a long scheduled vacation by the Assistant U.S. Attorney responsible. The patience of the court being exhausted, the Government’s third motion for extension . of time was denied. As a result, this court has never received a brief from the Government answering the serious issues raised on appeal.

These delays were singularly callous and inexcusable because the appellant had been incarcerated since 22 June 1972. We were not dealing in abstractions when we wrote in United States v. Stanley:

Faced with the spectre of delay caused by the Government, it becomes increasingly hard for appellate judges in good conscience to deny release pending appeal when the United States Attorney’s office is requesting one, two, and three extensions in filing its brief on the merits.

On the same day we denied the Government’s third request for an extension, we ordered appellant released on his own recognizance with conditions. The Government was further directed to show cause why the conviction of appellant should not be vacated for ineffective assistance of counsel. The response to that order, filed only after yet another extension of time was granted, is the only Government discussion of the issue on remand of ineffective assistance of counsel. It is inadequate.

We find that the appellant was denied his constitutional right to effective counsel in his behalf, vacate the judgment of conviction, and remand for a new trial.

So ordered.

      . Aside from appellant Butler’s testimony in his own defense, the bulk of the evidence at trial dealt with the actions of his supposed confederates.

      . “(a) Except as authorized by this subchap-ter, it shall be unlawful for any person knowingly or intentionally—
      “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
      “(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.”

      . By order entered 4 December 1972 the judgment and commitment was amended by an additional “special parole term of three (3) years pursuant to the provisions of 21 U.S.O. 841(b)(1)(A),” thus increasing the total sentence to a maximum of twelve years.

      . Appellant’s direct appeal from his conviction was filed in this court under Docket No. 72-2039, 156 U.S.App.D.C. 200, 479 F. 2d 921.

      . R.H. 3. Citations to the record hereafter will be indicated as follows: “Tr.” refers to the transcript of trial proceedings on 20, 21, and 22 June 1972; “R.H.” refers to the hearing on remand held 27 June 1973.

      . On appellant’s motion, the trial judge, prior to the hearing on remand, ordered that trial counsel be examined by a psychiatrist of the Office of Forensic Psychiatry. Pursuant to this order, a psychiatrist, without the benefit of any background information about counsel, examined him for a total of one hour and twenty minutes. R.H. 14. We fully agree with the trial judge’s refusal to rely on the psychiatrist’s evaluation' in considering the issue of ineffectiveness of counsel. The grounds upon which we rely in finding that appellant was denied effective assistance are set forth in Part II of this opinion, infra.

      . The appeal from the remand hearing was filed in this court under Docket. No. 73-1891.

      . Tr. 156.

      . 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973).

      . 159 U.S.App.D.C. at 331, 487 F.2d at 1202 (footnote omitted, emphasis in original).

      . Since Butler’s trial occurred before our decision in De Coxter, we must determine whether that decision has retrospective application.
      Whether newly announced standards are to be given retroactive application is determined by a weighing of three factors: “ ‘a) the purpose to be served by the new standards, b) the extent of the reliance by law enforcement authorities on the old standards, and c) the effect on the administration of justice of a retroactive application of the new standards.’ ” Williams v. United States, 401 U.S. 646, 652-653, n. 5, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971), quoting Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Applying this tripartite test to De Coxter, we find retroactive application to be fully warranted. To the extent that a newly announced standard has the purpose of reinforcing the fairness of trial proceedings, retroactive application is usually favored. See Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The newly announced De Coxter standards have just such a purpose. Indeed, we indicated in De Goster that “(t]he effective assistance of counsel is a defendant’s most fundamental right ‘for it. affects his ability to assert any other right lie may have.’ ” 159 U.S.App.D.C. at 330, 487 F.2d at 1201, quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv.D.Rev. 1, 8 (1956). Retroactive application of De Coxter would serve the purpose of helping to insure that defendants have not been “left to the mercies of incompetent counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
      Looking at the second factor to be weighed it is doubtful that there was a great deal of active reliance in the jieriod prior to De Coxier on the old “farce and mockery” standard of ineffectiveness. Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945) ; Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967). The validity of that standard had already been under serious question for several years. See United States v. De Coster, 159 U.S.App.D.C. at 330-331, 487 F.2d at 1201-1202.
      Finally, retroactive application of the De Coxter standards works virtually no burden on the administration of justice. De Coster is a ruling which addresses only the problem of “the correct standard to be applied when the question of ineffectiveness is raised on direct appeal.” United States v. De Coster, 159 U.S.App.D.C. at 331, 487 F.2d at 1202 (emphasis supplied). Making it retroactive therefore does not run the risk of creating a deluge of collateral attack applications by defendants whose ineffectiveness claims have already been denied under the old standard.

      . Harrison v. United States, 123 U.S.App.D.C. 230, 359 F.2d 214 (1965).

      . Farr v. United States, 314 F.Supp. 1125, 1132 (W.D.Mo.1970), aff’d, 436 F.2d 975 (8th Cir. 1971), cert. denied, 402 U.S. 947, 91 S.Ct. 1639, 29 L.Ed.2d 116 (1971). In reversing a contempt conviction of an attorney who was not a member of the local bar and who, through court clerical error, represented a defendant without seeking leave of court, we said:
      Appellant, as we have said, had qualified for practice in other courts of high standing. Participation in litigation — even criminal litigation — by non-members of the local bar simply by obtaining leave of court is a common event in this and other courts. We have never felt that as a class these appearances are per se ineffective or obstructive; indeed, as we have pointed out, we permitted appellant to argue the application to this court for release [of his indigent client].
      In re Brown, 147 U.S.App.D.C. 156, 161-162, 454 F.2d 999, 1004-1005 (1971) (footnotes omitted).

      . The psychiatrist who examined counsel testified that he indicated that he “doesn’t like courtroom work” and that this “was the first case that he had actuall [sic] tried in a trial proceeding.” R.H. 13.

      . See United States v. De Coster, 159 U.S.App.D.C. at 330, 487 F.2d at 1201. See also United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597, 601 (1970).

      . See United States v. De Coster, 159 U.S.App.D.C. at 333, 487 F.2d at 1204.

      . Not only did the court not receive a brief on the merits from the Government, but review of the trial record by this court was delayed by the Government as well. On 10 September 1973 the original record on appeal was certified to this court by the District Court Clerk with tlie statement: “Exceptions : . . . Two (2) Transcripts filed 11-28-72, and One Transcript filed 12-61-72 [sic] which can not be located.” The missing portions were the official verbatim transcript of appellant’s trial and conviction.
      After a further search bad failed to uncover the missing transcripts, photocopies were borrowed from the U. S. Attorney’s office for consideration by the court in determining appellant’s motion for release on bail. These photocopies were returned thereafter. When the court came to consider the disposition of the order to show cause why the conviction should not be vacated for ineffective assistance of counsel, this court again instituted a search for the missing original transcripts. The results being fruitless, in the effort to borrow for a second time the U. S. Attorney’s office photocopies, a Deputy Clerk of the Court of Appeals observed the missing original transcripts in the office files of the Assistant U. S. Attorney responsible for this case. Those missing originals were certified to this court 24 June 1974 and are now in the record before us.

      . 150 U.S.App.D.C. 301, 302, 464 F.2d 810, 811 (1972).