author: BAZELON, Chief Judge:

text:
    AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent.
    No. 71-1751.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 14, 1972.
    Decided Jan. 4, 1973.

      Mr. Gary Green, Washington, D. C., with whom Mr. J. Raymond Needham, Washington, D. C., was on the brief, for petitioner. Mr. Arthur A. Horowitz, Washington, D. C., also entered an appearance for petitioner.
    Mr. Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, C. A. B., with whom Messrs. R. Tenney Johnson, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Robert L. Toomey, Alan R. Demby, Attys., C. A. B., and Howard E. Shapiro, Atty., Dept, of Justice, were on the brief, for respondent.
    Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and FRANK A. KAUFMAN, United States District Judge for the District of Maryland.

       Sitting by designation pursuant to 28 U.S.C. § 292(c) (1970).

   BAZELON, Chief Judge:

Petitioner Air Line Pilots Association challenges CAB approval of an agreement, pursuant to Section 412 of the Federal Aviation Act of 1958, 49 U.S.C. § 1382, providing for multilateral reduction of scheduled seating capacity in four major domestic markets. Petitioner contends that the Board was required to hold a hearing because of the anti-competitive aspects of the agreement; that the Board was required to hold a hearing because of the impact on carrier employees in order to determine whether labor protective provisions should be applied to the agreement; and that, in the absence of such hearings, the Board’s findings are insufficient and unsupported by the record.

We hold that the Board was not required to hold a hearing with respect to the anti-competitive aspects of the agreement. However, we are unable to determine the basis on which the Board denied a hearing on the impact of the agreement on carrier employees; since we will not construct a proper justification here, we remand to the Board for a new determination.

The Agreement

In 1970 American Airlines, Inc. (American), Trans World Airlines, Inc. (TWA), and United Airlines, Inc. (United) were experiencing heavy financial losses due in substantial part to excess seating capacity in many major domestic routes. The excess capacity was caused by a decline in the traffic levels and the introduction of large, higher capacity aircraft. Efforts at unilateral reduction-appear to have failed to alleviate the excess both because of the magnitude of the problem and the traditional fear of each carrier that unilateral reduction would lead to a loss of the carrier’s market share.

Section 412 of the Federal Aviation Act of 1958 gives to the CAB authority to approve agreements among carriers “for controlling, regulating, preventing, or otherwise eliminating destructive, oppressive or wasteful competition, or for regulating stops, schedules, and charter of service. . . .” Board approval confers anti-trust immunity by virtue of Section 414 of the Act.

In August of 1970, American, TWA and United entered into such an agreement providing for multi-lateral reduction of scheduled seating capacity in 15 markets for a two year period in the hope of stemming financial losses. While the Board disapproved this particular agreement, it suggested that it “would be prepared to consider applications for authority to engage in discussions, under the appropriate safeguards, looking toward multilateral agreements to reduce capacity in markets in which excess capacity is presently being operated.” The Board agreed that the severe economic plight of the carriers was due in large part to overcapacity being operated in many large markets.

The respondents applied for, and the Board approved, discussions which led to an agreement on June 21, 1971, providing for mutual reduction in four city-pair markets for one year. Application for Board approval was made on June 23, 1971, and interested parties were given 15 days to file comments. In its comment petitioner raised substantially the same issues raised here on appeal. The CAB denied petitioner’s request for a hearing and approved the agreement August 19, 1971, Order 71-8-91. It is the approval of this agreement which is before us today.

We turn first to petitioners contention that a hearing was required because of the anti-competitive aspects of the agreement. Petitioner argues that the agreement is so “at odds with established concepts of anti-trust law” and raises questions of such substantial importance as to require a hearing. Without a hearing, say petitioners, the Board lacked sufficient grounds for approval of the agreement.

Of course, most Section 412 agreements will have anti-trust implications. Furthermore, “the [mere] fact that these questions are difficult and important . . . does not mean an evidentiary hearing is an essential prerequisite to their satisfactory resolution.” National Air Carriers Ass'n v. C.A.B., 141 U.S.App.D.C. 31, 40, 436 F.2d 185, 194 (hereinafter NACA I). As we have said before, there is no statutory requirement for a hearing as a precondition to Board approval under Section 412. It is true that in certain cases the anti-trust issues may not lend themselves to a satisfactory disposition without a hearing. But we have made it quite clear that the Board should have a degree of latitude in determining whether a full evidentiary hearing will be necessary in a particular case. NACA I at 194, National Air Carriers Ass’n v. C.A.B., 143 U.S.App.D.C. 140, 141, 442 F.2d 862, 864 (hereinafter NACA II). In reviewing this determination, this court will not substitute its own view for that of the Board. Rather, the question for us is whether there exist substantial and material disputed issues of fact or whether by refusing to conduct a hearing the Board “denied [itself] the materials requisite for a rational decision.” NACA II, 143 U.S.App.D.C. at 146, 442 F.2d at 868.

Here, petitioner was afforded an opportunity to present whatever facts it believed might be relevant. Petitioner did not offer any facts, nor did it suggest what facts it might offer at a hearing. Furthermore, the record does contain information as to prior unilateral capacity reductions and their effects, projections as to traffic growth, and impact upon competing carriers in other markets. While there was some disagreement as to the course of conduct which would be pursued by the three carriers, there was not the kind of disagreement as to material and substantial factual questions which would require a full evidentiary hearing.

Moreover, this was a limited agreement, confined to only four, city-pair markets and lasting a single year. We have heretofore upheld Board determination to proceed without an evidentiary hearing where the agreement was novel and of an “interim” or short term nature. In cases of this kind it may well be that “a month of experience will be worth a year of hearings.” American Airlines v. C.A.B., 123 U.S.App.D.C. 310, 319, 359 F.2d 624, 633 (1966), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75. Here, the Board emphasized in approving the agreement that it would maintain jurisdiction in order to condition the agreement, shorten its term, or terminate it if circumstance should dictate.

In light of the seriousness of the problem facing the industry, the delay necessitated by a hearing, the limited nature of the agreement, and the adequate information at hand, we cannot say that a hearing was required by law.

The Impact on Labor

Petitioner also claims that the Board should have held a hearing on the impact of the agreement on carrier employees in order to determine whether to apply labor protective conditions. Petitioner contends that since the Board made no findings as to the impact on employees, the Board’s approval of the agreement is without adequate support. The CAB appears to respond that since labor protective conditions are for policy reasons inapplicable to reduction agreements, no inquiry is necessary as to the impact of the agreement on labor in this case. The Board also argues that a hearing would have delayed implementation of the agreement and that any conditions imposed would amount to a financial burden on the carriers. This, says the Board, would run counter to the purpose of the agreement: reduction of carrier losses.

But the CAB response misses the mark on both counts. In approving agreements under Section 412 the Board must find that the agreement is not adverse to the public interest. It has long been held that the welfare of displaced employees is a legitimate factor within the public interest. As the Board itself stated in United Western, Acquisition of Air Carrier Property:

On balance, [the agreement] must benefit the public as a whole; otherwise we would disapprove it. Very often, the benefits to the stockholders and to the public will be at the expense of some of the employees of the companies involved. We think it only equitable that in such circumstances the hardships borne by adversely affected employees should- be mitigated by provisions for their benefit.

Thus it may be that an agreement will be disapproved because its impact on carrier employees outweighs the positive aspects of the agreement; or that an agreement will be approved only because its impact on carrier employees is mitigated by labor protective provisions; or it may be that the impact on carrier employees is so small as to require neither disapproval of the agreement nor imposition of labor protective conditions. In any case, while the decision to impose conditions is a policy question left largely to the discretion of the Board, we cannot believe that the Board would as a matter of policy simply ignore entirely the impact of the agreement upon carrier employees. Such a decision could amount to a refusal even to consider what may develop to be a legitimate factor in balancing all elements essential to a just determination of the public interest.

But it is not clear from the Board's order whether the Board concluded that it may as a general policy refuse to consider the impact of reduction agreements on carrier employees, or whether the Board merely determined that the adverse impact on employees was overborne by the positive aspects of the agreement in this particular case.

On the one hand, the Board seems to have concluded that consideration of employee welfare was unnecessary since “the instant agreement does not create changes in any carrier’s operational authority.” But whether operational authority changes or not, the impact on employees may be the same, and such a distinction does not erase the Board’s duty to consider the welfare of carrier employees under the public interest standard when it approves agreements under Section 412. On the other hand, it appears possible that the Board assumed adverse impact on employees, but determined the impact overborne by competing interests.

We hesitate to uphold the Board where this aspect of its decision appears to be so unclear. S.E.C. v. Chanery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). “The function of the court is to assure that the agency has given reasoned consideration to all the material facts and issues. This calls for insistence that the agency articulate with reasonable clarity its reasons for decision. . . . ” Therefore, we remand to the Board so that it may clarify its reasons for approving the agreement over the claims of adverse impact on carrier employees.

We do not mean to say that without more the Board must necessarily hold a hearing to resolve this issue. We leave this to the discretion of the Board subject to the guidelines discussed above. But the Board must, at a minimum, address the question of adverse impact on carrier employees and set forth clearly its reasons for concluding that the public interest lay in approval of the agreement.

While the agreement in question has now run its course, we note that the CAB recently approved a six month extension. Petitioner did not file comment with respect to this extension; but this may not be surprising in view of the Board’s earlier decision which might have been taken to mean that the Board would never consider the impact of such agreements on carrier employees as a matter of policy. On this remand we think the Board should now invite comments from petitioner as to the impact the agreement has had, and will be expected to have, on carrier employees. Furthermore, the public interest issue should be reappraised if such comments are received.

Because the agreement has not evoked specific complaints from labor during its operation, and because of the disruption which would result from outright termination of the agreement, we leave it to the Board’s discretion to permit the agreement to continue pending re-consideration by the Board. In view of the short term nature of the extension, we assume that the Board will proceed most quickly to a resolution.

      . Air Line Pilots Association is the certified bargaining representative of flight crew members of a number of air carriers, representing over 15,000 pilots, stewards and stewardesses employed by United and TWA.

      . In 1970, TWA, United, and American incurred losses of $65 million, $40 million, and $26 million respectively. Between 1970 and 1971 the carriers reduced the number of flights in the four markets by 13%; however, there was still a 13% increase in non-stop capacity. The overall load factor dropped by 19% to 32%, well below levels considered sound by the CAB. Application of TWA et al, Order 71-8-91, August 19, 1971.

      . Section 412 [72 Stat. 770, 49 U.S.C. § 1382]; Section 414, [72 Stat. 770, 49 U.S.C. § 1384].

      . See Agreement between American, TWA and United, Order No. 70-11-35, November 6, 1970. Among other things, the Board found that the two year period was too long and the agreement was too flexible. Under the proposed agreement, the airlines were not required to reduce capacity in any specific market as long as the total capacity was reduced in the aggregate of the markets. “Given the extremely competitive history of the carriers in such major markets as New York-Los Angeles, for example, it is highly possible that the carriers would choose to maintain their competitive pressures in these markets and comply with their agreement by reducing service in their two-carrier markets (e. g., Memphis-Los Angeles) or in satellite-type markets (e. g., Newark-San Jose). In such later instances, satellites like Ontario or San Jose could lose the relatively little transcontinental service they now have.” Id.

      . Id.

      . By reducing the number of flights, an airline reduces the number of seats available. Unless demand is affected to the same extent, a reduction in available seats will normally result in a higher “load factor.” “Load factor” refers to the percentage of available seats actually used.
      The proposed reductions are as follows:
      To May 31, 1972 NY-LA NY-SF CHI-SF WASH-LA NY-LA NY-SF CHI-SF WASH-LA Present Level Weekly Nonstop Bound Trips 4 185 143 147 73 Proposed Level 132 89 105 66 June 1 to September 16,1972 Present Level Weekly Nonstop Round Trips 4 185 143 147 73 Proposed Level 157 121 126 69 Percent of Reduction 28.9 38.0 28.6 10.2 Percent of Reduction 15.4 15.7 14.3 6.1
      It was the objective of the agreement to raise the load factors in the three markets from a level of 26-36% to 50-60%.

      . National Carrier Ass’n v. C. A. B., 141 U.S.App. 31, 436 F.2d 185 (1970) (hereinafter NAGA I); National Air Carrier Ass’n v. C. A. B., 143 U.S.App.D.C. 140, 442 F.2d 862 (1971) (hereinafter NAGA II). As we said in NACA II, 143 U.S.App.D.C. at 141, 442 F.2d at 864.

      . See NACA I, 141 U.S.App.D.S. 31, 436 F.2d 185 (1970); Marine Space Enclosures, Inc. v. FMC, 137 U.S.App.D.C. 9, 17-18, 420 F.2d 577, 585-586 (1969); Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 232-233, 414 F.2d 1125, 1128-1129 (1969).

      . Some concern was expressed that capacity released from the four markets under the agreement might be diverted to other markets or charter service in competition with other air carriers. The applicant carriers represented that this would not occur and the Board approved the agreement upon this condition and with the authority “to impose conditions [to prevent diversion of capacity] at a later date” if it should prove necessary.

      . See, e. g., National Air Carriers Ass’n v. C. A. B., 141 U.S.App.D.C. 31, 436 F.2d 185.

      . United States v. Lowden, 308 U.S. 225, 235-236, 60 S.Ct. 248, 84 L.Ed. 208; Seven States Area Investigation, 30 CAB 473, 475-577 (1960); North Atlantic Route Transfer Case, 14 CAB 910, 916-917 (1951).

      . 11 CAB 701, 708 (1950). Aff’d sub nom. Western Air Lines v. C. A. B., 194 F.2d 211, 213-215 (C.A. 9, 1952).

      . Cf. Air Line Pilots Association, International v. C. A. B., 148 U.S.App.D.C. 24, 458 F.2d 846, 852 (1972).

      . Operational authority refers to the authority given to carriers by the Board to operate between given points. The CAB states that it has been in cases where there is a change in operational authority that labor protective conditions have been applied. The Board argues that where it grants a change in operational authority the Board assumes a different obligation to employees than in cases where “fluctuations, rises and falls, and changes in volume or character of employment [are] brought about solely by other causes.” Here, says respondent, “the Board has merely facilitated realization of a state of affairs which should have come to pass long before” as a “product of the basic economic law of supply and demand.” But even mergers are only products of supply and demand. In each case the Board is granting an exception to a general rule which prohibits reacting to supply and demand in ways which may in the long run threaten competition. In any case, the Board’s duty under the public interest standard derives from the requirement of Board approval of such agreements and not from the nature of the agreement.

      . Greater Boston Television Corp. v. F. C. C., 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851.

      . For instance, what impact upon petitioner can be expected from the statistics set forth in footnote 19, page 7, of the order under review?


source: Caselaw Access Project

author: WILKEY, Circuit Judge:

license: Public Domain

text:
    LOCAL UNION 13410, UNITED MINE WORKERS OF AMERICA, Appellant, v. UNITED MINE WORKERS OF AMERICA et al.
    No. 71-1272.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 25, 1972.
    Decided Jan. 5, 1973.

      Mr. Jack H. Olender, Washington, D. C., with whom Mr. James P. Donovan, Washington, D. C., was on the brief for appellant.
    Mr. Harold H. Bacon, Washington, D. C. , for appellee, United Mine Workers of America, Welfare and Retirement Fund.
    Mr. Charles L. Widman, Washington, D. C., for appellees, United Mine Workers of America and Edward L. Carey.
    Mr. Jo V. Morgan, Jr., Washington, D. C., with whom Mr. John J. Wilson, Washington, D. C., was on the brief, for appellee, The National Bank of Washington.
    Mr. Allen Jones, Jr., Washington, D. C., for appellee, Hamilton Leasing Corporation.
    Before FAHY, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

Appellant is a local labor organization composed of clerks, medical assistants and hospital clerks. The members of the Local are employed in various clerical and administrative capacities by the United Mine Workers of America Welfare and Retirement Fund. In turn the Fund is partially controlled by and receives a substantial portion of its assets from members of the United Mine Workers of America, an international labor union and appellee herein. The net result was that members of the Local were indirectly but essentially employed by the organization [International] which was supposed to represent them against their employer [Fund], an interrelationship which continued for twenty years.

I. Actions of the Trial Examiner and District Court

Twenty years was sufficient to bring this situation to the attention of the ever-watchful National Labor Relations Board. After hearing a Trial Examiner found that the employer (Fund) was engaged in unfair labor practices with respect to the Local. A major basis for this finding was the participation of supervisory personnel of the Fund in the affairs of the Local. The Trial Examiner also found that the Local was disqualified to represent the Fund’s employees by reason of the Local’s affiliation with the International. Since the Fund’s payroll goes to the employees which the International represents, and the International helps to name the Fund’s trustees, the Trial Examiner found an unacceptable conflict of interest to exist.

After posting the required notice, the Local met to consider the effect of the Examiner’s decision. The remedial action decided upon was to take a secret ballot on a resolution providing for both disaffiliation from the. International and-separation of the Local’s Death Benefit Fund. Based on the Examiner’s opinion, fifty-eight alleged supervisory personnel were notified of their purported ineligibility for membership and were thus not allowed to vote on the resolution.

Alleging that the disqualification of the supervisors and various other .acts constituted a breakdown in democratic procedures, the International placed the Local under a trusteeship. This trusteeship froze the Local’s bank account, impounded the ballots on the disaffiliation resolution, and took over management of the Local’s affairs. The Local responded by bringing suit against the International seeking a temporary restraining order, followed by a preliminary and permanent injunction, and damages. The District Court granted the temporary restraining order and permitted the ballots to be counted, revealing that the resolution to disaffiliate had passed by the decisive margin of 203 to 33. After trial on the merits, the District Court found for the International, holding the disaffiliation vote to be invalid and denying preliminary and permanent injunctions and the request for damages. The Local now seeks reversal of this action of the trial court.

The Local argues that the passage of the disaffiliation resolution effectively disassociated the Local from the International, and therefore a permanent injunction is justified to prevent meddling by the International in the affairs of the now unrelated Local. The trusteeship, however, was imposed before the disassociation became effective, and was specifically intended to prevent the disaffiliation of the Local. If the trusteeship was valid, the vote for separation came too late to be effective. The validity of the trusteeship is thus the principle issue upon which this dispute turns.

II. The Actions of the Local

The Labor-Management Reporting and Disclosure Act provides that a labor organization shall impose a trusteeship over a subordinate body for certain specified purposes, including “restoring democratic procedures.” The International claims that the Local abrogated “democratic procedures” by three specific courses of action.

A. Expulsion of Members

The International first claims that the notice to fifty-eight supervisory employees stating that the Local had “been informed” of their ineligibility for membership was an illegal expulsion. The letter’s language and the surrounding circumstances, however, suggest that no members were expelled by this or any other act of the Local prior to imposition of the trusteeship. There is evidence that the supervisory employees were not in fact taken off the membership rolls of the Local. In addition, they were given an opportunity to appeal their classification; this suggested that no final action had been taken.

The International protests that requirements under 29 U.S.C. § 411(a)(5) of specific charges, time to prepare a defense, and full and fair hearing were not met. The section relied upon, however, is entitled “Safeguards against improper disciplinary action” and provides that “no member . may be . expelled, or otherwise disciplined” without the enumerated safeguards. Even assuming the Local had taken final action to expel the supervisors, that action was not disciplinary in nature. The supervisory personnel were not being removed in order to punish them but rather to comply with a decision of the NLRB Examiner. The Local was not obligated to conform to the specific provisions of § 411(a)(5).

Strictly speaking, the Local may not have been obligated to expel the supervisors since such individuals may be non-voting members of unions. The Local could have simply amended its bylaws to provide for this special non-voting status. As noted, however, the supervisors were not actually expelled by the letter. Indeed, they were specifically invited to show why they ought not to be expelled. The supervisors could have raised the possibility of a non-voting membership at that time. The Local’s notice, therefore, met the minimum standards required by due process under the circumstances.

B. Denial of Vote to Supervisors

The tangible and final action which the Local did take with respect to the fifty-eight supervisors was barring them from voting on the disaffiliation resolution. This provides no basis whatever in support of the International’s position. First, the NLRB Examiner’s decision, as it then stood and as it was later adopted with modifications by the Board, specifically provided that voting by such supervisors was improper. Second, even a unanimous vote by the fifty-eight against the resolution would still not have defeated it. Third, the Local’s Death Benefit Fund, in which the supervisors had an interest, was merely separated, not dissolved. No pecuniary interest of the supervisors was threatened by that action; in fact, if the supervisors were not to remain members of the Local, separation of the Fund was desirable to protect the supervisors’ financial interest.

Thus, the only possible result of permitting the supervisors to vote would have been to invalidate the entire ballot by violating the Examiner’s order, and creating a greater potential of disqualification of the Local as bargaining representative of the non-supervisory employees. To accede to the International’s claim would have required the Local to maintain union democracy by allowing what the NLRB had found to be an unfair labor practice. The Local’s good faith attempt to comply with the law cannot be used by the International as the basis for imposition of a trusteeship.

C. Other Claimed Procedural Defects

The International claims the meeting following the Hearing Examiner’s decision was called with inadequate notice to the farflung membership of the Local. Inasmuch as the posted notice complies precisely with the Local’s by-laws, the International has been unable to illustrate what more could be required of the Local.

A further claim charges that the resolution contains two separate clauses (disaffiliation from the International and separation of the Death Benefit Fund) but allowed only one “yes” or “no” vote. Aside from the International’s inability to cite any authority for the proposition that joint resolutions of this type are impermissible, this court finds it difficult to describe a procedure regularly followed in Congress as a breakdown in the democratic process. In any event, if the resolution for disaffiliation had carried, and the supervisors under the NLRB decision were no longer to be members of the Local, it was necessary to separate the Death Benefit Fund from purely Local administration to protect the interests of the non-member supervisors. The possibility of inconsistent votes on the two related questions was wisely not allowed.

Finally, the International objects to language within the resolution and accompanying it which can arguably be described as advocacy for passage of the resolution by the Local’s leadership. Admittedly the challenged language does not go out of its way to point out that the Trial Examiner’s decision on the need to disaffiliate might not be the final NLRB action. Someone had to send out the ballots and characterize the issues, however. Absent an outright distortion of the facts and issues as reasonably perceived, we shall not presume that the Local’s characterizations and comments on the issues were improper.

D, An Injunction Against Future Interference

In short, no valid factual basis existed for the International’s conclusion that “democratic procedures” had been abrogated. The District Court erred in holding that a breakdown in democratic procedures, requisite to establish a valid purpose for the trusteeship, had occurred in this case. What broke down —and for perfectly valid and understandable reasons — was support in the Local for continued affiliation with the International. The real (and invalid) purpose behind the International’s imposition of the trusteeship was its desire to retain control of the Local’s affairs. This clearly justifies a permanent injunction to prevent the International from interfering further with the affairs of the Local.

III. The Initial Validity of the Trusteeship

Our discussion in Part II illustrates that there was in fact no reason to permit the International to impose a trusteeship on the Local. This issue of the initial validity of the trusteeship is important in this case because the Local is asking that its vote to disaffiliate from the International be held valid and that the International be assessed damages for the harm done the Local as a consequence of the trusteeship. If the trusteeship was unlawfully imposed, it could have no effect upon the validity of the disaffiliation election. The Local should also be permitted to recover whatever monetary damages it suffered due to the wrongful imposition of the trusteeship.

Most obviously, the imposition of the trusteeship would be invalid if at the time of the imposition there was no rational basis for the International’s belief that democratic procedures were in jeopardy. Under the circumstances as they appeared at the time, the International’s assertion that democratic procedures in the Local were endangered appears more as an afterthought justifying abrupt and arbitrary action taken. While the letter informing the supervisory personnel of their ineligibility to vote might have led the International to conclude that some of its members might eventually be expelled from the Local without any valid justification derived from NLRB action, yet the letter clearly invited response from the supervisors affected. The implicit promise of further consideration by the Local hardly provided a legal justification for the precipitate takeover by the International through the frequently abused device of a trusteeship. The purported apprehensions of the International have been shown to be legally incorrect; on this ground alone the establishment of a trusteeship by the International would have been invalid, but to our mind an even stronger reason exists for invalidating the trusteeship.

IV. Failure to Provide for a Hearing

The Local advances a second basis for holding the trusteeship to have been invalid. This claim relies upon the fact that the trusteeship was imposed without giving the Local an opportunity for a hearing. Such a hearing is arguably required by the language of 29 U.S.C. § 464(c), and indubitably would have been helpful in this situation, since a hearing would have given the Local an opportunity to explain that no one was actually being expelled. Once reassured, the International would no longer have had an arguable basis for believing that a trusteeship was necessary. Thus the International’s failure to afford the Local a chance to be heard prejudiced the Local by depriving it of an opportunity to remove the purported basis for the International’s belief that democratic procedures had broken down. If the International was required to allow a hearing and did not do so, the imposition of the trusteeship must be held invalid.

The section relied upon by the Local does not, by its specific terms, make a hearing mandatory whenever a trusteeship is imposed. Upon superficial examination the statute seems simply to say that a trusteeship will be presumed valid if a hearing is held — not that a trusteeship will be invalid if one is not held. The legislative history of § 464(c), as well as policy considerations, however, compel a holding that without a hearing a trusteeship is invalid.

The rationale for such a construction was recently articulated by the Fifth Circuit. The court began by noting that in passing § 464 Congress was extremely concerned with the frequent imposition of trusteeships over subordinate locals for illegitimate purposes. The court then stated:

Under the common law prior to the passage of the . . . [statute], a trusteeship imposed upon a subordinate body was invalid unless the subordinate body was granted a fair hearing. Plentty v. Laborers’ Int. Union of No. America, supra 302 F.Supp. 332 at 338. Congress was aware of this when it enacted the . [statute].
The purpose of the trusteeship provisions of the . . . [statute] was to prevent abuses of union trusteeships and to require disclosure of the reasons for union actions in matters touching the governance of local union affairs, and it would be contrary to that purpose to hold that a fair hearing is not required for authorization or ratification of a trusteeship over a local union, because to so hold would mean that in an important aspect, a union could more easily impose a trusteeship of a subordinate body after passage of the [statute] than it could before.

We agree with this characterization of § 464’s purpose and effect. Both the House and Senate committees that considered the statute observed that prior to its passage “A trusteeship will ordinarily be set aside unless the local is given a fair hearing including notice of the charges and an opportunity to defend.” The Reports contained language that made it clear Congress did not wish to diminish the procedural protections afforded an affiliate:

[A trusteeship is presumed valid] only if the trusteeship was instituted in procedural conformity with the constitution and bylaws of the international labor organization and authorized or ratified after a fair hearing either by its executive or other body provided in its constitution. This limitation will encourage the use of fair procedure within the union. . [I]f dishonesty or bad faith is proved, the bill provides a direct and effective remedy.

This court will not frustrate the clear intent of Congress by making the remedies available to the Local less effective than they were before Congress acted.

Policy considerations, other than those stated by Congress when it passed § 464, support our conclusion that the Local should be given a fair hearing before the imposition of the trusteeship. As we observed, a hearing would have resolved misapprehensions that democratic procedures had been abrogated. In general it is wise to encourage consultation and negotiation before permitting the use of so drastic a measure as a trusteeship. If the International had been acting in good faith, it would have gained as much by hearing the Local’s explanations as would the Local in having an opportunity to give them.

In order for the remedy of a hearing to be as “direct and effective” as possible, it is desirable for it to take place before the imposition of a trusteeship. A hearing would be virtually useless if the parent union could impose a trusteeship and then set a hearing for a year later. The hearing should, if possible, be held prior to trusteeship.

There is no absolute requirement that a hearing be held prior to imposition, since the statute states that a hearing may either “approve or ratify” the trusteeship. The possibility of “ratification” implies that under some circumstances a hearing may occur after a trusteeship is imposed. We can imagine extreme emergencies that might compel action without prior notice and hearing. Even in such an emergency situation, however, a hearing date could he set when the trusteeship was imposed and held shortly thereafter. In this case, the International neither made an attempt to hold a hearing prior to imposition nor later.

In the facts of this case we see no emergency situation that required action without providing the Local with a fair hearing. The letter to the supervisors indicated that they had not been finally and formally expelled. Even if the vote on the resolution was unfair, arguably there was time for some hearing procedures between the mailing of the ballots and the time the disaffiliation was to become effective. If the International felt it possible to take the considerable trouble to create a trusteeship, it could certainly go one small step further and permit the Local to explain why such an action was unnecessary. The actual course chosen here was summary action by fiat that cannot be justified, particularly where the sole alleged purpose of the trusteeship was to restore union democracy. Under the facts of this case, some sort of prior hearing was both possible and required for the trusteeship to be valid, hence the International had no excuse to flout accepted concepts of due process.

For future guidance to unions attempting to abide by the law and courts reviewing union activity, our holding on this point may be summarized as follows. Absent a reasonable belief in the necessity for immediate action, all practical steps must be taken to afford a hearing before a trusteeship is imposed. A trusteeship may be imposed without a hearing only where a parent union could reasonably believe that an emergency situation does not allow time for such a hearing. Even in such emergency situations, at the time the trusteeship is imposed a hearing should be scheduled for the earliest practicable date thereafter. If the parent union does not comply with these requirements, any trusteeship will be treated as void ab initio.

Y. Conclusion

We find that the Local did not in fact violate any democratic procedures in its attempt to disassociate itself from the International. We also find that the trusteeship was not properly imposed, hence had no effect upon the validity of the disaffiliation vote. We therefore reverse the trial court’s denial of a permanent injunction and its dismissal of the Local’s plea for damages. The case is remanded to the District Court for an order dissolving the trusteeship, enjoining future intervention by the Internátional in Local affairs, for hearings on the amount of damages due the Local, and for any other action deemed appropriate and consistent with this opinion.

So ordered.

      . The Fund is a trust, created pursuant to Section 302(c) (5), Labor-Management Relations Act of 1947, 29 U.S.C. § 186(c) (5) (1970). One trustee is appointed by the bituminous coal operators signatory to the National Bituminous Coal Wage Agreement of 1968, a second by the International, and a third trustee by the other two trustees. The three trustees administering the Fund at all times relevant herein were W. A. Boyle, appointed by the UMWA, who is also the president of the UMWA; C. W. Davis, appointed by the signatory bituminous coal operators; and Josephine Roche, selected by the other two trustees, who also acted as Director of the Fund.

      . UMWA Welfare and Retirement Fund, No. 27-OA-2667 (4 Aug. 1970) (reprinted in Joint App., Yol. I at 22.)

      . Joint liability for damages, and further injunctive relief, were claimed against (1) the National Bank of Washington for allegedly “freezing” the Local’s funds upon receipt of notice of the trusteeship, (2) Hamilton Leasing Corporation for failing to turn over the ballot box to the Local without a court order, and (3) the Fund for allegedly conspiring with the International to interfere with the internal affairs of the Local. The District Court dismissed the Local’s claims as to these parties. On this appeal the Local has made no real attempt to show that this holding by the District Court as to these three defendants was improper. After argument we therefore affirmed from the bench the District Court’s dismissal as to the Fund, the National Bank of Washington, and the Hamilton Leasing Corporation. Order and Judgment, No. 2778-70, 3 Nov. 1972.

      . Local Union 13410, UMWA v. United Mine Workers of America, 325 F.Supp. 1107 (1971).

      . The Local also argues that the trusteeship is invalid because the International’s constitution does not include specific provisions on either the procedure or the grounds for imposing a trusteeship. Despite the lack of such requirement in the statute, a few cases in other jurisdictions have intimated that specific provisions are necessary. United Bhd. of Carpenters and Joiners of America v. Brown, 343 F.2d 872, 883 (10th Cir. 1965); Local No. 2, Int’l Bhd. of Tel. Workers v. Int’l Bhd. of Tel. Workers, 261 F.Supp. 433, 434-435 (D.Mass.1966). Still other jurisdictions have held to the contrary. Luggage Workers U. Local 167 v. Int’l L. G., P. & N. W. U., 316 F.Supp. 500, 504-505 (D.Del.1970); Int’l Bhd. of Elec. Workers, Local 1186 v. Eli, 307 F.Supp. 495, 503 (D.Hawaii 1969). Since we find for the Local on other grounds, we do not decide this important issue in this opinion.

      . The International argues that the Local has failed to exhaust its intra-union remedies and has not therefore complied with 29 U.S.C. § 464(a) (1970). In light of the reasons given to justify the action taken by the International, and which officials took the action, it is obvious that attempts at intra-union adjudication would have been futile. Under such circumstances the Local is not obligated to exhaust every possible intra-union avenue of relief. See, e. g., Parks v. Int’l Bhd. of Elec. Workers, 314 F.2d 886, 924-925 (4th Cir. 1963).

      . 29 U.S.C. § 462 (1970).

      . The letter is reprinted in Joint App., Vol. Ill at 550.

      . In a letter to one of the supervisors the president of the Local said, “I would like to advise you again that you remain on the membership rolls of this Union.” Letter from Robert A. Olds to Harold H. Bacon, 9 Nov. 1970, Joint App., Vol. Ill at 476.

      . The letter to the 58 supervisors said: “If you feel you do not occupy a position that is supervisory or exempt in nature, I would appreciate you advising me in writing your reasons so that we might re-consider your eligibility.” Letter from Local President Robert A. Olds to 58 Supervisory Personnel, Joint App., Vol. Ill at 550.

      . 29 U.S.O. § 411(a)(5) (1970).

      . 29 U.S.O. § 164(a) (1970).

      . See note 10, supra.

      . UMWA Welfare and Retirement Fund, No. 27-OA-2607 (4 Aug. 1970) (reprinted in Joint App., Vol. I at 22, 38), modified in part, 192 N.L.R.B. No. 120 (25 Aug. 1971).

      . Joint App., Yol. Ill at 479.

      . The disaffiliation resolution was phrased with a number of “Whereas” clauses. The resolution is reprinted in Joint App., Vol. III at 546.

      . “In any proceeding pursuant to this section a trusteeship . . . authorized or ratified after a fair hearing . shall be presumed valid for a period of eighteen months from the date of its establishment and shall not be subject to attack during such period except upon clear and convincing proof that the trusteeslnp was not established or maintained in good faith for a purpose allowable under section 462 of this title.” 29 U.S.C. § 464(c) (1970).

        . Ibid.

      . Jolly v. Gorman, 428 F.2d 960 (5th Cir. 1970).

      . Id. at 967 (emphasis added).

      . Two cases other than Jolly v. Gorman have held that § 464 requires a hearing. See Bailey v. Dixon, 429 F.2d 1321 (5th Cir. 1970); Local No. 2, Int’l Bhd. of Tel. Workers v. Int’l Bhd. of Tel. Workers, 261 F.Supp. 433, 435-436 (D.Mass. 1966). See also Parks v. Int’l Bhd. of Elec. Workers, 314 F.2d 886, 912 (4th Cir. 1963).

      . Senate Report No. 187, U.S.Code Cong. & Admin.News, 86th Cong., 1st Sess., 1959, Vol. 2 at 2318; House Report No. 741, id., at p. 2424.

      . Senate Report No. 187, note 22, supra, at p. 2334; House Report No. 741, note 22, supra, at p. 2436.

      . In the Order revoking the charter of the Local, the International said that the Local could ask for a hearing. Joint App., Vol. III at 533. It is clear, however, that no attempt was made to afford a hearing prior to the imposition of the trusteeship.

      . The formulation we enunciate here is somewhat different from that stated by the Fifth Circuit in Jolly v. Gorman, notes 18-20, supra, and accompanying text. In Jolly the court considered the issue of when a hearing should be held:
      The determination of whether a trusteeship has been authorized or ratified by a fair hearing is necessarily made on a case-by-case basis. For example, under some circumstances, a lapse of eleven months from the time that a trusteeship is imposed to the time that a fair hearing is held and ratification made, may be considered unreasonable and insufficient to fullfill the requirement of a fair hearing to authorize or ratify the imposition of a trusteeship.
      428 F.2d at 968, n. 2. This standard was repeated in Bailey v. Dixon, 429 F.2d 1321, 1322 (5th Cir. 1970).
      We, of course, agree that the particular facts of a case may be relevant to the disposition; facts suggesting the existence of an emergency may permit the imposition of a trusteeship without prior hearing. Hopefully, the standard we enunciate will give unions a clearer understanding of what is expected of them and will provide a more objective standard for courts to apply when asked to review union action.


author: J. SKELLY WRIGHT, Circuit Judge: TAMM, Circuit Judge,

text:
    Ralph NADER v. John VOLPE, Secretary of Transportation, et al., Appellants.
    No. 71-1211.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 12, 1973.

      Mr. Walter H. Fleischer and Mrs. Greer S. Goldman, Attys., Dept, of Justice, were on the motion for appellants.
    Mr. Howard A. Heffron, Washington, D.C., was on the opposition to the motion for appellee.
    Before WRIGHT, TAMM and McCREE, Circuit Judges.

       Of the Sixth Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a) (1970).

   J. SKELLY WRIGHT, Circuit Judge:

Appellee Nader brought an action in the District Court seeking a declaration that appellant Secretary of Transportation had exceeded his authority under the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1381 et seq. (1970), by granting Checker Motors Corporation a temporary exemption from the effective date of a Motor Vehicle Safety Standard promulgated by the Secretary. Appellants sought to have the action dismissed as moot since the exemption had been withdrawn and Checker had come into compliance prior to the hearing before the District Court. The District Court, relying on a post-hearing memorandum by the Government which stated that the Secretary continued to believe the Department of Transportation had authority to grant exemptions to a single manufacturer in situations not encompassed by 15 U.S.C. § 1410 (1970) and would, in appropriate circumstances, consider granting them, found the case not moot and reached the merits, holding that the Secretary had no power to grant exemptions except in those cases expressly authorized in Section 1410. See Nader v. Volpe, D.D.C., 320 F.Supp. 266 (1970). We affirmed the case by order dated September 28, 1972, noting our general agreement with the reasons stated by the District Court. Judge Tamm dissented from that order on the ground that the case should have been dismissed as moot.

The Secretary has now moved to vacate our decision on the ground that on October 25, 1972, subsequent to our decision, Congress enacted Public Law No. 92-548, 86 Stat. 1159, amending 15 U.S.C. § 1410 (1970), thereby mooting the controversy and preventing the Government from seeking Supreme Court review of our judgment. We do not agree that Public Law No. 92-548 moots this case and accordingly deny the Secretary’s motion.

Before discussing the effect of Public Law No. 92-548 on the mootness question, it would be helpful if we explain in greater detail our reason for initially deciding the case was not moot. Where a court is asked to adjudicate the legality of an agency order, it is not compelled to dismiss the case as moot whenever the order expires or is withdrawn. Consideration of important legal issues “ought not to be, as they might be, defeated, by short terms orders, capable of repetition, yet evading review * Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See also Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Jeannette Rankin Brigade v. Chief of the Capitol Police, 137 U.S.App.D.C. 155, 157, 421 F.2d 1090, 1092 (1969). In this case, the District Court properly found, on the basis of the Government’s own post-hearing memorandum, that temporary exemptions such as the one granted to Checker would be granted to Checker or to other manufacturers in the future, and that to dismiss cases challenging the legality of such exemptions simply because the exemption had been withdrawn or had expired would prevent courts from ever deciding the important question of whether or not the Secretary has authority to issue such exemptions.

Enactment of Public Law No. 92-548 does not affect the mootness question. Although it authorizes the Secretary to grant temporary “hardship” exemptions to manufacturers such as Checker whose total motor vehicle production is less than 10,000 vehicles per year, there is no indication that the authorization is to have retroactive effect. Even assuming arguendo this law has retroactive effect, the exemption granted to Checker would not be authorized thereunder since the law authorizes the Secretary to grant exemptions only after certain procedures have been followed, and it is clear from the record in this case that these procedures were not followed when the Secretary granted the Checker exemption.

The only other manner in which the present motion might affect the mootness question is if the motion constituted a retraction by the Secretary of his earlier position, expressed in the Government's post-hearing memorandum, that he continues to believe he has implied authority, in cases not encompassed by Section 1410, to grant a temporary exemption to a single manufacturer and/or to postpone the effective date of a safety standard for a single manufacturer. Having carefully read the Secretary’s present motion, we cannot find any such retraction. In light of these facts, the issue that the District Court decided still requires judicial resolution. And we think it clear, both under the version of Section 1410 initially before us and under Section 1410 as amended by Public Law No. 92-548, that the Secretary’s sole authority to exempt a manufacturer from a safety standard, even if that exemption takes the form of a postponement of the effective date of the safety standard for a single manufacturer, derives from Section 1410. There is no implied authority to grant exemptions or postponements in situations not encompassed by that section.

Motion to vacate denied.

TAMM, Circuit Judge,

dissenting:

As I did with respect to the judgment of affirmance entered in this case, I dissent, believing that the court’s opinion in Alton & Southern Railway Co. v. International Ass’n of Machinists & Aerospace Workers, 150 U.S.App.D.C. 36, 463 F.2d 872 (1972), requires dismissal of this case on the ground of mootness.


author: PER CURIAM: MacKINNON, Circuit Judge,

text:
    Philip BERRIGAN, Daniel J. Berrigan, Appellants, v. Maurice SIGLER, Chairman of the Board of Parole, and all members of the said Board of Parole (all of whom have their offices at room 354 HOLC Building), et al.
    No. 73-1049.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 16, 1973.
    Decided Jan. 17, 1973.

      Morton Stavis, Newark, N. J., for appellants.
    Gil Zimmerman, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Arnold T. Aikens, Asst. U. S. Attys., were on the pleadings, for appellees.
    Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
   ORDER

PER CURIAM:

This case came on for consideration of the motion for emergency relief by way of summary reversal, and the court heard argument of counsel. While the denial of a temporary restraining order is normally not appealable, an exception is made where the denial serves for all practical purposes to render the cause of action moot or where appellant’s rights will be irretrievably lost absent review. See McSurely v. McClellan, 138 U.S.App.D.C. 187, 191, 426 F.2d 664, 668 (1970); Dilworth v. Riner, 5 Cir., 343 F.2d 226, 229 (1965). Since it is evident that invitations to visit North Vietnam are granted sparingly and that the present invitation is subject to a time restriction which is soon to expire, the Parole Board’s refusal to grant appellants permission to travel to North Vietnam and the District Court’s order denying a temporary restraining order against such refusal will irretrievably deny appellants the opportunity presently afforded them and may well moot this case. Accordingly, we find that this court has jurisdiction to hear this appeal.

With respect to the question of the likelihood of success on the merits as it pertains to the District Court’s denial of a temporary restraining order, it is uncontroverted that the Parole Board’s refusal to approve appellants’ proposed visit to North Vietnam interferes with their right to travel and their First Amendment right to freedom of association. The Parole Board has offered two justifications for this interference, arguing that the trip will interfere with Parole Board efforts to rehabilitate appellants and is contrary to the national interest as determined by the State Department. We find neither justification persuasive. The proposed visit to North Vietnam will be of short duration, and it is clear that it will not interfere with the rehabilitation of appellants, especially since the Board has made no active effort to rehabilitate appellants since the date of their release. While the proposed trip undoubtedly raises questions of the national interest in light of the current status of relationships between the United States and the government of North Vietnam, the Parole Board has no special competence in the area of foreign policy and such matters as these are best left in the control of the State Department, subject to the limitations imposed by law. See Lynd v. Rusk, 128 U.S.App.D.C. 399, 389 F.2d 940 (1967).

In view of the foregoing, we can find no interest, compelling or otherwise, served by the Board’s refusal to approve appellants’ proposed trip, and their right to travel and to freedom of association must prevail. See Sobell v. Reed, S.D.N.Y., 327 F.Supp. 1294 (1971).

It is therefore ordered by this court that the order of the District Court denying a temporary restraining order be, and it is hereby, vacated; and

It is further ordered by the court that appellee Parole Board members be, and they are hereby, temporarily restrained from withholding their approval of appellants’ proposed trip to North Vietnam; and

It is further ordered by the court that this case is remanded to the District Court for further proceedings not inconsistent with this order.

Chief Judge BAZELON’S statement concurring, joined in by Circuit Judge J. SKELLY WRIGHT, is attached. Circuit Judge MacKINNON’s statement dissenting is also attached.

It is further ordered by the court that, on application of the United States, this order is stayed until 6:00 p. m. today, January 17, 1973.

Statement of Chief Judge BAZELON, in which Circuit Judge J. SKELLY WRIGHT joins:

I would grant the Berrigans the relief they seek. That relief is not an order directing the government to permit them to travel to North Vietnam. Rather, it is an injunction restraining one federal agency — the United States Parole Board —from withholding permission for the trip. The authority — if any — of the Department of State to grant or deny its permission is not at issue in this case.

The most troublesome problem on these appeals is jurisdictional. By statute, our review is limited to final orders. The denial of a temporary restraining order does not commonly fall into that category. It is well-established, though, that the question of finality is a pragmatic one. Brown Shoe v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); McSurley v. McClellan, 138 U.S.App.D.C. 187, 426 F.2d 664 (1970). If the effect of denying the temporary restraining order is to preclude the trip altogether, it is, for practical purposes, a final determination and is accordingly ripe for review.

The Berrigans have represented to us that their opportunity to make the trip is fleeting; that they have a single, limited invitation from the North Vietnamese ; that passenger flights to Hanoi are infrequent; and that failure to leave the United States on schedule will cause them to miss essential connections further on. In short, they maintain that any delay in resolving their claim will be tantamount to a denial. Absent refutation, we should accept those representations. On that basis, the case appears to be appropriate for appellate review.

The question on the merits is the Berrigans’ claim that their Constitutional right to travel, Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, has been denied. We consider this claim in the awareness that the Berrigans are presently under the legal authority of the Parole Board. The Board’s authority can be exercised, however, only in accordance with the rule of law. That historic check on governmental power is central to our democratic traditions. A fundamental principle of law is that every governmental agency —including the Parole Board — must respect the rights of every citizen.

The Board has offered two explanations for its refusal to permit this particular trip:

1) The Board would be unable to exercise its “supervisory responsibilities looking to rehabilitation” of the two priests during the 10 days they are overseas.

2) It would be improper to permit travel to North Vietnam because the State Department has “informally” informed the Board that the trip would not be in the national interest.

The Board’s first contention is so transparently unrealistic as to cast doubt on its entire presentation in this proceeding. Other than admitting the two brothers to parole, there is no indication that the Board has made any effort toward rehabilitation in regard to either of them. Since he was granted parole, Father Daniel Berrigan has traveled extensively in Europe and the United Kingdom, Never until now has the Board suggested that overseas travel would interfere with its unspecified supervisory activities. During his brief period as a parolee, Father Philip Berrigan’s sole contact with the Board has been his request to come to this court for argument on his motion. Yet the Board claims that the need for rehabilitative supervision during the next ten days is so great as to justify the denial of a Constitutional right. In light of its prior record of inactivity, the Board’s stated rationale cannot even be described as “facially legitimate and bona fide”. Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972).

By implication, then, the Board’s second point must be the real basis for its decision; but for the State Department’s viewpoint, presumably, the Board would permit the trip. The Board concedes that the “impropriety” of this trip is a question within the State Department’s “foreign relations competence”. The Board also concedes that numerous Americans from all walks of life — including other priests, other pacifists, and other convicted felons — have traveled to Hanoi without objection from the State Department. It may be that the Berrigans’ visit will be different. But that kind of delicate diplomatic determination is properly the province of the Secretary of State.

Accordingly, the Parole Board should be enjoined from refusing the Berrigans’ request for permission to travel to North Vietnam based on the reasons asserted and relied upon by the Board. Cf. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320 (1939). The matter appears to be one for the consideration of the Secretary of State in light of the applicable law and regulations.

MacKINNON, Circuit Judge,

dissenting:

Philip and Daniel Berrigan, brothers, were convicted of federal felonies growing out of their opposition to the United States position in the Vietnam war. The trial court adjudged a lengthy sentence of imprisonment which has been partially served. They were then granted parole for the remainder of their sentence, which still has in excess of two years to run.

The parole was granted subject to certain conditions.

The parole of Philip Berrigan was effected by a “Certificate of Parole” given by the United States Board of Parole on the 16th day of December, 1972 which provided:

that he be PAROLED on December 20, 1972, and that he remain within the limits of District of Maryland until September 14, 1975 ....
This CERTIFICATE OF PAROLE will become effective on the date of release shown on the reverse side. If the parolee’s continuance on parole becomes incompatible with the welfare of society, or if he fails to comply with any of the conditions listed on the reverse side, he may be retaken on a warrant issued by a Member of the Board of Parole, and reimprisoned pending a hearing to determine if the parole should be revoked.
CONDITIONS OF PAROLE
1. You shall go directly to the district shown on this CERTIFICATE OF PAROLE (unless released to the custody of other authorities). Within three days after your arrival, you shall report to your parole advisor if you have one, and to the United States Probation Officer whose name appears on this Certificate.....
3. You shall not leave the limits fixed by this CERTIFICATE OF PAROLE without written permission from the probation officer.

It is assumed that these conditions are applicable to appellants.

In addition to the foregoing conditions of parole, regulations promulgated by the Department of Justice provide:

§ 2.28 Same: travel by parolees and mandatory releases.
Except as otherwise provided in this section, it is the general rule of the Board that a parolee may travel outside his supervision district only with the prior approval of the Board. Travel outside a district without prior Board approval may be authorized by a probation officer subject to the following-described limitations.
(a) Board approval shall be required for vacation trips outside the district.
(c) Board approval shall be required for travel outside the continental limits of the United States, including travel or work aboard ship.
(d) Board approval shall be required in any case in which specific travel conditions have been imposed upon the parolee by the Board.

28 C.F.R. § 2.28.

With their prison release posture being in the foregoing status, appellants were invited by the “Hanoi Solidarity Committee” to visit North Vietnam for the alleged purpose of meeting with members of certain religious groups, and others termed “coalitionists,” for the avowed purpose of furthering the aims and objectives of such group in North Vietnam and in the United States. Appellants, as required by the terms of their parole, applied to the probation officer of the United States Parole Board for written permission to go to Hanoi in response to the invitation of the “Hanoi Solidarity Committee” and said application was denied. Thereafter appellants brought this proceeding in the United States District Court for the District of Columbia, and requested a temporary restraining order directing the U.S. Board of Parole to grant written permission to travel to North Vietnam. Following oral argument the District Court denied the motion on January 15, 1973 and set the matter down for hearing on the motion for preliminary injunction on January 18, 1973 at 9 A.M. Notwithstanding this procedural status, the appellants appealed to this court and the appeal on the denial of the temporary restraining order was heard on January 16,1973.

By affidavit of an official of the Board of Parole it is stated that:

The Board’s reasons for denial of the current requests of Daniel and Phillip [sic] Berrigan (presently serving under parole supervision within the jurisdiction of the U. S. Board of Parole) for permission to travel to Hanoi are as follows:
1. Total lack of any means of control to effectuate the Board’s supervisory responsibilities looking to the rehabilitation of the parolees, where they would be visiting in an area where the United States has no diplomatic representative of its own or, in lieu thereof, any foreign power to represent it or its interests.
2. The impropriety of the U. S. Board of Parole, an agency of the United States Government giving approval, within its area of responsibility, to conduct directly contrary to the expressed policy determination of the Secretary of State, acting within his foreign relations responsibilities, that such conduct is not in the national interest of the United States.

In addition, the brief of the United States Attorney, representing the Board of Parole, states:

Note: We have been informally advised that the Department of State is of the view that, insofar as it can perceive, there is no basis for its determining that appellants’ proposed travel to North Vietnam would be “in the national interest of the United States” within the meaning of 22 C.F.R. § 51.-73.

Since appellants have represented to this court that they do not expect their trip to last over two weeks, any discussion of reason (1) in the Board’s affidavit is unnecessary. The length of time appellants would be outside the Board’s supervision is not sufficient to justify refusal of their request on this ground.

However, the second ground is “facially legitimate and bona fide” within Kleindienst v. Mandel, 408 U.S. 753, 769-770, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), and must be sustained. This ground has additional force because the nature of the offenses committed by appellants, and for which offenses they are still serving their sentences, involved their violation of federal statutes in connection with their support of the position of the North Vietnamese government as opposed to that of the United States. The restriction here is thus reasonably related to the basic cause of the imprisonment. There is thus every justification for the Board of Parole to take the position it has taken and this court has no authority to set aside that decision. As a matter of fact, it is customary for parole boards to impose parole conditions which require parolees to abstain from involvement in matters which led to their convictions.

In addition, this court is without jurisdiction to hear this appeal because appellants’ right to travel to North Vietnam will not be irretrievably lost if they do not go to Hanoi at this time. Allen v. Hickel, 138 U.S.App.D.C. 31, 37, 424 F.2d 944, 954 (1970); Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29, 36, 420 F.2d 597, 604 (1969); Austin v. Altman, 332 F.2d 273, 275 (2d Cir. 1964); see 28 U.S.C. § 1651(a) and cases thereunder. Appellants contend that the temporary restraining order is a final appealable order because any further delay would moot the issue as to the relief sought. While this may be appealable if that were, in fact the reality of the situation, I feel there has been a wholly insufficient showing on that issue. While it may be more inconvenient to go at a later time, and while there is a possibility that the invitation will not be renewed; this is hardly the kind of permanent, irreparable damage that requires our review of an otherwise nonreviewable temporary restraining order. In short, I am not convinced that if the appellants are not allowed to go to North Vietnam, now, they never will. Therefore, we have no jurisdiction but to deny the motion for summary reversal and dismiss the appeal.

This raises another major ground for denying the relief requested. That is that our review of the denial of this alleged de facto preliminary injunction is controlled by the familiar test of Virginia Petroleum Jobbers Ass’n v. Federal Power Commission, 110 U.S.App.D.C. 339, 293 F.2d 527, cert. denied, 368 U.S. 940, 82 S.Ct. 377, 7 L.Ed.2d 339 rehearing denied, 368 U.S. 979, 82 S.Ct. 477, 7 L.Ed.2d 441 (1962). I find the denial of the Berrigans’ right to travel to North Vietnam at this time does not constitute the kind of irreparable injury that requires us to invoke our extraordinary equity powers. Moreover, in light of the Parole Board’s inherent authority to restrict the travel of a convicted criminal. I see little likelihood that appellants will finally succeed on the merits. Lastly, the public interest clearly lies on the side of the Parole Board as explicitly enunciated by the State Department.

It is thus concluded that the District Court properly exercised its discretion in denying appellants’ motion for a temporary restraining order.

The other members of the panel imply that the Secretary of State has authority to restrict appellants’ travel to North Vietnam. That statement is completely unfounded. Thé power rests with the Board of Parole and they have consulted the State Department. There is no force or logic to the contention that the procedure is invalid unless the order is reversed as between the respective agencies supplying the impetus to the decision. To merely state the claim exposes its invalidity. It clearly was within the original jurisdiction of the Parole Board in its authority over convicted criminals to refuse to consent to this proposed travel outside the United States.

      . 27 days ago. His brother Daniel was paroled previously. The conditions of Ms parole are “identical.”

      . Appellants are both ordained Catholic priests.

      . 22 C.F.R. § 51.73 provides:
      § 51.73 Special validation of passport for travel to restricted areas.
      (a) An application of a TJ.S. national for validation of his passport for travel to, in or through a restricted country or area will be considered only when such action is determined to be in the national interest of the United States.
      (b) An application will be considered to be in the national interest of the United States if:
      (1) The applicant is a professional reporter, the purpose of whose trip is to obtain, and make available to the public, information about the restricted area; or
      (2) The applicant is a doctor or scientist in the field of medicine or public health, the purpose of whose trip is directly related to his professional responsibilities ; or
      (3) The applicant is a scholar with a postgraduate degree, or its equivalent, the purpose of whose trip is to obtain for public dissemination, further information in his field of research; or
      (4) The applicant is a representative of the American Red Cross.
      (c) In the discretion of the Secretary, an application may be considered to be in the national interest of the United States, depending upon the restricted area to be visited, the benefit to the United States of such a visit, and the applicant’s need to visit the restricted area, if:
      (1) The applicant, although not a reporter by profession, establishes that one of the news media has indicated an interest in publishing a report of the applicant’s trip; or
      (2) The applicant’s activities in cultural, athletic, commercial, educational, professional, or other fields or in public affairs demonstrate that his visit to the restricted area would be of benefit to the United States ; or
      (3) The applicant establishes that his trip is justified by compelling humanitarian considerations.
      (d) An application for validation of a passport for travel to a restricted area must be accompanied by evidence that the applicant falls within paragraph (b) or (c) of this section or would otherwise serve the national interest of the United States.

      . A recent example of such a restriction which is well within public memory was the condition on the release of James R. Hoffa that he abstain, from certain union activity.


author: '• McCREE, Circuit Judge:

text:
    Robert H. TURTLE, Appellant, v. INSTITUTE FOR RESOURCE MANAGEMENT, INC., et al.
    No. 71-1251.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 22, 1973.
    Leslie Scherr, Washington, D. C., wa’s on the brief for appellant.
    Benny L. Kass, Washington, D. C., was on the brief for appellee, A. Harvey Block.
    Norment Custis, Washington, D. C., was on the brief for appellee, Lawrence M. White.
    Before TAMM and MacKINNON, Circuit Judges, and WADE H. McCREE, Jr., United States Circuit Judge for the Sixth Circuit.

       Sitting by designation pursuant to 28 U.S.G. § 291(a) (1970).

   '• McCREE, Circuit Judge:

.Under 28 U.S.C. § 1291, the United States courts of appeals have jurisdiction to review “final decisions” of the United States district courts. A “final decision” is one which disposes of the whole case on its merits, e. g., John Thompson Beacon Windows, Ltd. v. Ferro, Inc., 98 U.S.App.D.C. 109, 232 F.2d 366, 368 (1956), by rendering final judgment “not only as to all the parties, but as to the whole subject matter and as to all causes of action involved.” Tauzin v. Saint Paul Mercury Indemnity Co., 195 F.2d 223, 225 (5th Cir. 1952). When there are multiple parties and/or multiple claims involved, Fed.R.Civ.P. 54(b) provides an exception to this requirement by allowing a district court to direct the entry of final judgment upon less than all of the claims or with respect to less than all of the parties if the court expressly determines that there is no just reason for delay and expressly directs the entry of such judgment. In the absence of such determination and direction, an appeal of an order terminating the litigation with respect to less than all of the claims or parties involved must be dismissed. Chvala v. D. C. Transit System, Inc., 110 U.S.App.D.C. 331, 293 F.2d 519 (1961), judgment rev’d, 113 U.S.App.D.C. 171, 306 F.2d 778 (D.C.Cir.1962); Southern Parkway Corp. v. Lakewood Park Corp., 106 U.S.App.D.C. 372, 273 F.2d 107 (1959).

Accordingly, dismissal of this appeal for lack of jurisdiction is required because of lack of compliance with Rule 54(b). This is so either because the complaint was dismissed with respect to only two of the defendants, Bailey v. Rowan Drilling Co., 441 F.2d 57 (5th Cir. 1971); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847, 848 (3d Cir. 1970); Lehrer v. McCloskey Homes, Inc., 242 F.2d 190 (3d Cir. 1957), judgment rev’d, 245 F.2d 11 (3d Cir. 1957), or because defendant Block’s counterclaim is still pending before the District Court. Illinois Tool Works, Inc. v. Brunsing, 378 F.2d 234 (9th Cir. 1967), judgment aff’d, 389 F.2d 38 (9th Cir. 1968); Williams v. Bernhardt Bros. Tugboat Service, Inc., 357 F.2d 883 (7th Cir. 1966).

If, following the issuance of our mandate in this case, the District Court makes the determination and direction required by Rule 54(b), or if plaintiff agrees to the dismissal of his complaint with respect to the remaining defendants with(out) prejudice and defendant Block agrees to the dismissal of his counterclaim with(out) prejudice, plaintiff’s appeal will be considered by this court on the briefs and record heretofore filed. See Illinois Tool Works, Inc. v. Brunsing, supra; Southern Parkway Corp. v. Lakewood Park Corp., supra.


author: TAMM, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHWARTZ BROTHERS, INC., and District Records, Inc., Respondents.
    No. 72-1150.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 2, 1972.
    Decided Jan. 23, 1973.

      Paul J. Spielberg, Atty., N. L. R. B., with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., was on the brief, for petitioner.
    John M. Bray, Washington, D. C., with whom Allen G. Siegel, Washington, D. C., was on the brief, for respondents. David J. Berman, Washington, D. C., also entered an appearance for respondents.
    Before TAMM and LEVENTHAL, Circuit Judges, and CHARLES E. WYZANSKI, Jr., Senior United States District Judge for the District of Massachusetts.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   TAMM, Circuit Judge:

This case comes to us on Application for Enforcement of an Order of the NLRB, relating to purported violations of 29 U.S.C. § 158(a)(5) and (1) (1970) (§ 8(a)(5) and (1) of the National Labor Relations Act) for refusal on the part of the respondent, Schwartz Brothers, Inc., to bargain with the duly certified representative of its employees. We grant enforcement.

I. Facts

On September 14, 1970, Warehouse Employees Local Union No. 730, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America [hereinafter “Union”], filed a petition for a representation election among the warehouse employees of Schwartz Brothers, Inc. [hereinafter “Company”]. The election was set by the Regional Director of the NLRB for December 15, and the Company's Request for Review of the Director’s action was denied by the Board.

Five days immediately prior to the election the Company discharged Christopher Jeato from its employ, and subsequently posted the following notice on the warehouse bulletin board: “Notice of Discharge — Christopher Jeato has been fired because he was the No. 1 union man here.” The Union, claiming it had intended to use Jeato as its observer at the election, disclosed at a meeting of Company, Board, and Union representatives on the morning of the 15th that it would not have an observer present at the election. As a result, the Board agent in attendance was given a list of nine employees (subsequently pared to seven) appearing on the Company’s eligibility list whom the Union wished to challenge. The agent, aware of his delicate position of neutrality in representation elections, advised the Union that he would try to honor their challenge list on the basis of the reasons cited but would not be responsible if he failed to do so. Despite continued insistence by the Union that Jeato be allowed as their observer, the Company refused to allow him on the premises except to cast a challenged ballot — thus, as the polls opened only the Company observer and Board agent were present at the election table.

Eleven individuals were challenged during the course of the election: (a) Three individuals whom the Regional Director had found ineligible appeared to vote, and to each of them the agent stated: “Your vote is being challenged by the NLRB pursuant to its Decision and Direction of Election.” (b) Jeato was challenged by the Company’s representative and the Board. The Board agent stated: “You are being challenged by the Board because your name does not appear on the eligibility list and by the [Company] on the ground that you have been terminated.” (c) When each of the seven individuals on the Union’s list appeared, the Board agent stated “The Union has challenged your right to vote” and added the specific basis for the challenge. All of the challenged individuals were advised on how to cast a challenged ballot. The election results showed 50 employees voted for representation by the Union, 24 against, and 11 east challenged votes.

Six days thereafter the Company filed timely objections concerning the conduct of the election, contending that “when an NLRB agent, acting as the agent of the Union, challenges the ballots of employees whose names appear on the eligibility list, employees are led to believe that the NLRB favors the Union, and the neutrality and objectivity of the Board in the conduct of the election is destroyed.” In support of its contention the Company submitted only an affidavit of its own election observer, which essentially recited the facts as stated above and added that “[m]any of the seven challenges [“on behalf” of the Union] made by [the Board agent] occurred while other employees were in the voting area.” The Company additionally brought attention to the Board’s own Field Manual, which at § 11338 reads in pertinent part:

Any observer has the right to challenge a voter for cause. The Board agent must challenge anyone whose name is not on the eligibility list. Also, he must challenge a voter if he knows or has reason to believe that the voter is ineligible to vote, but, in this instance, he should not challenge until and unless none of the parties voices a challenge. The Board Agent will not make challenges on behalf of the parties, whether or wot such parties have observers present. (Emphasis added.)

The Regional Director in his Supplemental Decision and Certification of Representative considered that although a departure from the literal mandate of § 11338 had possibly occurred, it was justified in view of the Company’s questionable behavior in discharging Jeato, the failure (understandable in view of the fate of Jeato) of the Union to produce another observer, and the necessity to avoid “a situation in which potentially ineligible voters could have cast unchallenged ballots and thus could have affected the results of the election.” The Company subsequently filed a request for review with the Board, alleging that the failure to fully comply with § 11338 had destroyed the “laboratory” conditions necessary in representation elections. The Board denied the request, finding that it raised no substantial issues warranting review.

The Certification proceedings thus completed, the Company nonetheless refused to negotiate and on July 20, 1971, the Union filed charges under § 8(a)(5) and (1) of the Act. The Regional Director issued his Complaint and Notice of Hearing, the Company responded, and the General Counsel moved the Board for summary judgment. In response to the Board’s Notice to Show Cause, in opposition to the motion for summary judgment, the Company renewed the § 11338 issue and for the first time contended that the Regional Director should have directed an evidentiary hearing in the representation proceeding. The Board on November 11, 1971, issued its Decision and Order finding that the Company had indeed violated § 8(a)(5) and (1) of the Act, and ordered appropriate corrective action. Now, finally, the Board brings this action for enforcement of the Order.

II. Discussion

The Employer argues that when the Board agent stated the challenges raised by the Union, in the absence of a Union observer, he contravened the Field Manual procedure, destroyed the neutrality so necessary in representation elections, and thus voided the results. To accede to such a line of reasoning we would be required to adopt a definition of the word “make,” as used in § 11338, which would be much broader in scope than “originate” or “initiate” — one which would include stating challenges already raised by a party but unable to be “voiced” by the party due to its unexpected absence. We decline to adopt such a definition.

We disagree that favoritism or loss of Board neutrality is the concern to which § 11338 is aimed. Rather, we find the section directed at fostering a policy mandated by the Board’s position in representation elections: namely, that the responsibility for initiating challenges on behalf of the parties lays with the parties rather than the Board agent. Thus, § 11338 directs itself to the question of whom the Board agent must challenge — those whose names are not on the eligibility list, and those whom the Board agent knows or has reason to know are ineligible to vote, so long as none of the parties first challenges — and mandates that in all other instances the challenges must be made by the parties. Here no challenge was made on behalf of the Union; rather, a challenge made by the Union was stated by the agent. “Make” in the sense of “make ... on behalf of the parties” means “originate” or “initiate,” and clearly here there was only a statement of an already existing challenge. We note that with regard to Jeato the Board agent stated a challenge made by the Company, just as he stated other challenges already made, originated, by the Union. We reject the Company’s contention that the Board agent acted in contravention of § 11338.

We do recognize the weighty responsibility of the Board to maintain so-called “laboratory conditions” in the conduct of representation elections. General Shoe Corp., 77 N.L.R.B. 124, 127 (1948). Paraphrasing the words of Mr. Justice Frankfurter, impartiality must satisfy the appearance of impartiality. Therefore, we feel that three guidelines should be established in instances similar to that sub judice where it becomes necessary for the Board agent to state a challenge in the absence of the originating party: (1) The Board agent must be completely impartial, and show no favoritism in any manner in stating the challenge. As the facts above amply demonstrate, neutrality was maintained in the manner in which the challenges were stated. (2) The Board agent must not resort to action similar to that involved herein except when necessitated by an unexpected occurrence. Just as the parties are expected to initiate their own challenges, so should they generally be required to state them. Clearly this requirement is met here. (3) If a charge is levied that the Board agent was not completely impartial, the burden shall be on the alleging party to prove the partiality. As is always the case, the challenging party has the burden of showing that the election was not fairly conducted, for it is not up to the Board to establish the validity of the election. NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 5 L.Ed.2d 455 (1961). The single affidavit submitted by the Company was woefully inadequate in this respect.

At no stage in the representation proceedings did the Company demand an evidentiary hearing, and the simple assertion in the observer’s affidavit that “[m]any of the seven challenges made by [the Board agent] occurred while other employees were in the voting area” did not, in our opinion, bring material and substantial facts into issue. 29 C.F.R. § 102.69(c).

The Order of the Board finding that Schwartz Brothers, Inc. engaged in unfair labor practices in violation of § 8(a)(5) and (1) of the National Labor Relations Act is accordingly supported by substantial evidence, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and entitled to enforcement.

Judgment accordingly.

      . 29 U.S.C. § 158(a) (5) (1970):
      It shall be an unfair labor practice for an employer — •
      to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title.
      29 U.S.C. § 158(a)(1) (1970) :
      It shall be an unfair labor practice for an employer—
      to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.

      . As a result of Jeato’s discharge the Union filed § 8(a)(3) and (1) charges against the Company. The charges were withdrawn when Jeato was reinstated by the Company a few days after the election.

      . The Field Manual is, the Board asserts, intended essentially for the guidance of Board personnel. The Manual states at § 10000 that it “is intended as a guide to the professional employee in the field with respect to ease handling procedures.” Later, in the same section, it further states: “Recognizing, however, that no guidelines or instructions can fully anticipate the many and varied situations encountered by professional employees in their day-to-day work, the provisions and guidelines herein must be tempered in appropriate circumstances with responsible, professional judgment.” Its provisions are not published in the Federal Register.

      . Schwartz Bros., Inc., 194 N.L.R.B. No. 13 (Nov. 15, 1971).

      . See Offutt v. Unted States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954): “Therefore, justice must satisfy the appearance of justice.”


author: PER CURIAM: ROBB, Circuit Judge,

text:
    UNITED STATES of America, v. Benjamin J. THOMPSON, Appellant.
    No. 71-1182.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 24, 1973.
    Allen M. Hutter, Washington, D. C. (appointed by this Court), was on the brief for appellant.
    Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry, Herbert B. Hoffman, and Guy H. Cunningham, III, Asst. U. S. Attys., were on the brief for appellee.
    Before BAZELON, Chief Judge, and ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

In support of his claim of ineffectiveness of counsel, appellant asserts that his trial attorney failed to interview or call at least four known witnesses who would have testified on appellant’s behalf, corroborating his version of the events leading up to his arrest. Counsel on appeal (who is not trial counsel) has presented to this court affidavits indicating that these witnesses would, indeed, have offered testimony favorable to the defense. The decision to call a witness is not, as the government asserts, one totally immune from review. The failure to investigate or call particular witnesses surely may amount to ineffectiveness of counsel in certain circumstances. The allegations of ineffectiveness cited to this court by a responsible member of the Bar are certainly serious enough to warrant judicial scrutiny. But, the affidavits are not properly before us and the record alone does not provide a satisfactory basis for considering the issue of ineffectiveness. Appellant is not relegated to his post-conviction remedies to secure a hearing on his claim. “[H]e may raise and more fully support [that] claim on a motion for a new trial without excusing that action with a showing of earlier ‘due diligence.’ ”

ROBB, Circuit Judge,

concurring:

I concur in the result. I cannot approve an attempt to retry a criminal case in this court on affidavits presented by appellate counsel.

      . Trial counsel in this case was the same lawyer who was found to have rendered ineffective assistance in Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971) and United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970).

      . Counsel on appeal has also submitted affidavits from a number of potential character witnesses whom he alleges were never contacted or interviewed. No witnesses other than the appellant were presented by the defense at trial.

      . A claim of ineffectiveness is said to require “a more powerful showing of inadequacy” to sustain a collateral attack than to warrant an order for a new trial by the District Court or on direct appeal. Bruce v. United States, 126 U.S.App.D.C. 336, 340, 379 F.2d 113, 117 (1967).

      . United States v. Smallwood, 153 U.S.App.D.C. 387, at 393, 473 F.2d 98 at 104 (1972) (Bazelon, Chief Judge, concurring); see Fed.R.Crim.P. 33; Marshall v. United States, 141 U.S.App.D.C. 1, 6 n. 11, 436 F.2d 155, 161 n. 11 (1970).


author: PER CURIAM:

text:
    Charles C. WINDSOR, Appellant, v. Marjorie Mansfield LEONARD et al.
    No. 71-1863.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 14, 1972.
    Decided Jan. 25, 1973.

      Stanley Worth, Washington, D. C., for appellant.
    Michael F. Curtin, Washington, D. C., filed a brief for appellees.
    Before BAZELON, Chief Judge, TAMM, Circuit Judge, and HARRISON WINTER, Circuit Judge for the Fourth Circuit.

       Sitting by designation pursuant to Title 28, U.S.C. § 291(a).

   PER CURIAM:

D.C.Code § 19-113 entitles a surviving husband or wife to renounce his rights under his spouse’s will and elect instead a statutory share “not to exceed one-half of the net estate bequeathed and devised by the will . . . ”. This case raises a question as to what should be included in a decedent’s “net estate” for purposes of determining the statutory share.

In May, 1969, Mrs. Virginia Windsor established a revocable trust and transferred to it assets worth some $190,000. The beneficiaries of the trust were various friends and charities. Mrs. Windsor died in December, 1970, leaving an estate valued at $110,000, exclusive of the amount in the trust. In her will, Mrs. Windsor left about 10 per cent of this estate to her husband, LCDR Charles C. Windsor, USN (ret.). LCDR Windsor has renounced his rights under the will and elected to take one-half of the “net estate”. In this action, he claims the “net estate” should include not only the $110,000 passed by Mrs. Windsor’s will but also the $190,000 constituting the trust corpus.

The District Court held that the trust assets should not be included in the “net estate”. However, the court expressed a degree of uncertainty and asked the parties to “take it upstairs and get a controlling decision.”

LCDR Windsor’s primary argument is that the revocable trust would be included in Mrs. Windsor’s estate for tax purposes. We need not pursue this point. The proper basis for deciding this case is not tax law but rather the Maryland case law on marital property rights. In enacting the D.C.Code provisions on marital rights, Congress made it clear that courts interpreting those provisions should follow precedents under the similar Maryland statute.

Maryland Court of Appeals has set forth certain “controlling rules” to be applied in determining whether or not an inter-vivos transfer is an improper circumvention of the marital rights of the surviving spouse. Obviously any transfer of property will decrease the statutory share of the spouse, but courts in Maryland and elsewhere have been hesitant to set aside such transfers if they were made in good faith. To determine whether or not a particular transaction meets this test, the “controlling rules” are applied to the facts at hand.

These rules, as set forth in Whittington v. Whittington, 205 Md. 1, 106 A.2d 72, include:

—“completeness” of the transfer;
—motive for the transfer;
—participation by the transferee in the alleged fraud on the surviving spouse;
—amount of time between the transfer and death;
—degree to which the surviving spouse is left without an interest in the decedent’s property or other means of support.

Applying these tests to Mrs. Windsor’s trust, we find no basis for holding that the trust is an improper evasion of LCDR Windsor’s statutory rights.

In creating the trust, Mrs. Windsor reserved, in addition to the power of revocation, the right to all income during her lifetime, the right to draw from principal, and the right to amend the terms of the trust. These powers, however, have not been held to render an otherwise valid transfer “incomplete” in cases such as this. There is no evidence to indicate that Mrs. Windsor or the beneficiaries of the trust had any unusual or fraudulent motive for the transaction. Mrs. Windsor created the trust at the age of fifty-four, some 18 months before she died; this is hardly the kind of “brink of death” transfer that might indicate bad faith on the part of the transferor. Finally, LCDR Windsor is left with a 50 per cent share in an estate exceeding $100,000 in addition to his personal holdings worth some $140,000.

We conclude that the assets of Mrs. Windsor’s trust were properly excluded from her “net estate” in determining her husband’s statutory share. The judgment of the District Court is accordingly

Affirmed.

      . See H.R.Rep.No.679, 87th Cong., 1st Sess., p. 3, and S.Rep.No.822, 87th Cong., 1st Sess., p. 3. These reports concerned D.C.Code § 18-211, which was recodified as § 19-113 in 1965.

      . Gianakos v. Magiros, 234 Md. 14, 21, 197 A.2d 897, 905.

      . Annot., 39 ALR 3d 17.

      . Brown v. Fidelity Trust Co., 126 Md. 175, 94 A. 523 (1915); cf. Restatement (Second), Trusts, § 57.

      . Thus this ease differs from Mushaw v. Mushaw, 183 Md. 511, 39 A.2d 465 (1944), where a 75-year-old heart attack victim created four trusts five days before his death.