author: SWYGERT, Chief Judge.

text:
    Pablo VINA, Plaintiff-Appellant, v. HUB ELECTRIC COMPANY, Defendant-Appellee.
    No. 72-1599.
    United States Court of Appeals, Seventh Circuit.
    Argued April 18, 1973.
    Decided June 29, 1973.

      Allen R. Kamp, Chicago, Ill., for plaintiff-appellant.
    Rody P. Biggert, Chicago, Ill., for defendant-appellee.
    Before SWYGERT, Chief Judge, and MURRAH and BARNES, Senior Circuit Judges.

       Senior Circuit Judge Alfred P. Murrah of the Tenth Circuit is sitting by designation.

       Senior Circuit Judge Stanley N. Barnes of the Ninth Circuit is sitting by designation.

   SWYGERT, Chief Judge.

Pablo Vina appeals from the decision of the district court dismissing his complaint for want of prosecution.

Vina filed a pro se complaint on November 26, 1971, against Hub Electric Company alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The form complaint was apparently provided him by the district court clerk along with a form affidavit of indigency. In the form complaint, Vina asked that fees for bringing the suit be waived and that the district court appoint counsel to represent him. The district judge, on November 20, 1971, denied the requests for appointment of counsel and leave to proceed in forma pauperis. The following day, the clerk of the district court billed Vina for the cost of filing the complaint, and Vina paid the $15 filing fee. Although the complaint was filed and the filing fee paid, the clerk never issued summons. Rule 4(a) of the Federal Rules of Civil Procedure provides a clear mandate to the clerk to immediately issue a summons and deliver it to the marshal for service: “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it.” (emphasis added). There is no explanation in the record as to why the clerk did not follow the rule.

Vina thereafter obtained counsel through the Legal Aid Bureau who filed an amended complaint on March 27, 1972. Rule 15(a) of the Federal Rules of Civil Procedure allows for such an amended complaint to be filed without leave of court since no responsive pleading had yet been filed by Hub Electric, the defendant. Summons then issued and the amended complaint was served on April 28, 1972. Hub Electric did not file an answer, but on May 18, 1972, the last day for filing the answer, it filed a motion to dismiss for failure to obtain leave of court prior to filing the amended complaint and a motion for extension of time to answer or otherwise plead. At a hearing on May 18 on defendant’s motion, Vina’s counsel argued that he was an attorney employed by Legal Aid and that due to the number of poor persons seeing attorneys, there was a two to three month wait before a client could be interviewed by an attorney. The district judge, sua sponte, dismissed the cause for want of prosecution and treated Hub Electric’s motions as moot. It is obvious from the judge’s remarks that he considered the “case closed” as of November 30, 1971, when he denied leave to proceed on appeal in forma pauperis even though Vina later paid the filing fee. The judge also informed Vina’s counsel that he should have specifically advised the court of the filing of his appearance and requested leave to file the amended complaint (although such leave was not required by Rule 15(a)).

The question on appeal is whether the district judge abused his discretion in dismissing Vina’s case for want of prosecution. We hold that he did and accordingly reverse.

The district judge and Hub Electric both rely on Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed. 2d 734 (1962), to support the proposition that a district court may dismiss a case for want of prosecution on its own motion. That case involved the dismissal of a six year old case which had previously been assigned two fixed trial dates which had been postponed. Plaintiff’s counsel failed to attend a pretrial conference and later gave a lame excuse for his absence. The case before us is not of the same genre. The other cases cited by Hub Electric are similarly inapropos.

Hub Electric argues that Vina should have investigated and made sure that service of the summons had been obtained and that he had “familiarize [d] himself with court procedures before proceeding pro se.” Hub Electric further argues that the same standards must be applied to pro se plaintiffs as are applied to plaintiffs represented by counsel. Such a statement is highly questionable. Cf. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In its argument for requiring pro se complainants to be skilled in the law, Hub Electric ignores the thirty day time limit which Vina had to file his complaint. 42 U.S.C. § 2000e-5(e). He also ignores the fact that Vina diligently sought counsel by court appointment and later by Legal Aid. Even if the same standards were to be applied to pro se litigants as to litigants represented by counsel (which we do not hold), it would not affect this case since Vina, whether pro se or represented, cannot be held responsible for the clerk’s failure to perform his duties of issuing the summons and delivering it to the marshal.

Vina had the right to file an amended complaint without leave of court pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. There was no basis in the record to support a finding that Vina had not been diligent in prosecuting his case. Nor has there been any showing of prejudice to defendant in the delay.

The dismissal is reversed and the ease is remanded under Circuit Rule 23 to be assigned to another district judge.

      . Vina received a “right to sue” letter from the Equal Employment Opportunity Commission on November 11, 1971, notifying him that lie may institute a civil action under Title VII of the Civil Rights Act of 1964 in the district court within thirty days of receipt of the letter.

      . This was the first notice Hub Electric received of the suit.

      . Rule 21(a) of the local rules of the United States District Court for the Northern District of Illinois provides that “[c]ases which have been inactive for more than six months may be dismissed for want of prosecution.” This case does not fall under that rule since the inactivity was not six months in duration.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Boyd EWING, Jr., Defendant-Appellant.
    No. 72-3622.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1973.

      Don C. Alexander, Ronald L. Goranson, Dallas, Tex., for defendant-appellant.
    Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

Appellant William Boyd Ewing, Jr., pled guilty to two counts of aiding and abetting the interstate transportation of stolen motor vehicles in violation of 18 U.S.C.A. § 2 and § 2312. He was sentenced to four years imprisonment on count one and three years imprisonment on count two, the sentences to run consecutively. He appeals from the judgment of conviction on the ground that his plea of guilty was tainted by the prosecutor’s failure to keep a commitment not to oppose his request for a probated sentence. We vacate the judgment of the district court and remand the case for reconsideration.

Ewing initially pled not guilty to a five count indictment brought against him. At the conclusion of negotiations between his counsel and the government attorney in charge of the prosecution, Ewing changed his plea to guilty to counts one and two of the indictment. Apparently the prosecution had agreed that in exchange for a guilty plea to two counts of the indictment it would dismiss the remaining three counts and would not oppose a probated sentence. At no time has the Government ever disputed the existence of such an understanding.

At a sentencing hearing held on October 27, 1972, the Government fulfilled its promise. The remaining three counts of the indictment were dismissed upon the Government’s motion. The defendant requested probation without opposition from the Government, but the sentencing judge refused to grant probation. His judgment was based primarily upon the nature of Ewing’s crime, car theft, and by his past record.

Subsequent to the imposition of sentence Ewing filed a motion for the reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. This motion was considered by the district court at a second hearing in which the Government was represented by a different attorney from the one who had represented it at the initial sentencing hearing. During this proceeding the Government attorney, possibly unaware of any understanding with Ewing, argued strongly in opposition to his request for probation. Immediately thereafter the Government’s commitment not to oppose probation was brought to the attention of the district court. The court stated, however, that it would not be influenced by recommendations made by the Government and that, in light of the deliberate nature of defendant’s crime, probation would not be appropriate. Defendant’s motion to reduce sentence was denied.

We must determine the significance of the Government’s apparently inadvertent breach of its promise not to oppose probation. Although the promise was kept when sentence was imposed, it was not kept at the hearing to reduce the sentence. Strong guidance is provided by Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In that case the defendant agreed to enter a guilty plea in exchange for the Government’s promise not to make a sentence recommendation. At the sentencing hearing the Government inadvertently failed to keep its part of the bargain. The Supreme Court held that the Government’s failure to afford the defendant-the benefit of his bargain invalidated the guilty plea regardless of whether or not the sentencing judge was influenced by that failure. Fair administration of the criminal process and the interests of justice do not permit the prosecution to violate, whether intentionally or unintentionally, promises made in the negotiation of guilty pleas.

Our case is almost identical to Santobello except for the fact that the prosecution fulfilled its commitment at the initial sentencing hearing only to breach it at the subsequent hearing on Ewing’s Rule 35 motion for the reduction of sentence. But this distinction is of little import because both of these proceedings were integral parts of the sentencing process in this case. Surely when Ewing obtained the Government’s promise not to oppose probation in exchange for his plea of guilty, he did so in the expectation that the benefits of that promise would be available throughout the proceedings relevant to the determination of his sentence. The Government was obligated to fulfill its commitment at least until the question of Ewing’s sentence was finally resolved by the sentencing judge.

Because the Government failed to keep its part of the bargain, this case must be remanded to the district court for further consideration. Since, however, the Government breached its promise only at the hearing on the motion to reduce sentence, Ewing is not entitled to have his plea set aside but must be given the opportunity to submit the same motion to a different judge before whom the Government would be precluded from opposing probation. We do it this way “both for the judge’s sake and the appearance of justice.” Mawson v. United States, 1 Cir. 1972, 463 F.2d 29, 31. The judgment of the district court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Vacated and remanded.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. 83.32 ACRES OF LAND, etc., and Georgia Vitrified Brick and Clay Company, et al., and Unknown Owners, Defendants-Appellees.
    No. 73-1159
    Summary Calender.

    United States Court of Appeals, Fifth Circuit.
    July 2, 1973.

      R. Jackson B. Smith, Jr., U. S. Atty., Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., Jacques B. Gelin, Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
    Otis F. Askin, Augusta, Ga., for Ga. Vitrified Brick.
    Glenn B. Hester, Fred K. Harvey, Jr., Augusta, Ga., for defendants-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This is an appeal from a final judgment in condemnation awarding $360,000 to a landowner, Georgia Vitrified Brick and Clay Company, for the taking of approximately forty-four acres of land underlain by extensive deposits of phyllitic clay, an important raw material in the landowner’s manufacture of sewer pipe, tile, and related vitreous products. Aside from appellant’s numerous attacks on the trial court’s findings of fact, which we decline to disturb, only one point deserves mention. The United States argues that, in computing the award, the trial court violated our holding in Georgia Kaolin Co. v. United States, 5th Cir. 1954, 214 F.2d 284, by multiplying the number of tons of phyllite recoverable from the tract by the royalty per ton. This argument is without merit because it misconceives the manner in which the court below computed the award.

The trial court estimated that the forty-four acre tract was underlain by four million recoverable tons of phyllite. This figure is amply supported by the record, and reflects a conservative estimate of the recoverable reserves of phyllite, other estimates at trial having ranged as high as 4.9 million tons of recoverable reserves. The trial court then multiplied four million tons by nine cents a ton, to arrive at an award of $360,000. The nine cent figure was not a royalty to be paid in connection with a lease of the minerals. Rather, it represented the accepted method of calculating the value of a fee simple interest in the land itself, as opposed to the value of the minerals, and was derived by taking one-half of a reasonable royalty per ton (twenty-five cents per ton) and making further deductions for the cost of mining and transportation. This method of computing the value of the land itself had been employed in several comparable sales in the area.

Thus, the trial court did not follow the method of computing damages that we condemned in Georgia Kaolin, supra, by multiplying a per-ton royalty by the estimated reserves. Instead, the court used the same process that would have been used to calculate the “price which would be agreed upon at a voluntary sale between an owner . . . and a purchaser . . .”, a method expressly approved in Georgia Kaolin, supra, 214 F.2d at 285. Accordingly, the judgment below is affirmed.


author: WINTER, Circuit Judge:

text:
    ARNOLD’S HOFBRAU, INC. v. GEORGE HYMAN CONSTRUCTION CO., INC., Appellant, and Oliver T. Carr, Jr., et al.
    No. 71-1827.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 12, 1972.
    Decided June 7, 1973.

      Stanley J. Mareuss, Washington, D. C., with whom Vincent H. Cohen, Washington, D. C., was on the brief, for appellant.
    James A. Welch, Washington, D. C., for appellees Beuchert and Carr.
    Leonard C. Collins, Washington, D. C., with whom. James F. O’Donnell, Washington, D. C., was on the brief for appellee, Arnold’s Hofbrau, Inc.
    Before WINTER, Circuit Judge for the Fourth Circuit, and MacKINNON and ROBB, Circuit Judges.

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

   WINTER, Circuit Judge:

Plaintiff, which conducted a restaurant on leased premises at 1724 Pennsylvania Avenue, N.W., Washington, D. C. (hereafter the “Hofbrau building”), sued George Hyman Construction Company, Inc. (Hyman) and Beuchert and Carr. It sought recovery against Hyman on the theory that Hyman, who was engaged in constructing an adjacent building (hereafter the “Mills building”), negligently damaged plaintiff’s premises to the extent that plaintiff was forced to discontinue the operation of the restaurant. Recovery against Beuchert and Carr was sought on the theory that they, too, were negligent in undertaking repairs to plaintiff’s premises and in failing to fulfill their promises to plaintiff to repair the premises. The record is not clear as to Beuchert’s and Carr’s precise interest in the Hofbrau building and the Mills building, but neither disclaims liability on the technicalities of ownership. In June 1968, Beuchert and Carr became owners of the Hofbrau building; prior to then Carr was a principal of a management company which managed the Hofbrau building. Beuchert and Carr were either trustees for the owners of the Mills building with a beneficial interest of their own, or copartners in the partnership which owned it. Beuchert and Carr cross-claimed against Hyman alleging that it had agreed to indemnify them for damages of the type asserted by plaintiff.

In a jury trial, plaintiff obtained a verdict for $90,000 against all three defendants. The jury was instructed that Beuchert and Carr, as owners of the Mills building, were absolutely liable for damages caused by its construction, and only the issue of proximate cause was submitted to the jury. However, the jury, on its own motion, and with the court’s permission, also found Beuchert and Carr liable on other grounds of negligence, the consequence of which would be to reduce any judgment to which they might be entitled on their cross-claim by one-half. In effect granting judgment n. o. v. on the jury’s verdict with respect to the negligence of Beuehert and Carr, the district court set aside the jury’s finding and gave Beuehert and Carr judgment on their cross-claim for full reimbursement.

In this appeal, Hyman contends that (a) the district court erred in granting the motion for judgment n. o. v. of Beuchert and Carr and in sustaining their cross-claim for indemnity against Hyman, (b) the district court improperly instructed the jury with regard to the proper measure of damages that plaintiff should recover if liability of any defendant was found, and (c) the district court should have granted a mistrial because of persistent and repeated references throughout the trial by counsel for Beuehert and Carr to the fact that Hyman had liability insurance.

We agree that Beuehert and Carr were improperly exonerated and that the jury was improperly instructed as to how to measure damages. We do not agree that the references to Hyman’s insurance coverage were so prejudicial as to warrant a new trial as to liability. We, therefore, reverse the judgment of Beuehert and Carr on the cross-claim and direct that it be re-entered for one-half of the damages to be subsequently determined, affirm the judgment of liability against Hyman, and award a new trial on damages as to all defendants.

I.

Since Hyman makes no substantial claim that it was not negligent, aside from the assertion of prejudice in the references to its liability insurance throughout the trial, we need not detail all of the evidence adduced against it at trial. We will confine ourselves principally to the facts bearing on the liability of Beuehert and Carr.

Plaintiff operated a German specialty restaurant at the Hofbrau building. The precise term of the lease is not disclosed; but in 1961 and again in June 1967, plaintiff was advised that its lease would be terminated in June 1969, and that it would be required to vacate the premises on or before June 30,1969.

In 1965, Hyman contracted to erect the Mills building on the adjacent premises. Construction began in February 1965, and about eight months later, in October 1965, one of the plaintiff’s principals noticed that the floor in the area of the kitchen and the coffee urn was sinking. Notice was given to the management agent for the building, who concededly acted as agent for Beuehert and Carr. Individually and through their agent, Beuehert and Carr assured plaintiff that the condition would be corrected and did, in April 1966, attempt to have the condition corrected by having jacks installed in the basement under the floor. That repair work proved ineffective, however, and the floor continued to sink. In June 1967, Beuehert and Carr’s agent employed structural engineers to determine what was needed to be done to repair plaintiff’s premises. That engineer advised that the jacks which had been installed were improperly located and were, therefore, ineffective to stem the increasing subsidence. The engineer recommended other corrective action, but the recommendations were never carried out.

Throughout this period, plaintiff believed that Beuehert and Carr would have the floor repaired, but the floor nevertheless continued to sink. In November 1967, the government of the District of Columbia ordered that the restaurant be repaired or closed. Beuehert and Carr re-engaged the structural engineer who repeated his earlier recommendations. When a contractor estimated that the cost of repairs would be approximately $10,000, Beuehert and Carr concluded not to have the work done, and finally in February 1968, informed plaintiff that the repairs would not be made. Plaintiff’s restaurant operation at this location ceased on November 21, 1967; plaintiff made no attempt to relocate its business; but plaintiff continued to pay rent until March 1968, and incurred other charges.

II.

The district court instructed the jury, in effect, inter alia, that if it found that a defendant promised the plaintiff that he would make all repairs necessary to keep the premises in fit condition for the plaintiff to operate its restaurant, that the promises were made when defendant knew that plaintiff would rely on them, and that plaintiff relied on the promises to its detriment, it could conclude that that defendant was liable. After giving this instruction, the district court furnished the jury with a form of verdict which permitted it to find liability on the part of Beuchert and Carr only in their capacity as owners of the Mills building for violation of the D.C. Building Code. After the jury began its deliberations, it inquired whether it could find liability on the part of Beuchert and Carr on a general theory of negligence, and when it was advised that it could, it found against them, as well as Hyman. In fact, the jury’s verdict was returned only against Carr, but it is not contested in this appeal that the return must be interpreted to include Beuchert also. The district court set this aspect of the verdict aside because it concluded that (a) while the evidence showed that Beuchert and Carr caused jacks to be installed under the kitchen floor and that they were improperly located, there was no evidence that the jacks caused any damage to the Hofbrau building, and (b) Beuchert and Carr could not be liable for failure to repair the Hofbrau building because Hyman’s construction contract imposed that duty on him.

We disagree with the district court that there was no basis on which the jury could find liability on the part of Beuchert and Carr on general grounds of negligence. Two rules of law point to the opposite result. The first is the familiar statement that one who undertakes to act has a duty to act carefully and if he fails to do so, he may be held liable in negligence. Restatement of Torts 2d, Section 323 (1964). See President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 126, 130 F.2d 810, 813 (1942); Adkins & Ainley, Inc. v. Busada, 270 A.2d 135, 137 (D.C.Ct.App.1970). The second is the principle of promissory estoppel, i. e., that one who promises another to act but fails without excuse to do so is liable to the party who has relied upon such promises to his detriment. Restatement, Contracts § 90 (1932). See Seavey, Reliance Upon Gratuitous Promises or Other Conduct, 64 Harv.L.Rev. 913, 926 (1951): “Estoppel is a tort doctrine. The rationale of Section 90 is that justice requires the defendant to pay for harm caused by foreseeable reliance upon the performance of his promise. . . . ”

The evidence before the jury was that the agent of Beuchert and Carr repeatedly promised plaintiff that he would have the sinking floor taken care of; a contractor was hired to install jacks underneath the floor to keep it from sinking further; the jacks were installed for that purpose in April 1966, but they proved ineffective because improperly placed and the floor continued to sink; a structural engineer was employed to determine what was needed to prevent further deterioration in the condition of the floor; the engineer informed the agent that the jacks were improperly located and that certain other corrective steps were needed, but those corrective steps were never undertaken. Throughout the period there was evidence that plaintiff relied upon these defendants and their agent to correct the condition, and that throughout the period the subsidence worsened to the point that the District of Columbia government ordered plaintiff’s restaurant closed. Hence, there was both a failure to perform with reasonable care an assumed duty, and a promise of repair, upon which plaintiff relied to its detriment, which was not carried out. Unless Beuchert and Carr were insulated from liability by their contract with Hyman, a contention that we will consider next, the jury’s finding that they were liable to plaintiff, should not have been disturbed.

The district court ruled that “the contract with Hyman completely passed on to Hyman the owner’s duty to protect or repair adjacent property.” Our examination of the contract discloses as probably pertinent only Article 12, which provides, in relevant part:

The Contractor shall continuously maintain adequate protection of all his work from damage and shall protect the Owner’s property from injury or loss arising in connection with the Contract. He shall make good any such damage, injury or loss, except that as may be directly due to errors in the Contract Documents or caused by agents or employees of the Owner, or due to causes beyond the Contractor’s control and not to his fault or negligence. He shall adequately protect adjacent property as provided by law and the Contract Documents . (emphasis added).

When the district court relied upon Article 12 to exonerate Beuchert and Carr, it misconceived the scope of the Article’s protection. Beuchert and Carr were determined liable, not for Hyman’s negligence or failure to comply with the contract, but for their own negligence in making repairs and the unexeused breach of their own promises to make repairs. Article 12 may thus not be applied to insulate them from recovery because, as we have held “ . where . . . the agreement does not specifically refer to losses incurred by the indemnitee’s own negligence, the intent to cover such losses must otherwise plainly appear from the agreement. Maiatieo v. Hot Shoppes, Inc., 109 U.S. App.D.C. 310, 287 F.2d 349 (1961). ‘No particular form or words are needed but the intent to waive negligence must be clear.’ ” Moses-Ecco Company v. Roscoe-Ajax Corp., 115 U.S.App.D.C. 366, 368, 320 F.2d 685, 687 (1963) (emphasis supplied). Since the language of Article 12 does not clearly render Hyman liable for the negligence of Beuchert and Carr, nor was there persuasive evidence of such an intent, the agreement cannot be given that effect.

III.

Hyman’s complaint with respect to damages arises from the following portion of the district court’s charge:

Now, you may award such sum as will reasonably compensate Plaintiff corporation for what it lost. In computing this sum, you may take into account the fair market value of the restaurant as a going business, less the value of the physical assets retained by the Plaintiff after it closed, plus the value of any prepaid items for which the Plaintiff did not receive its anticipated benefit as a result of the premature closing.

The district court also instructed the jury that “[pjlaintiff’s personal income after the restaurant closed from non-restaurant work is not related to the value of the business loss,” that plaintiff had a duty to minimize the loss, and that damages found by the jury should be adjusted by “whatever amount, if any, you feel appropriate if on the preponderance of the evidence the jury finds the Plaintiff could have minimized or mitigated those damages.” Apparently, the district court was referring to the fact that the evidence showed that plaintiff’s principal owner was Miss Schumann, and that beginning in January 1969, she obtained employment as a private secretary at a salary of approximately $9,000 per year.

We think there was error in the first quoted portion of the charge because, framed in terms of fair market value, it permitted the jury to assume that plaintiff’s restaurant business was completely destroyed. While the restaurant, after it was ordered closed, did not in fact re-open, it retained a certain reputation and degree of good will which could have permitted the restaurant to relocate. There was expert testimony at the trial that while change of location would have had some adverse effect on the restaurant business, a specialty restaurant, such as that operated by plaintiff, could by its own reputation induce its patrons to follow it to the new location. Plaintiff’s own witness testified that given adequate notice the restaurant could have relocated in three or four months. Moreover, there was evidence that in 1961, before construction of the Mills building began, plaintiff had been advised that it would be required to vacate the premises on or before June 30, 1969, and that advice was repeated in June, 1967. It follows that an instruction having as its implied premise that the restaurant business would be discontinued was erroneous.

Plaintiff should have been allowed as damages the loss of (a) net profits, (b) those fixed expenses, including salaries, it actually paid or was liable to pay, and (c) the value of any prepaid items for which plaintiff did not receive its anticipated benefit, all for the period up to the time that it knew or should have known that defendants would not repair the premises and for the additional period thereafter that reasonably would have been required to relocate the plaintiff’s business. In no event should the aggregate period extend beyond June 30, 1969, the date on which -plaintiff had been told to vacate the premises. Since Miss Schumann was apparently the principal, if not the sole owner of plaintiff, the jury should also have been instructed that plaintiff’s losses for salary expenses should be diminished by the greater of the earnings (a) which she generated, or (b) which she might have generated from other employment beginning with the time she should have realized that the restaurant would not re-open; but only to the extent that her period of actual or imputed new employment overlapped the period for which -the jury found that plaintiff was entitled to damages.

Our conclusion with respect to the measure of damages necessitates a new trial as to damages with respect to all defendants. It is true that only Hyman has appealed; but it is untrue, as plaintiff contends, that we lack jurisdiction to award Beuchert and Carr a new trial as to damages because they did not take an appeal. “While ordinarily an appellee . . . cannot secure alteration or modification of a judgment unless he has taken his own appeal, this rule does not state a jurisdictional restriction on federal appellate courts but merely constitutes a ‘rule of practice.’ [citations].” Tug Raven v. Trexler, 419 F.2d 536, 548 (4 Cir. 1969); 9 Moore’s Federal Practice [¶¶ 204.11 [4] and [5]. It would be unconscionable for plaintiff to be entitled to claim a greater or lesser recovery for the same damage from Hyman than from Beuchert and Carr. Plaintiff has fully litigated the correctness of the amount of its recovery in Hyman’s appeal so that plaintiff has been neither helped nor hurt by the failure of Beuchert and Carr to appeal; nor do we perceive that Hyman has not asserted any argument available to Beuchert and Carr had they appealed. Being satisfied that we must require the amount of plaintiff’s recovery from Hyman to be reassessed, we are persuaded that the only just result is to require the same reassessment of the amount of plaintiff’s recovery from Beuchert and Carr.

IV.

Even though there were persistent and unnecessary references by counsel for Beuchert and Carr to the fact that Hyman carried liability insurance, several factors persuade us that this conduct did not create sufficient prejudice to warrant the award of a new trial to Hyman on the issue of liability.

This is not a case in which the fact that Hyman was insured could have failed to be brought to the knowledge of the jury. Because of the fact that Hyman was insured when plaintiff complained of the sinking of the floor and when she asserted liability against Hyman, Hyman’s insurer investigated the matter with its own investigators and employed engineers to conduct other investigations, tests and inspections. Some of these were called as witnesses in Hyman’s defense. Manifestly it was a proper question to these witnesses to inquire by whom they were employed or engaged to perform these several functions. Thus, the name of Hyman’s insurer could not have been concealed from the jury. The district court was fully cognizant of the problem and it unequivocally instructed the jury that representatives of Hyman’s insurers observed certain facts and did certain things so that the insurer’s name and those witnesses came into the case, but the fact that Hyman “had insurance with Liberty Mutual should not affect your determination as to the liability or the amount of damage, if any, in this case.” With respect to an abortive witness who had a connection with another insurance company, the jury was told to “forget his testimony. . . . We don’t really know what he had to do with the case or what his company had to do with the case.” The inquiry from the jury about the form of verdict which was given to it by the district court and the fact that it returned a verdict against Beuchert and Carr, under the circumstances, are not without significance. There was no evidence that Beuchert and Carr were insured. If the jury had been prejudiced by evidence that Hyman was insured and had returned a verdict against Hyman for that reason, it is unlikely that it would have asked whether it could return a verdict against Beuchert and Carr and would have found them liable and assessed damages against them. In the new trial as to damages which we will award, we anticipate little occasion for any legitimate reference to the fact that Hyman is insured or to the identity of its insurer.

For these reasons, we conclude that the judgment of Beuchert and Carr on the cross-claim should be reversed and re-entered for one-half of the damages to be subsequently determined. Plaintiff’s judgment of liability against Hyman should be affirmed and a new trial as to damages should'be awarded to all defendants.

Affirmed in part; reversed in part; new trial awarded as to damages.


text:
    UNITED STATES of America, v. William E. HAWKINS, Appellant. UNITED STATES of America, v. Henry H. JONES, Jr., Appellant.
    Nos. 72-1573, 72-1602.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 27, 1973.
    Decided June 11, 1973.

      Brackley Shaw, Washington, D. C. (appointed by this court), for appellant William E. Hawkins.
    John A. Shorter, Jr., Washington, D. C., with whom William A. Borders, Jr., Washington, D. C., was on the brief, for appellant Henry H. Jones, Jr.
    Kevin W. Carmody, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief, for appellee.
    Before WRIGHT and TAMM, Circuit Judges, and DAVIES, Senior District Judge.

       Of the United States District Court for the District of North Dakota, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   PER CURIAM:

The series of events culminating in the death of 15 year old Vernon L. Gulledge began at approximately 11:00 o’clock p. m., May 21, 1971, in a shopping center parking lot on Eastern Avenue, Washington, D.C. The appellants, 26 year old Henry H. Jones, Jr. and 21 year old William E. Hawkins, entered the shopping center intending to make a liquor purchase. Prior to entering the liquor store, Jones confronted six youths, all under 16 years of age, standing in the parking lot and, after brandishing a knife, ordered them to leave before he returned. The youths moved to an area in front of a bowling alley and one left to get his older cousin. When Jones returned he again confronted the youths, inquiring why they were still there. At this point the 18 year old cousin and his 21 year old friend arrived on the scene and a fight ensued. Jones and Hawkins lost and left the parking lot. The youths, intending to meet later at a restaurant, split up — three leaving in the cousin’s car and three, including the deceased, on foot.

Meanwhile the appellants met two friends with a car and related what had happened. The friends suggested looking for the youths. The four drove down Eastern Avenue to the intersection of Oglethorpe Street where they encountered Gulledge and his two friends who were identified by appellant Jones as, “Yes, that’s them.” The youths started running in various directions with Gulledge, pursued by Hawkins and Jones, fleeing toward a car parked on the street. Hawkins caught Gulledge at the rear of the car and commenced beating him. Jones then approached, holding a knife, and stabbed Gulledge four times, causing his death. When Theodore Corbett, who had been standing next to the car, tried to intervene he too was stabbed in the stomach, a wound from which he recovered.

A Grand Jury indictment was returned in which Jones and Hawkins were jointly charged in Count One with first degree murder, a violation of 22 D.C.Code § 2401. Jones alone was charged in the second count of assault with intent to kill while armed, a violation of 22 D.C.Code §§ 501, 3202.

At trial neither appellant disputed the basic facts, Jones relying upon insanity as a defense, and Hawkins asserting lack of intent to commit murder. The jury rejected both defenses, finding Jones guilty of both first degree murder and assault with intent to kill while armed; Hawkins was found guilty of second degree murder, a lesser included offense, under 22 D.C.Code § 2403.

The principal issue presented on this appeal, and which we think to be dispositive of it, is whether the prosecutor’s improper closing and rebuttal arguments were so highly prejudicial as to require reversal.

Interspersed throughout the Government’s closing and rebuttal arguments were the following:

CLOSING ARGUMENT
w •X’ *X* ‘X- -X*
“You can read the paper in the big cases and it always is there, isn’t it, Sirhan Sirhan, Jack Ruby, Ammidown, Timm and Caldwell, when they were caught red-handed in front of an audience or bevies of people, they turn to insanity because that is their only hope.”
* * * * *
“Now, oh, he is dangerous, he is a murderer. But he is not mentally ill. Sirhan Sirhan and Jack Ruby and Ammidown, they didn’t fool anybody, nor does he, has he ?”
•X- -X- -X- -X- -X- *
“. . . He is not crazy, ladies and gentlemen, or insane, you know somebody passed me in the hall a moment ago and said you’ll never get first degree murder—
“THE COURT: Wait a minute let’s don’t talk about things like that.
“MR. ROBINSON: I[t] was going to be an anology [sic], Your Honor. “THE COURT: No, you cannot make that analogy and the jury will disregard it.
“MR. ROBINSON: Mr. Robinson
[you] might think you can’t get first degree murder in the case like this, because it’s what somebody might say is ‘a Saturday night special.’ I mean, you don’t have a $50,000 suburban house that you live in like Mrs. Ammidown, you don’t have a deputy chief of the city like Heidi Ann Fletcher, a police officer got shot.
“But you see, ladies and gentlemen, this is the worst kind of murder, I mean its the worst. 15 years old, he never even knew Watusi Jones. Mrs. Ammidown at least knew Mr. Ammidown, there was friction. He never even knew the man that murdered him.”
•X -X -X -X * -X-

At the conclusion of the Government’s closing argument both defense counsel moved for a mistrial based on the Government’s comparison with the Ammidown case. This motion was denied.

REBUTTAL
•X- * -X- -X -X *
“How many policemen die a year in this country in the line of duty? How many in Washington D.C. alone? How many officer Sigmons get shot down in a bank robbery by a Mr. Timm? Do we just cover them all, these deaths, with a blanket of insanity ?
“And let them all go to a nice hospital under some kind of a charade of a defense? Or do we stand up tall and we defend those men who lost their lives in the line of duty? We stand up tall. Vernon Gulledge never accepted the responsibility of a policeman to die in the line of duty. Vernon just had the responsibility of growing up.”
“. . .He was intelligent and Napoleon was a genius and he tried to wreck all of Europe. He boiled [sic] over anybody that got in his way. Hitler was a genius in his own way. But he’s not a Hitler or a Napoleon, but he ran in gangs, gangs from which all the gangsters have gone to jail, and what I am saying, ladies and gentlemen, it is time for the final gangster to go to jail and not to a hospital.”
* -X X X X X
“You see, ladies and gentlemen, if the story that Mr. Hawkins told is true, maybe he is guilty of simple assault. I want you to look and see how fair the United States can be. We don’t say he had anything to do, Mr. Hawkins had anything to do with stabbing Mr. Corbett, do we? And so you will notice our responsibility there to try to be just by not including him in the indictment for assaulting Mr. Corbett ; isn’t that true ? He is not charged with assaulting Mr. Corbett. But he can’t lean on his non-participation in that incident to get out of the murder he assisted in committing.”
X X X X X X

Here, as in United States v. Clinton L. Phillips, the same Government attorney resorted to arguments clearly designed to arouse the passion and prejudice of the jury. When a defendant’s sole defense is insanity, a prosecutor cannot be permitted to compare that defense to other infamous crimes where that defense has been raised and rejected.

Once again, as in United States v. Clinton L. Phillips, supra, we quote from Brown v. United States, 125 U.S. App.D.C. 220, 224, 370 F.2d 242, 246 (1966):

“While such an argument is always to be condemned as ‘an appeal wholly irrelevant to any facts or issues in the case,’ Viereck v. United States, 318 U.S. 236, 247, 63 S.Ct. 561, 566, 87 L. Ed. 734 (1943), and as a dereliction of the prosecutor’s high duty to prosecute fairly, see Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), in the context of current events, raising the spectre of [heinous crimes] . . . was an especially flagrant and reprehensible appeal to passion and prejudice. Although the prosecutor ‘may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ Berger v. United States, supra, 295 U.S. at 88, 55 S.Ct. at 633; Viereck v. United States, supra, 318 U.S. at 248, 63 S.Ct. at 567.”

For the reasons set forth, the judgment of conviction of Henry H. Jones, Jr. is reversed. It necessarily follows that the judgment of conviction of William E. Hawkins must also be nullified.

Reversed.

      . Hawkins, as an aider and abettor, under 22 D.C.Code § 105, was charged as a principal.

      . .Tones was also charged in Count Three with assault with intent to kill, a violation of 22 D.C.Code § 501, and in Count Four with assault with a dangerous weapon, a violation of 22 D.C.Code § 502. These two counts were dismissed during trial on Government motion.

      . The remaining problems raised, while considered, would not warrant reversal and a discussion thereof would have no precedential value.

      . 155 U.S.App.D.C.-, 476 F.2d 538 (decided May 16, 1973) (per curiam).


author: ROBB, Circuit Judge:

text:
    UNITED STATES of America v. Jonas WHITMORE, Jr., a/k/a Roscoe R. Jackson, Appellant.
    No. 72-1530.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 9, 1973.
    Decided June 29, 1973.

      John H. Caldwell, Washington, D. C. (appointed by this Court), for appellant.
    Raymond Banoun, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief, for appellee.
    Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM J. JAME-SON, Senior United States District Judge for the District of Montana.

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

   ROBB, Circuit Judge:

The appellant and a co-defendant, one Darlene C. Wheeler, were convicted by a jury on an indictment charging them with unlawful possession with intent to distribute 10,585 milligrams of heroin, in violation of the Controlled Substances Act (21 U.S.C. § 841(a) (1972)). Both defendants appealed, but the defendant Wheeler did not prosecute her appeal.

On his appeal Whitmore contends that (1) the District Court erred in refusing to require the government to produce an informant; (2) the court erred in failing to allow the foreman of the jury to qualify or explain the verdict; (3) the Controlled Substances Act, 21 U.S.C. § 841(a) is unconstitutional; and (4) the prosecutor’s closing and rebuttal arguments to the jury were improper and prejudicial.

The appellant’s first three contentions require little discussion. The informant merely furnished information which was the basis for a search warrant obtained by the police. In the circumstances the refusal to require the informant’s appearance was not error. United States v. James, 151 U.S.App.D. C. 304, 466 F.2d 475 (1972); United States v. Skeens, 145 U.S.App.D.C. 404, 449 F.2d 1066 (1971). The attempted explanation by the foreman of the jury related only to the verdict against the defendant Wheeler; there was no question about the verdict in Whitmore’s case. Since we reverse on other grounds we do not reach the appellant’s claim that the Controlled Substances Act is unconstitutional.

We find merit in the appellant’s attack on the prosecutor’s arguments.

The appellant and Wheeler were arrested in Apartment 102 at 2505 — 12th Place, S.E. The police entered the apartment pursuant to a search warrant. The warrant was supported by the affidavit of a police officer which stated in substance that an informant had told the police that he had purchased narcotics from a man named Roseoe at Apartment 102, and that the police had thereafter sent the informant to the apartment, and waited outside while the informant purchased narcotics from Roseoe. A motion to suppress, challenging the sufficiency of the supporting affidavit, was overruled by the district judge.

The proof for the government at trial was that the police seized approximately 10,585 milligrams of heroin in Apartment 102, when the appellant and Wheeler were arrested. This amount of heroin was enough for 210 capsules. (Tr. 38). In addition, the police found strainers and measuring spoons used in the mixing of heroin, and two packages of powder which could be used for “cutting”. (Tr. 102-103). The seized heroin was found in various places in the apartment and outside the window where some of it had been thrown by the appellant.

The search warrant and supporting affidavit were not in evidence before the jury. During the trial, however, the prosecutor repeatedly referred to them and their contents. Thus the following occurred in the direct examination of Officer Spriggs by the prosecutor:

Q. By the way, Officer Spriggs, you fellows were in there for [sic] a search warrant, what were you searching for?
A. Narcotics drugs, narcotic paraphernalia.
Q. Any kind of drug in particular?
A. Well, his search warrant was—
[Defense Counsel]: I object, Your Honor.
By [Prosecutor]:
Q. Did you know what kind of drug you were looking for?
[Defense Counsel]: Objection, Your Honor.
THE COURT: Does it make any difference ?
[Prosecutor]: I think it would be interesting to the Court and jury what they were looking for, what they found.
THE COURT: Do you object?
[Defense Counsel]: Yes, Your Honor.
THE COURT: Sustained. (Tr. 59).

The prosecutor was at pains to prove that the appellant used the name “Roscoe”. (Tr. 116, 213-216). He introduced in evidence photographs of Whit-more found in the apartment, which identified Whitmore as Roscoe. (Tr. 176-179, 213, 214).

On cross examination of the appellant the prosecutor bore down heavily on the name Roseoe, the search warrant, and the supporting affidavit. His cross examination included the following:

By [Prosecutor]:
Q. Did the police tell you they were looking for a man named Roseoe when they came in that apartment ?
A. They didn’t tell me much of anything.
Q. Did they give you a copy of that search warrant?
A. No, they did not.
Q. Did you ever see the affidavit to that search warrant ?
A. Affidavit? I don’t know what affidavit is, would you explain that to me?
Q. Let me pin it down this way: did the police ever indicate to you at all that they were looking for somebody named Roseoe in that apartment ?
A. At any time that they were there or afterwards?
Q. Any time?
A. No, not the police, but in the warrant later on I seen that they were looking for Roseoe.
Q. They had reason to believe that Roseoe was selling dope, didn’t they?
A. Yes.
Q. And in fact you gave your name, didn’t you, to the police as Roseoe Jackson, but before you learned that they were looking for Roseoe, isn’t that right?
A. No, I did not.
Q. You didn’t give your name as Roscoe Jackson?
A. No, I did not.
Q. Don’t you go by the name of Roscoe Jackson?
A. I do not.
Q. You do not. All right. (Tr. 173-174) (Emphasis added).
* * -X- -x- * *
Q. Didn’t you give the police the name of Roscoe Jackson, that would be a J, wouldn’t it?
A. No, I did not.
Q. Isn’t it a fact that you backed away from the name or [sic] Roscoe since you learned the police were looking for a man named Roscoe selling dope?
A. Pardon me?
Q. Isn’t it a fact that you backed away from the name or [sic] Roscoe since you learned the police were looking for somebody named Roscoe selling dope?
A. No, that’s not true. (Tr. 179) (Emphasis added).
X X X X X X
Q. You mean they were there tuith a search warrant for Roscoe, they broke in your apartment, they say they found 23 dime bags of heroin, and you know nothing about it? (Tr. 187) (Emphasis added).

Having laid this foundation by his cross examination of Whitmore and by his proof that Whitmore was “Roscoe” the prosecutor used it as a basis for insinuation and suggestion in his closing and rebuttal arguments. Thus, he said:

They had a United States Magistrate’s search warrant looking for a man named Roscoe that was allegedly selling dope, and it was for the address where this defendant lived, at 2505 12th Place, S. E., Apartment 102.
It wasn’t an accident that they were at that apartment. They had taken the time hours before, hadn’t they, to go down to the United States Magistrate and get a search warrant. . (Tr. 218) (Emphasis added).
X -X- X X X X
Now, Mr. Jackson or Mr. Whit-more, whatever it is, did not know at that time that the police were looking for a man named Roscoe that was selling dope so when the police asked him his name, he quickly gave the name of Roscoe Jackson after all that’s the name he is using down there, isn’t that right? And that is what happened in this particular case. (Tr. 219) (Emphasis added).
* X X X- X X
They have $230, about, worth of heroin in their apartment, nobody else is there, the police have reason to believe that somebody named Roscoe is selling heroin, they come there with an affidavit saying Roscoe on it, they get there, they have to break the door in because this man certainly is not going to open that door, what do you think he is doing all this time? (Tr. 220) (Emphasis added).
x -X- X X X X
These people were cutting and mixing heroin in that apartment and the police knew about it, and they knew that Roscoe was doing it and they came down there in the middle of the night when it would be least expected and they broke into that place after they refused to open the door, and they found what they were after, didn’t they? (Tr. 223) (Emphasis added).
X X X- X X X
Now, sure we don’t have pictures, Polaroid pictures of these two defendants selling heroin, that is not the way it works, ladies and gentlemen. You know how it is on the street. People make contact, you get information, you put it together and you get a search warrant. (Tr. 239) (Emphasis added).
* x * X X *
These police officers were all consistent, ladies and gentlemen, in putting that heroin in that room and putting those pictures in that room as if they were in somebody’s home. They were looking for Roscoe, they found Roscoe. Roscoe says my name is Roseoe Jackson. (Tr. 243) (Emphasis added).
* •» * * *
Because I submit to you there was no one living there except some dude named Roscoe that was selling heroin.
THE COURT: Mr. [Prosecutor], just a little quieter, please. (Tr. 244) (Emphasis added).

The prosecutor embellished his theme by telling the jury that people like the defendants “tear up the lives of many young people, they literally wreck the lives of people in this city, don’t they? You see they sell heroin * * * these are the kind of people that are degrading this city.” (Tr. 220) (Emphasis added).

The defendants objected to the prosecutor’s arguments and moved for a mistrial, but their motions were overruled. (Tr. 225, 245).

There was no direct evidence before the jury that the appellant had sold narcotics to anyone; the only proof touching that point was the inference that might have been drawn from the evidence seized by the police in the apartment.

The prosecutor in his arguments was plainly telling the jury that the police had information and an affidavit stating that Roscoe, meaning the defendant, was selling heroin. Although they were not in evidence, he was deliberately putting that information and affidavit before the jury by suggestion and insinuation. There is no other reasonable explanation for his repeated invocation of the name Roscoe and his pointed references to the search warrant and the supporting affidavit. The name was significant only in the context of the warrant and the affidavit; that the defendant was known as Roscoe had no bearing upon the question of his guilt on the charge that he possessed narcotics. Nevertheless the prosecutor used the irrelevant name as a handle for dragging the warrant and affidavit before the jury as evidence that the defendant was “selling dope” — evidence to which the prosecutor repeatedly referred.

The prosecutor’s conduct was not an isolated, momentary aberration occurring in the heat of trial, but was a deliberate, calculated and successful effort to prejudice the defendant by references to matter that was not in evidence. Such tactics cannot be tolerated. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 134 (1935); United States v. Phillips, 155 U.S.App. D.C.-, 476 F.2d 538 (1973).

The United States Court of Appeals for the Ninth Circuit recently commented on the conduct of a prosecutor:

Some prosecutors, and the prosecutor in this case is one of them, do not have sense enough, even in a case in which the government holds all the cards, not to indulge in questionable tactics that may result in a reversal. Over the years, he has caused this Court to do a lot of unnecessary work. United States v. Ames (No. 72-3152, 9th Cir., decided May 22, 1973).

The comment is pertinent, since this is the third case in which improper argument by the same prosecutor has required us to reverse. See United States v. Phillips, supra; and United States v. Hawkins and Jones, 156 U.S.App.D.C. -, 480 F.2d 1151 (1973) (Nos. 72-1573, 72-1602, D.C. Cir., decided June 11, 1973).

The judgment is reversed.


text:
    Kenneth ADAMS et al., v. Elliot L. RICHARDSON, Individually and as Secretary of the Department of Health, Education and Welfare, et al., Appellants.
    No. 73-1273.
    United States Court of Appeals, District of Columbia Circuit. .
    Argued En Banc April 16, 1973.
    Decided June 12, 1973.

      Leonard Schaitman, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty., and Eloise E. Davies, Atty., Dept. of Justice, were on the brief, for appellants. Alexandra P. Buek, Atty., Dept. of Health, Education and Welfare, also entered an appearance for appellants.
    Elliott C. Lichtman, Washington, D. C., with whom Joseph L. Rauh, Jr., John Silard, Washington, D. C., and James M. Nabrit III, New York City, were on the brief, for appellees.
    Herbert O. Reid, Sr., and J. Clay Smith, Jr., Washington, D. C., filed a brief on behalf of the National Association For Equal Opportunity In Higher Education as amicus curiae.
    Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MaeKINNON, ROBB and WILKEY, Circuit Judges sitting en banc.

       Judge MacKinnon, Circuit Judge, did not participate in the decision of this case.

   PER CURIAM:

This action was brought to secure declaratory and injunctive relief against the Secretary of Health, Education, and Welfare, and the Director of HEW’s Office of Civil Rights. Appellees, certain black students, citizens, and taxpayers, allege in their complaint that appellants have been derelict in their duty to enforce Title VI of the Civil Rights Act of 1964 because they have not taken appropriate action to end segregation in public educational institutions receiving federal funds. The matter was before the District Court on cross motions for summary judgment, on an extensive record consisting of depositions and documentary evidence.

The District Court found appellants’ performance to fall below that required of them under Title VI, and ordered Cthem to (1) institute compliance procedures against ten state-operated systems of higher education, (2) commence en,forcement proceedings against seventy-four secondary and primary school districts found either to have reneged on previously approved desegregation plans or to be otherwise out of compliance with Title VI, (3) commence enforcement proceedings against forty-two districts previously deemed by HEW to be in presumptive violation of the Supreme Court’s ruling in Swann v. CharlotteMecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), (4) demand of eighty-five other secondary and primary districts an explanation of racial disproportion in apparent violation of Swann, (5) implement an enforcement program to secure Title VI compliance with respect to vocational and special schools, (6) monitor all school districts under court desegregation orders to the extent that HEW resources permit, and (7) make periodic reports to appellees on their activities in each of the above .areas.

We modify the injunction concerning higher education and affirm the remainder of the order.

I

Appellants insist that the enforcement of Title VI is committed to agency discretion, and that review of such action is therefore not within the jurisdiction of the courts. But the agency discretion exception to the general rule that agency action is reviewable under the Administrative Procedure Act, 5 U.S.C. §§ 701-02, is a narrow one, and is only “applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ S.Rep.No. 752, 79th Cong., 1st Sess., 26 (1945).” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). The terms of Title VI are not so broad as to preclude judicial review. A substantial and authoritative body of case law provides the criteria by which noncompliance can be determined, and the statute indicates with precision the measures available to enforce the Act.

Appellants rely almost entirely on cases in which courts have declined to disturb the exercise of prosecutorial discretion by the Attorney General or by United States Attorneys. Georgia v. Mitchell, 146 U.S.App.D.C. 270, 450 F.2d 1317 (1971); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (1965); Moses v. Katzenbach, 342 F.2d 931 (D.C.Cir. 1965). Those cases do not support a claim to absolute discretion and are, in any event, distinguishable from the case at bar. Title VI not only requires the agency to enforce the Act, but also sets forth specific enforcement procedures. The absence of similar specific legislation requiring particular action by the. Attorney General was one factor upon which this court relied in Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234, 235 (1965), to uphold the exercise of discretion in that case.

More significantly, this suit is not brought to challenge HEW’s decisions with regard to a few school districts in the course of a generally effective enforcement program. To the contrary, appellants allege that HEW has consciously and expressly adopted a general policy which is in effect an abdication of its statutory duty. We are asked to interpret the statute and determine whether HEW has correctly construed its enforcement obligations.

A final important factor distinguishing this case from the prosecutorial discretion cases cited by HEW is the nature of the relationship between the agency and the institutions in question. HEW is actively supplying segregated institutions with federal funds, contrary to the expressed purposes of Congress. It is one thing to say the Justice Department lacks the resources necessary to locate and prosecute every civil rights violator; it is quite another to say HEW may affirmatively continue to channel federal funds to defaulting schools. The anomaly of this latter assertion fully supports the conclusion that Congress’s clear statement of an affirmative enforcement duty should not be discounted.

Appellants attempt to avoid the force of this argument by saying that, although enforcement is required, the means of enforcement is a matter of absolute agency discretion, and that they have chosen to seek voluntary compliance in most cases. This position is untenable in light of the plain language of the statute:

Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity ... is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability .... Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement ... or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. . 42 U.S.C. § 2000d-l.

The Act sets forth two alterna tive courses of action by which enforcement may be effected. In order to avoid unnecessary invocation of formal enforcement procedures, it includes the proviso that the institution must first be notified and given a chance to comply voluntarily. Although the Act does not-provide a specific limit to the time peri-; od within which voluntary compliance; may be sought, it is clear that a request.' for voluntary compliance, if not followed-by responsive action on the part of the; institution within a reasonable time, does not relieve the agency of tHe~re-; sporisibility to enforce Title VI by onei of the two alternative means contemplat-,-' ed by the statute. A consistent failure to do so is a dereliction of duty reviewable in the courts.

II

Although both parties were content to have this case disposed of in the District Court on cross motions for summary judgment, appellants now contend" that the case was not one properly to be resolved in that posture. In the District Court, HEW, although denying the contention that it had disregarded its statutory duties, made no claim or showing of disputed material facts relevant to that issue and requiring resolution by trial. Instead, it argued that agency enforcement of Title VI is completely discre^ tionary, and it presses that contention here. That is a legal question involving statutory construction which can be resolved on the record before us. It is true that data concerning the present status of the various school systems is constantly changing, and the record may not identify accurately systems which are currently in compliance. For exam-pie, the District Court found, on the basis of the record before it, that seventy-four districts had reneged on previously approved desegregation plans or were otherwise out of compliance. HEW now contends that thirty-nine of these districts were so classified only because of agency error, and that fourteen others are, for various reasons, no longer properly included in that group.

We believe that problems of that nature can be resolved without trial. The District Court went out of its way to note on the first page of its order that it was to be read and interpreted with the staleness of the record in mind. This suggests that, if HEW can demonstrate to the District Court that certain districts are presently in compliance, either interpretation or modification of the order can prevent unnecessary enforcement proceedings. Insofar as the order involves districts as to which HEW lacks sufficient information to determine their current status, an initial purpose of the enforcement proceeding is to obtain that information. Since there was reason in the past to believe that each of these systems was not in compliance with the law, it is not unduly burdensome to require that they now participate in a hearing to determine their present status.

The injunction does not direct he termination of any funds, nor can any funds be terminated prior to a determination of noncomplianee. In this suit against the agency, in contrast to actions brought against individual school systems, our purpose, and the purpose of the District Court order as we understand it, is not to resolve particular questions of compliance or noncompliance. It is, rather, to assure that the agency properly construes its statutory obligations, and that the policies it adopts and implements are consistent with those duties and not a negation of them.

III

With this broad purpose in mind, we turn to the substance of the order. We have examined the record in relation to the findings of fact made by the District Court, and can only conclude that they are unassailable. Rule 52(a), Fed.R.Civ.P. Accordingly, with the exception of the higher education problem discussed below, the order must be, and is, affirmed.

In the field of higher education, the District Court found that between January, 1969, and' February, 1970, HEW concluded that ten states were operating segregated systems of higher education in violation of Title VI. HEW then directed each state to submit a desegregation plan within 120 days. Five ignored the request, and five submitted unacceptable plans, as to which HEW has not made any formal comments in the intervening years. Nevertheless, HEW has neither instituted any enforcement proceedings itself nor referred any of the cases to the Department of Justice. '-Although noting HEW’s representations that negotiations with the 10 states are still pending, on the basis of these findings the district judge required institution of compliance proceedings within 120; days.

We agree with the District Court’s conclusion that HEW may not neglect this area of its responsibility. However, we are also mindful that desegregation problems in colleges and universities differ widely from those in elementary and secondary schools, and that HEW admittedly lacks experience in dealing with them. It has not yet formulated guidelines for desegregating state-wide systems of higher learning", nor has it commented formally upon the desegregation plans of the five states which have submitted them. As regrettable as these revelations are, the stark truth of the matter is that HEW must carefully assess the significance of a variety of new factors as it moves into an unaccustomed area. None of these factors justifies a failure to comply with a Congressional mandate; they may, however, warrant a more deliberate opportunity to identify and accommodate them.

The problem of integrating higher education must be dealt with on a statewide rather than a school-by-school basis. Perhaps the most serious problem in this area is the lack of state-wide planning to provide more and better trained minority group doctors, lawyers, engineers and other professionals. A predicate for minority access to quality post-graduate programs is a viable, coordinated state-wide higher education policy that takes into account the special problems of minority students and of Black colleges. As amicus points out, these Black institutions currently fulfill a crucial need and will continue to play an important role in Black higher education.

' Since some years have elapsed since the initial call was made by HEW for the submission of state higher education plans, we think such a cycle may best be begun by requiring HEW to call upon the states in question — those that have submitted plans earlier as well as those who have not — to submit plans within 120 days, and thereafter to be in active communication with those states whose plans are not acceptable. If an acceptable plan has not been arrived at within an additional period of 180 days, HEW must initiate compliance procedures. As judges well know, the setting down of a case for hearing does not automatically terminate voluntary negotiations nor eliminate the possibility of agreement. The need to prepare for actual hearing frequently causes litigants to focus on their weaknesses as well as their desires.

Some additional comment is desirable with respect to school districts under a court order to desegregate. The District Court, in giving injunctive relief in this context, noted that (1) Congress has by statute declared that compliance by a school district with a court order to desegregate is to be deemed compliance with Title VI, (2) HEW has no obligation to effectuate Title VI until the court issuing such order has made a finding of non-compliance, and (3) the responsibility for compliance rests upon the court. The District Court also declared, however, that HEW has a role to play in that process; and it directed appellants, “to the extent that their resources permit,” to monitor court-order districts and to bring their findings to the attention of the court concerned.

Although appellants urge in their brief to this court that “it is difficult to find any legal basis for the imposition upon HEW of a monitoring duty in court-order districts,” this injunctive order appears to have been responsive to testimony in the record on behalf of HEW itself. That testimony was that HEW recognized its right and authority, as the responsible disbursing agent of federal funds subject to the standards of compliance in districts under court order ; that it was handicapped in this respect by inadequate personnel resources, having only some 38 or 40 inspectors which it thought could be more efficiently used in monitoring compliance with voluntary plans filed with HEW; and that, despite these limitations, whenever a court requested it to monitor compliance with an order issued by that court, it made a special effort to respond and had done so on a number of occasions.

We do not understand the District Court’s order to require close surveillance by HEW of all court-order districts, nor that HEW shall be accountable for more than the resources available to it from time to time permit in the good-faith performance of its general obligation not to allow federal funds to be supportive of illegal discrimination. Presumably that good faith would call for a special effort in those instances where significant non-compliance is brought to its attention. So viewed, we do not find this aspect of the District Court’s injunction to be unwarranted.

The injunction issued by the District Court relating to state-operated systems of higher education is modified as set forth above. In all other respects, the judgment appealed from is

Affirmed.

      . Section 601 of the statute (42 U.S.C. § 2000d) provides as follows:
      No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or bo subjected to discrimination under any program or activity receiving Federal financial assistance.
      Section 602 authorizes and directs each federal agency empowered to expand federal funds for aid to education to effectuate the commands of Section 601 by appropriate regulations. Compliance may be effected by cutting off the flow of federal funds after opportunity for hearing has been afforded to the offending party, or by any other means authorized by law. The imposition of these sanctions are to be preceded in every case by voluntary efforts to effect compliance; and prior notice is to be given to the Congress in each case where the agency proposes to terminate funds.
      By regulation issued under the foregoing statutory authority, 45 C.F.B.. 80.8 (1972), the procedure for effecting compliance is described as fund termination or “any other means authorized by law.” The regulation goes on to say that such other means may include a reference to the Department of Justice with a recommendation that appropriate proceedings be brought by it. We are not asked to decide on this appeal whether reference of cases to the Justice Department will in all cases completely satisfy HEW’s obligations under the statute.

      . The District Court issued a Memorandum Opinion which embodied extensive findings of fact and conclusions of law. After amending the Opinion in one respect, the court thereafter entered a Declaratory Judgment and Injunction Order which largely restated its earlier findings and conclusions in relation to the relief granted. 356 F.Supp. 92 (1973).

      . The District Court found that HEW lacks authority to recapture funds already disbursed to institutions not in compliance or to terminate previously authorized funds during pendency of enforcement proceedings. This issue has not been pursued on appeal.

      . HEW's decision to rely primarily upon voluntary compliance is particularly significant in view of the admitted effectiveness of fund termination proceedings in tlie past to achieve the Congressional objective.

      . Far from dictating the final result with regard to any of these districts, the order merely requires initiation of a process which, excepting contemptuous conduct, will then pass beyond the District Court’s continuing control and supervision. The school districts must be notified of the purpose to terminate and be given a hearing. 45 C.F.R. § 80.8(c). At the hearing conducted by a hearing examiner, the district enjoys the usual protections of an adjudicatory proceeding, including the right to counsel, the right to introduce all relevant evidence, and the right to cross-examine witnesses. The examiner’s decision can be appealed to a reviewing authority, then to the Secretary, and finally to the courts. 45 C.F.R. §§ 80.-10, 80.11; 42 U.S.C. § 2000d-2. 28 U.S.C. § 1391 gives the school districts and states" petitioning for such judicial review a choice of venue, including the judicial district in which the plaintiff resides.

      . This action is consistent with the nature of judicial review exercised in other situations. See Burlington Truck Lines v. United States, 371 U.S. 156, 165-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ; Board of Public Instruction of Taylor County v. Finch, 414 F.2d 1068, 1073-1075 (5th Cir. 1969) ; Elgin Joliet & Eastern R.R. Co. v. Benj. Harris & Co., 245 F.Supp. 467, 472 (N.D.Ill.1965).

      . HEW also challenges the District Court’s statement that appellees may claim attorney’s fees under Section 718 of Public Law 92-318, 20 U.S.C. § 1617. No fees have yet been awarded, nor does it appear that this question arose in the trial court in such way as to have resulted in an adversary presentation. It is appropriate to be left for meaningful resolution in the first instance by the District. Court if and when fee applications are made to it.

      . Louisiana, Mississippi,. Oklahoma, North Carolina, Florida, Arkansas, Pennsylvania, Georgia, Maryland and Virginia are the states in question.

      . See 45 C.F.R. § 80.6(a) (1972) ; Alabama NAACP State Conference of Branches v. Wallace, 269 F.Supp. 346, 351-352 (M.D.Ala.1967).

      . It is important to note that we are not here discussing discriminatory admissions policies of individual institutions. To the extent that such practices are discovered, immediate corrective action is required, but we do not understand HEW to dispute that point. This controversy concerns the more complex problem of system-wide racial imbalance.

      . The brief is that filed by the National Association for Equal Opportunity in Higher Education, a voluntary association of the presidents of 110 predominantly Negro colleges and universities, both state-supported and private.

      . See Lee v. Macon County Board of Education, 270 P.Supp. 859, 866 (M.D.Ala., 1967). There a three-judge court enjoined HEW from cutting off federal funds from a district which the court had not as yet found to be in violation of a court-ordered plan. The court asserted that the proper course of action was for HEW to exercise its right to inquire into the state of compliance with the court’s order, to bring any evidence of non-compliance found by it to the attention of the court, and to withhold suspension of federal funds until the court gave its approval.