author: PER CURIAM:

text:
    Bruce C. KIXMILLER, Petitioner, v. SECURITIES AND EXCHANGE COMMISSION, Respondent.
    No. 72-1285.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 2, 1973.
    Decided Jan. 30, 1974.

      Carl L. Shipley, Washington, D. C., for petitioner. John Barry Donohue, Jr., Washington, D. C., was on the brief for petitioner.
    Richard E. Nathan, Ásst. Gen. Counel, S. E. C., with whom Walter North, Acting Gen. Counsel, David Ferber, Sol., and David J. Romanski, Atty., S. E. C., were on the brief, for respondent.
    Before TAMM, ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

Petitioner seeks review in this court of advice informally given a corporation by the staff of the Securities and Exchange Commission. The advice was that the staff, for reasons stated, would not recommend action by the Commission respecting the contemplated exclusion from management’s proxy materials of a stockholder’s proposals for action at a stockholders’ meeting. The Commission has refused either to examine the staff’s view of the matter or to express a view of its own; it now asserts that we lack jurisdiction to consider the petition for review and urges dismissal. We grant the motion and dismiss the petition.

I

On November 19, 1.971, petitioner, a Class B stockholder of the Washington Post Company, informed the company’s general counsel of his intention to submit three proposals relating to general business matters for consideration at the 1972 annual meeting of stockholders. He requested that his propositions and supporting statements, which he set out in a letter to the company, be incorporated into management’s proxy materials as allegedly required by proxy rules adopted by the Commission pursuant to Section 14 of the Securities Exchange Act of 1934.

Rule 14a-8(a) of the proxy rules requires the issuer of proxy materials to include any proposals (not otherwise ex-cludable under provisions of the rules) submitted by “any security holder entitled to vote at a meeting of security holders of the issuer.” The company, following the procedure established by the rules, informed the Commission’s Division of Corporate Finance of its intent-ion to omit petitioner’s proposals from its 1972 proxy statements, and sought confirmation that the Division would not urge action by the Commission on that account. Petitioner filed memoranda and supporting materials in opposition to the request for a no-action decision.

The Division issued a letter opinion on March 8, 1972, stating that it would not recommend that the Commission take enforcement action, and expressing the ground for that decision. Petitioner then asked the Commission to reexamine the Division’s ruling; but was later informed that the Commission “declined to review the staff’s position or hold an oral hearing . . . [or] to issue an informal statement on the matter.” This petition for review followed.

II

Our authority to directly review Commission action springs solely from Section 25(a) of the Securities Exchange Act of 1934, which confines our jurisdiction to “order[s] issued by the Commission. . . . ” We think members of the Commission’s staff, like staff personnel of other agencies, “have no authority individually or collectively to make ‘orders,’ ” and that, on the contrary, “[o]nly the Commission makes orders.” Here the Commission made no order on the merits of petitioner’s claim; rather, it emphatically “declined to review the staff’s position.” It follows that what petitioner seeks to have reviewed in this court is not an “order issued by the Commission.”

Petitioner relies heavily on Medical Committee for Human Rights v. Securities and Exchange Commission, wherein we reviewed on the merits the Commission’s approval of a no-action ruling by its staff. We think, however, that very different jurisdictional consequences flow from the antithetical roles which the Commission played in Medical Committee and here. There, after the staff announced that it would not recommend action respecting a company’s omission of a stockholder’s proposal from its proxy materials, the Commission examined the staff’s no-action determination and accepted it. As our opinion in Medical Committee recounted, the Commission, “after reviewing the petitioner’s proxy claim,” “exercised its discretion to review [the] controversy,” and “approved the recommendation of the [staff] that no objection be raised. . . .” In sum, Medical Committee involved a no-action ruling by the staff which was sanctioned by the Commission, and that, we held, constituted administrative action subject to judicial review.

In sharp contrast to that decision is the Commission’s refusal here to in any way probe or pass on the staff’s no-action position. The distinction is between the Commission’s reexamination and affirmance of the staff’s conclusion on the one hand, and the Commission’s declension of any review or adjudióation on the other. We recognized the vitality of that distinction when in Medical Committee we admonished that the availability of judicial review of a staff no-action decision respecting proxy proposals “depends upon the Commission’s initial determination to review the staff decision.” That precondition is not met here.

Ill

We are mindful that administrative inaction may become judicially cognizable, and that yet another question here is whether the Commission erred in flatly refusing to deal with petitioner’s claim. But assuming, without deciding, that the refusal is otherwise encompassed by Section 25(a), we are not at liberty to override it.

The Securities Exchange Act of 1934 provides that “the Commission may, in its discretion, make such investigations as it deems necessary,” and that “it may in its discretion bring an action” in court. An agency’s decision to refrain from an investigation or an enforcement action is generally unreviewable and, as to the agency before us, the specifications of the Act leave no doubt on that score.

The Commission, by regulation, has served notice that its informal procedures are ordinarily to be matters of staff activity, and will involve the Commission only when special circumstances so warrant. We discern nothing arbitrary or abusive in this policy as applied in the case at bar. In Medical Committee “we recognize[d] that there is a legitimate domain of administrative discretion in the proxy area,” carved out by the necessity that the Commission “process a formidable number of proxy statements in limited time and with insufficient manpower.” “Obviously,” we said, “not all proxy proposals can or should be given detailed consideration by the full Commission and we hastened to add that “even the boldest advocates of judicial review recognize that the agencies’ internal management decisions and allocations of priorities are not a proper subject of inquiry by the courts.”

The Commission offers informal advice by its staff on a vast number of proxy solicitations. Sheer volume of this wholesome activity belies Commission review in every such instance. It must be remembered that a dissatisfied stockholder is free to litigate proxy-solicitation questions judicially, with or without prior administrative resort to the staff or the Commission. It is for the Commission to initially draw the line on administrative review of staff decisions in this area, and, we cannot say that its regulation has done so unreasonably. And finding no legal fault in the Commission’s discretionary exercise here, we are powerless to upset it.

Motion to dismiss granted.

      . Petitioner owned 1,000 shares of Class B stock.

      . Proposal A would have instructed the board of directors to take such action as might be necessary to amend the company’s certificate of incorporation and by-laws to provide Class B stockholders with all the rights of Class A stockholders. Proposal B would have requested the board to place a $75,000 ceiling on compensation to employees. Proposal C would have requested the board to establish a “fairness doctrine” as a guideline in the company’s newspaper publishing activities.

      . Act of June 6, 1934, § 14, 48 Stat. 895, as amended, 15 U.S.C. § 78n (1970).

      . 17 C.F.R. § 240.14a-8(a) (1973).

      . 17 C.F.R. § 240.14a-8(c) (1973) excludes certain kinds of proposals from general requirements.

      . 17 C.F.R. § 240.14a-8(d) (1973).

      . The company maintained that, as a Class B stockholder, petitioner did not have the right to vote on general business matters, but only on 30% of the directors and certain other matters. The company argued that Class B stockholders could not offer proposals on which they could not vote, and that therefore petitioner’s proposals could properly be omitted from management’s proxy materials.

      . The letter stated in part:
      It would obviously be inconsistent with [the] purpose [of preventing management’s proxy materials from being misleading] to require inclusion of a proposal in the proxy materials if the proponent could not legally present it at the meeting. Since there appears to be some basis for [the company’s position] this Division will not recommend enforcement action.

      . Letter from Neal F. McCoy, Chief Counsel, Securities and Exchange Commission, to John B. Donohue, Jr., March 28, 1972, App. at 25a. See also minutes of Commission meeting of March 23, 1972, App. at 26a.

      . 15 U.S.C. § 78y(a) (1970), quoted in relevant part infra note 11.

      . “Any person aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person is a party may obtain a review of such order in the United States Court of Appeals within any circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia, . . . ” Id.

      . International Paper Co. v. FPC, 438 F.2d 1349, 1359 (2d Cir. 1971).

      . Id. See also National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 284-285, 287, 443 F.2d 689, 699-700, 702 (1971), wherein we drew a clear line between opinions reflecting the definitive views of an agency head and the considerably less authoritative rulings by subordinate officials.

      . See text supra at note 9.

      . 139 U.S.App.D.C. 226, 432 F.2d 659 (1970), vacated as moot, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).

      . 139 U.S.App.D.C. at 232-240, 432 F.2d at 665-673.

      . Id. at 230, 432 F.2d at 663.

      . Id. at 241, 432 F.2d at 674.

      . Id. at 230, 432 F.2d at 663, quoting the communication to the parties of the Commission’s action. App. 44a-45a. Similarly, the Supreme Court noted in Medical Committee that “[t]he SEC Commissioners granted a request by the Committee that they review the [staff’s] decision and affirmed it.” 404 U.S. at 405, 92 S.Ct. at 579 (record reference omitted).

      . See note 13, supra.

      . 139 U.S.App.D.C. at 242, 432 F.2d at 675.

      . Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 397, 428 F.2d 1093, 1099 (1970), and authorities cited in note 29 thereof.

      . This question is, of course, to be distinguished from the question of substantive validity of the staff’s no-action decision.

        . “Agency action,” as defined in the Administrative Procedure Act, “includes failure to act,” 5 U.S.C. § 551(13) (1970), and the Act commands the reviewing court to “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1) (1970). But § 25(a) of the Securities Exchange Act of 1934, which sets our jurisdiction, “applies in terms only to ‘orders,’ a narrower concept than that of ‘agency action’ reviewable in district courts. . . .” Independent Brokers-Dealers Trade Ass’n v. SEC, 142 U.S.App.D.C. 384, 395, 442 F.2d 132, 143 (1971).

      . Securities Exchange Act of 1934, § 21(a), 15 U.S.C. § 78u(a) (1970).

      . Id. § 21(e), 15 U.S.C. § 78u(e) (1970).

      . Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Jacobsen v. NLRB, 120 F.2d 96, 99-100 (3d Cir. 1941); Goldberg v. Hoffman, 225 F.2d 463, 466 (7th Cir. 1955). The Administrative Procedure Act similarly exempts from judicial review “agency action . . . committed to agency discretion by law.” 5 U.S.C. § 701(a)(2) (1970). See also S.Doc.No.248, 79th Cong., 2d Sess. 275 (1946).

      . Leighton v. SEC, 95 U.S.App.D.C. 217, 218, 221 F.2d 91, 92, cert. denied, 350 U.S. 825, 76 S.Ct. 54, 100 L.Ed. 737 (1955). See also Crooker v. SEC, 161 F.2d 944, 949 (1st Cir. 1947).

      . “The informal procedures of the Commission are largely concerned with the rendering of advice and assistance by the Commission’s staff to members of the public dealing with the Commission. ... In certain instances an informal statement of the views of the Commission may be obtained. The staff, upon request, or on its motion will generally present questions to the Commission which involve matters of substantial importance and where the issues are novel or highly complex, although the granting of a request for an informal statement by the Commission is entirely within its discretion.” 17 C.F.R. § 202.1(d) (1973).

      . 139 U.S.App.D.C. at 241, 432 F.2d at 674.

      . Id. (footnote omitted). As we observed, id. n. 17, the Supreme Court, in J. I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), had also recognized this dilemma. See also note 34, infra.

      . 139 U.S.App.D.C. at 241, 432 F.2d at 674.

      . Id. (footnote omitted).

      . We are informed by the Commission that during fiscal year 1973, the staff processed 7,023 proxy statements and 141 information statements to be submitted to stockholders in lieu of proxy soliciting materials, and with respect to substantially all of these statements furnished a staff letter commenting on its apparent adequacy under the proxy rules.

      . See note 31, supra.

      . Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 13, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 382, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); J. I. Case Co. v. Borak, supra note 31, 377 U.S. at 432, 84 S.Ct. 1555, 12 L.Ed.2d 423.

      . See National Automatic Laundry & Cleaning Council v. Shultz, supra note 13, 143 U.S.App.D.C. at 287, 443 F.2d at 702.

      . See note 4, supra.

      . Compare Schilling v. Rogers, 363 U.S. 666, 670-676, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 600-602, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Peoples v. United States Dept. of Agriculture, 138 U.S.App.D.C. 291, 296-297, 427 F.2d 561, 566-567 (1970); Scanwell Laboratories v. Shaffer, 137 U.S. App.D.C. 371, 386, 424 F.2d 859, 874 (1970); Shawmut Ass’n v. SEC, 146 F.2d 791, 796-797 (1st Cir. 1945); Don D. Anderson & Co. v. SEC, 423 F.2d 813, 817 (10th Cir. 1970).


source: Caselaw Access Project

license: Public Domain

text:
    Ellis P. BLOCK et al., Appellants, v. DISTRICT OF COLUMBIA.
    No. 72-1909.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 31, 1974.

      Werner Strupp, Washington, D. C., was on the brief for appellants.
    C. Francis Murphy, Corp. Counsel, Henry E. Wixon and Richard L. Aguglia, Asst. Corp. Counsels, Washington, D. C., were on the brief for appellee. Richard G. Amato, Washington, D. C., entered an appearance for appellee.
    Before BAZELON, Chief Judge, and WRIGHT and TAMM, Circuit Judges.
   PER CURIAM:

This ease arises from a claim of excess assessment and for money had and received by the District of Columbia in the amount of $50,732.80 plus statutory interest. It presents a novel context in which to consider the scope of the authority to certify cases to the Superior Court under the District of Columbia Court Reorganization Act of 1970. Accordingly, we will set out the facts of this case at some length.

On or about April 1, 1969, appellants, joint venturers and owners of an apartment building in the District of Columbia, received a notice of final determination of deficiencies in payment of unincorporated franchise taxes for the years 1961 to 1967. On May 14, 1969, appellants paid the total amount assessed at that time — $56,328.91—under protest. The taxpayers alleged that the asserted deficiencies resulted from an erroneous computation of depreciation deductions on their real property and from a disal-lowance of deductions claimed as compensation by members of the joint venture. The complaint was filed in District Court on May 10, 1972, seeking recovery of the payment.

Appellee District of Columbia moved the court to dismiss the action on the ground of lack of subject matter jurisdiction. This motion was denied on July 7, 1972. On July 10, the District Court, sua sponte, entered an order certifying the ease to the Superior Court on the ground that it appeared to the satisfaction of the court “that this action will not justify a judgment in excess of Fifty Thousand Dollars, exclusive of interest and costs.” A motion for reconsideration of the order was denied on July 27, and this appeal followed.

Under the District of Columbia Court Reorganization Act of 1970, the Superi- or Court of the District of Columbia has “jurisdiction (regardless of the amount in controversy) of any civil action or other matter, at law or in equity, which— involves an appeal from or petition for review of any assessment of tax (or civil penalty thereon) made by the District of Columbia.” Two other statutes are also directly applicable. The first is 47 D.C.Code § 1593 (1973), which provides a six-month period within which a suit for a tax refund must be brought. The second is a separate provision of the Court Reorganization Act governing the jurisdiction of the District Court during the interim period until full reorganization was accomplished :

In addition to its jurisdiction as a United States District Court and any other jurisdiction conferred on it by law, the United States District Court for the District of Columbia has jurisdiction of the following:
(4) Any civil action (other than a matter over which the Superior Court of the District of Columbia has jurisdiction under paragraph (3) or (4) of section 11-921 (a)) begun in the court during the thirty-month period beginning on such effective date wherein the amount in controversy exceeds $50,000.

On February 1, 1971, the Court Reorganization Act became effective; by that date, the six-month period for filing an appeal pursuant to § 1593 had passed. Moreover, on the same date two other provisions of the Act established exclusive jurisdiction over challenges to District of Columbia tax assessments in the Superior Court and abolished all common law remedies for taxpayers. Prior to this time, it had been clearly established that a taxpayer who elected not to proceed under § 1593 could institute a suit at common law within three years from the date of assessment. However, as both parties concede, it could not have been the intent of Congress to deprive taxpayers such as appellants of their previously-ae-quired right to judicial redress. Forbes Pioneer Boat Line v. Everglades Drainage District, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647 (1922). In this case, where the statutory period for challenging excessive tax payment had expired before the Act putatively eliminating common law remedies became effective, the statutes may not be construed to curtail or destroy the pre-existing common law rights of appellants. Therefore, appellants’ right to maintain an action at common law for recovery from the District of Columbia must survive the reforms which became effective February 1, 1972. Assuming arguendo that appellants’ action may justify a judgment in excess of $50,000, we find that the action was filed within the transitional period established by 11 D.C.Code § 501(4) and thus may be maintained in the District Court. In the briefs filed in this Court both parties have conceded this point.

The further question remains: did the District Court err in certifying the case to the Superior Court on the ground that it would not justify a judgment in excess of $50,000? The provision of the Court' Reorganization Act which governs the certification of cases to the Superior Court during the thirty-month transition period established by the Act is 11 D.C.Code § 922(b) (1973):

In a civil action begun in the United States District Court for the District of Columbia during the thirty-month period beginning on the effective date of the District of Columbia Court Reorganization Act of 1970, the court may certify the action to the Superior Court if it appears to the satisfaction of the United States District Court at or subsequent to any pretrial hearing, but before the trial thereof, that—
(1) the action will not justify a judgment in excess of $50,000; and
(2) the action does not otherwise invoke the jurisdiction of the court.

Appellants premise their argument on the fact that no pretrial hearing of any kind was held and that the phrase “at or subsequent to any pretrial hearing” must be read literally to bar certification without a hearing.

We have previously held that the exercise of the general authority to certify cases to courts of local jurisdiction is within the sound discretion of the District Court. Thus, the standard for review of an order of certification is whether or not the trial court abused its discretion. Although the language “at or subsequent to any pretrial hearing” appears in predecessor statutes, as well as the instant provision of the Court Reorganization Act, there are no direct precedents on the scope of the phrase in this Circuit.

Appellants have cited virtually every case arguably relevant to this question in support of a mandatory construction of the language. In Gray v. Evening Star Newspaper Co., 107 U.S.App.D.C. 292, 277 F.2d 91 (1960), this Court declined to find abuse of discretion in a certification to the local court on an allegation that the trial judge improperly considered medical evidence in determining the amount in controversy in a personal injury action. In that case the Court per Burger, Circuit Judge, stated:

In deciding whether to retain or certify a ease to the Municipal Court, the District Court should act on the basis of, the data presented under the Rules by the parties prior to trial, including the pre-trial hearing.

However, the opinion itself does not specifically hold that such a hearing is necessary, nor does it even discuss whether in fact such a hearing had been held in the case. Appellant also cites Hughes v. Pennsylvania Railroad Company, 133 U.S.App.D.C. 174, 409 F.2d 460 (1969), for reference to the troubling phrase concerning pretrial hearings. However, quotation in full discloses that the phrase was not essential to the reasoning of the Court in overturning a certification made on the day set for trial in the District Court:

We are not unmindful of the statutory language permitting certification “at or subsequent to any pretrial hearing but prior to trial”; nevertheless, it seems questionable to wait until the “eleventh hour” to decide that litigants already-prepared must carry on their litigation in a new forum, and then to do so without any articulated reasons to explain the exercise of discretion.

Neither of the other eases cited by appellants is particularly helpful in the instant case. Melton v. Capital Transit Company, 102 U.S.App.D.C. 306, 253 F.2d 42 (1958), held that the trial court had not abused its discretion in certifying a personal injury case, and that plaintiff might be entitled to a jury instruction to disregard any argument that such certification indicated that the District Court had established an opinion that the verdict should not exceed the jurisdictional amount. Davis v. Peerless Insurance Co., 103 U.S.App.D.C. 125, 255 F.2d 534 (1958), held that certification, while within the broad discretion of the trial court, could not be based on an erroneous reading of the law which led the court to conclude that plaintiff could not recover the amount stated in his complaint, and therefore could not justify a judgment which would satisfy the jurisdictional requirements of the District Court.

The order of the District Court does not disclose any reasons for the certification other than the conclusion that the action would not justify a judgment in excess of $50,000 exclusive of interest and costs. The complaint itself itemizes the deficiencies assessed against appellants on a yearly basis, and avers that they were erroneous both because: 1) they failed to allow a reasonable depreciation for the property as required by 47 D.C.Code § 1557b(a) (7) as interpreted by this Court in Lenkin v. District of Columbia, 149 U.S.App.D.C. 129, 461 F.2d 1215 (1972); and 2) the assessment failed to allow a deduction for services rendered by members of the joint venture as required by 47 D.C.Code § 1557b(a)(15). Nothing in the record before the trial court tended to disprove that the deficiency assessed, or the amount actually paid by appellants in satisfaction thereof, was less than $50,000. Indeed, the contrary appears. Nor does appellee maintain that the amount in controversy is less than $50,000.

In the absence of any statement of reasons for the certification by the District Court and on the record before us, we hold that it was an abuse of discretion to certify the case to Superior Court. We do not reach the issue of whether or not a pretrial hearing of some sort is required by 11 D.C.Code § 922. However, we do emphasize the considerations tending to favor the holding of such hearing, since they would tend to provide an opportunity for both parties to develop a record on which sound appellate review could proceed, and could also provide an opportunity for the trial court to amplify its reasoning on the question. We take this opportunity to reiterate our suggestion in Davis, supra, that memoranda be filed by the trial court to aid this Court in review of such rulings.

Reversed and remanded.

      . 11 D.C.Code § 101 et seq. (1973).

      . 11 D.C.Code § 921(a)(3)(B) (1973).

      . 47 D.C.Code § 1593 provides:
      Any person aggrieved by any assessment of a deficiency in tax determined and assessed by the Assessor under the provisions of section 47-1586d and any person aggrieved by the denial of any claim for refund made under the provisions of section 47-1586), may, within six months from the date of the assessment of the deficiency or from the date of' the denial of a claim for refund, as the case may be, appeal to the Superior Court of the District of Columbia, in the same manner and to tlie same extent as set forth in sections 47-2403, 47-2404, 47-2407 to 47-2411.

      . 11 D.C.Code § 501 (1973).

      . 11 D.C.Code § 1201(1) (1973) provides:
      The Tax Division of the Superior Court shall be assigned exclusive jurisdiction of —(1) all appeals from and petitions for review of assessments of tax (and civil penalties thereon) made by the District of Columbia;

      . 11 D.C.Code § 1202 (1973) provides:
      Notwithstanding any other provision of law, the jurisdiction of the Tax Division of the Superior Court to review the validity and amount of all assessments of tax made by the District of Columbia is exclusive. Effective on and after the effective date of tiie District of Columbia Court Reorganization Act of 1970, any common-law remedy with respect to assessments of tax in the District of Columbia and any equitable action to enjoin such assessments available in a court other than the former District of Columbia Tax Court is abolished. Actions properly filed before the effective date of that Act are not affected by this section and the court in which any such action lias been filed may retain jurisdiction until its disposition.

      . See, e. g., District of Columbia v. Brady, 109 U.S.App.D.C. 324, 288 F.2d 108 (1960).

      . Gray v. Evening Star Newspaper Co., 107 U.S.App.D.C. 292, 277 F.2d 91 (1960); Davis v. Peerless Insurance Co., 103 U.S. App.D.C. 125, 255 F.2d 534 (1958); Melton v. Capital Transit Co., 102 U.S.App.D.C. 306, 253 F.2d 42 (1958).

      . See, e. g., 11 D.C.Code § 962 (1969) discussed in Hughes v. Pennsylvania Railroad Co., 133 U.S.App.D.C. 174, 409 F.2d 460 (1969).

      . 107 U.S.App.D.C. at 293, 277 F.2d at 92.

      . 133 U.S.App.D.C. at 176, 409 F.2d at 462.


text:
    UNITED STATES of America v. Joseph M. JOYNER, Appellant. UNITED STATES of America v. Calvin F. SMITH, Appellant.
    Nos. 73-1110, 73-1169.
    United States Court of Appeals, District of Columbia Circuit.
    Feb. 11, 1974.
    Rehearings Denied March 6, and March 14, 1974.

      Monica Gallagher, Sherman L. Cohn, Washington, D. C., and Warren E. Connelly, were on the brief for appellant in No. 73-1110.
    Paul M. Tschirhart, Washington, D. C., (appointed by this Court) was on the brief for appellant in No. 73-1169.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry and Garey G. Stark, Asst. U. S. Attys., were on the brief for appellee, Robert J. Higgins, Asst. U. S. Atty., entered an appearance for appellee.
    Before McGOWAN, ROBINSON and ROBB, Circuit Judges.

       Entered an appearance as student counsel pursuant to Rule 20 of the General Rules of this Court.

   PER CURIAM:

The appellants were convicted of the murder of John R. Turner. The killing occurred at Turner’s house, 4709 Sheriff Road, N.E., shortly after 8:00 A.M. on June 11, 1971. There was evidence that at that time a man entered the house, a gunshot was heard, and immediately thereafter two other men went in.

Police arrived at the house at 8:45 A. M. in response to an alarm given by Turner’s wife. They found Turner’s body lying on the floor of the front room in a pool of blood. The place had been ransacked and Turner’s desk had been pried open.

Jay Street runs parallel to Sheriff Road one block to the rear of the Turner house and can be reached by way of alleys, or paths, leading from Turner’s back door. There was evidence that at about 8:25 A.M. on June 11 a black and white Cadillac convertible, not belonging to anyone in the neighborhood, was parked in the 4600 block of Jay Street, and that about 8:30 A.M. three men got into the Cadillac and drove off.

At about'9:10 A.M. a police tracking dog named Erie, accompanied by his handler, followed a trail from the Turners’ rear door through the alleys and pathways to Jay Street and finally stopped on the sidewalk at the point where the black and white Cadillac had been parked. The Police Department’s Chief Instructor for training of police dogs, a qualified expert in the field of training and observing tracking dogs, was called as a witness. He described and explained the methods of training and the actions of dogs on a track, and expressed his opinion as to the general reliability of the Police Department’s trackers. In response to a hypothetical question he gave his interpretation of the actions of Eric on the morning of June 11.

Turner was an agent of Nationwide Money Order and Check Corporation and maintained an office in his house for the sale of Nationwide money orders. The apparent motive for his murder was robbery. An inventory after his death disclosed that ninety-three Nationwide money orders were missing.

Joyner was arrested in West Palm Beach, Florida, on June 28, after he attempted to pass one of the Nationwide money orders taken in the Turner robbery. Another Nationwide money order was found in his pocket and there was evidence that on June 23, in Washington, using as assumed name, he negotiated a third stolen Nationwide money order.

Sharon White, the woman with whom Joyner was living, testified that on the day of the killing he admitted to her that he shot Mr. Turner. On the same day he changed his appearance by shaving off his sideburns and goatee; and he made a telephone call in an effort to locate someone who had “a money order machine”. The government proved that Joyner’s palm print was on Turner’s file cabinet and two of his fingerprints were on a knife blade which apparently had been used to pry open Turner’s desk. Without mentioning other items of proof that incriminated Joyner, it is enough to say that the case against him was overwhelming.

Sharon White testified that beginning in April 1971 she knew Smith as a friend of Joyner. She saw Smith several times, usually when he came to the Joyner-White house in his black and white Cadillac convertible. On several occasions during this period she spoke with Smith over the telephone. She testified that at six o’clock on the morning of the murder she was awakened by the telephone. Answering, she recognized the voice of Smith, who asked to speak with Joyner. Miss White passed the instrument to Joyner who said: “Yes, okay. Are you on your way now?” About twenty minutes later Sharon White heard several short blasts of an automobile horn, in rapid sequence, which she recognized as a signal habitually used by Smith. Joyner then left the house.

Miss White testified further that on June 16 she was present when Joyner asked Smith “where was the rest of the money orders and Calvin told him that he wasn’t trying to get out on him, that Willie had the rest of the money orders, and so Jose [Joyner] said where was Willie, and he said he was around somewhere.” On the following morning Joyner went out and when he returned he said he had the rest of the money orders, “about three or four thousand dollars worth”.

Witnesses testified that on June 16 or 17 Smith attempted to find someone who could cash or “move” twenty to thirty Nationwide money orders, which he had in a brown paper bag in the trunk of his Cadillac. There was evidence that at least three of the money orders were Nationwide money orders similar to those taken from Turner.

When Joyner was arrested in West Palm Beach on June 28 he was accompanied by Sharon White. She was released and returned to Washington on the night of July 2. At five o’clock on the morning of July 3 she was awakened by the sound of Smith’s automobile horn. He wanted to talk. He said he had heard that she and Joyner had been arrested in Florida and he wanted to know where Joyner was and whether Sharon White had made any statement to the police. Frightened, she told Smith she had made no statement.

Smith was arrested in Washington on July 6. At the time he was in his black and white Cadillac convertible. He was carrying a loaded .38 caliber revolver.

The jury found each of the appellants guilty of felony murder (22 D.C.Code § 2401); first degree burglary (22 D.C. Code § 1801(a)); and armed robbery (22 D.C.Code § 2901).

Pursuant to what seems to be a proclivity for supererogation the government included in the indictment counts charging each appellant with carrying a pistol without a license on the day of the murder; and another count charged Smith with carrying a pistol without a license on the day of his arrest. It was stipulated that Smith’s pistol was not the one used in the homicide. All three pistol counts were dismissed before the case was sent to the jury.

On this appeal both appellants contend that the District Court’s instruction on recently stolen property improperly placed the burden on the defendants, alone, to explain satisfactorily their possession of the money orders. They point to the language approved by this court in Pendergrast v. United States, 135 U.S.App.D.C. 20, 35, 416 F.2d 776, 791, cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969):

In considering whether the defendant’s possession of the recently stolen property has been satisfactorily explained, you must bear in mind that the defendant is not required to [take the witness stand or] furnish an explanation. His possession may be satisfactorily explained by other circumstances shown by the evidence independently of any testimony by the defendant himself.

The court’s instruction, say the appellants, told the jury in effect that the burden was on the defendants themselves to testify in explanation of their possession. We think however that the charge does not suffer from this vice.

The challenged instruction began with these paragraphs:

If you find beyond a reasonable doubt that a defendant or defendants had exclusive possession of money orders stolen from Mr. John Turner recently after that property was stolen, you may infer from the unexplained or unsatisfactorily explained possession of those money orders, that the defendant or defendants are guilty of taking that property from Mr. Turner.
You must consider whether such inference is warranted by the evidence as a whole. You are not required to draw such inference, but you may do so.
The defendant’s possession of recently stolen property does not shift the burden of proof. The Government always has the burden of proving beyond a reasonable doubt every essential element of an offense. (Tr. 718).

Thereafter the court referred to the failure of a defendant to explain his possession “by satisfactory evidence” or “by any of their [his] evidence”. Previously the jury had been instructed that “Every defendant in a criminal ease has the absolute right not to testify. You must not draw any inference of guilt against the defendants because they did not testify . . . . ” (Tr. 697).

Taking the charge as a whole we think it did not focus upon the defendants alone as the source of evidence that might explain their possession of the money orders. On the contrary, we think the jury was given to understand that the explanation might have come from any evidence introduced by the defendants.

The appellant Joyner claims that the proof of Eric’s tracking from the Turners’ back door to Jay Street was inadmissible because there was no evidence that the killers of Turner had left by the back door. The argument misses the mark. The critical fact shown by the evidence was that a track led from the Turner house to the spot where the getaway Cadillac had been parked. Whether the track led from the back door or the front door had nothing to do with the admissibility of the evidence.

The testimony of the Police Department expert was competent. See United States v. Jackson, 138 U.S.App.D.C. 143, 425 F.2d 574 (1970); Goldwater v. Ginzburg, 414 F.2d 324, 343 (2d Cir. 1969), cert.0 denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695, rehearing denied, 397 U.S. 978, 90 S.Ct. 1085, 25 L.Ed.2d 274 (1970).

Smith complains that he was prejudiced by the court’s refusal to sever the count charging him with carrying a pistol on the day of his arrest. Properly joined under Rule 8(a), Fed.R. Crim.P., the count was dismissed for failure of proof before the case was submitted to the jury; and the indictment was retyped, omitting this count. (Tr. Oct. 27, 1972, p. 523). In the circumstances we think Smith was not prejudiced. We also reject his argument that the court should have granted him a severance because of the misbehavior of Joyner before the jury. United States v. Aviles, 274 F.2d 179, 193 (2d Cir.), cert. denied, Evola v. United States, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960); United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied, Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963), rehearing denied, 397 U.S. 928, 90 S.Ct. 894, 25 L.Ed.2d 108 (1970).

Appellate counsel for Smith argues that the prosecutor’s closing argument was inflammatory, prejudicial and so improper as to constitute plain error. He claims the prosecutor invoked inferences and drew conclusions not based upon the record and improperly commented on the failure of the defendants to testify. These contentions are made for the first time on appeal; none of the experienced trial counsel made any objection to the prosecutor’s argument.

Having carefully examined the transcript of the trial and the prosecutor’s closing argument we conclude that he did not exceed the bounds of legitimate advocacy. He drew fair inferences from the evidence. Contrary to the contention of appellate counsel he did not comment on the failure of the defendants to testify but merely pointed out to the jury that in their closing arguments counsel for the defendants had not challenged the testimony of government witnesses on certain critical matters.

We think it appropriate to comment specifically on the contention of Smith’s appellate counsel that the prosecutor was guilty of “suppression of evidence” at the trial. (Smith Br. p. 50).

Smith and Joyner were tried twice, the first trial having been aborted. Appellate counsel now cites evidence at the first trial that Nationwide Money Order and Check Corporation made two deliveries of money orders to Turner in May of 1971, one delivery on May 18, and the second on May 20, 200 money orders being delivered on each date. From this foundation counsel argues that at the second trial the prosecutor omitted any “reference to the May 20 delivery so as to have the jury believe that only 200 money orders were involved instead of 400.” (Smith Br. p. 49). Then, says appellate counsel, the prosecutor argued that since there were 93 missing money orders, and Smith had some 30 of them, he had one third of the proceeds from the robbery. Counsel argues that if the jury had known there were 200 other money orders “floating around” and unaccounted for Smith’s share would have been smaller and the government’s “Vis partner” theory would have been discredited.

Since according to appellate counsel the facts were fully developed at the first trial and since the same counsel represented Smith at both trials, it is difficult to understand the contention that evidence brought out at the first trial was concealed and suppressed at the second. Without attempting to solve this puzzle, however, we find that counsel’s argument is otherwise unsupported by the record. At the first trial the evidence was that on May 18, 200 money orders in Series No. 53749551-750 were delivered to Turner, and on May 20, 200 more orders in Series No. 53250101-300 were delivered. (Tr., May 16, 1972, pps. 628, 629). The testimony was that an inventory disclosed a total of 93 missing money orders. (Tr., May 15, 1972, p. 558). At the second trial the testimony was that 93 money orders were missing, 53 from Series No. 53749551-750, and 40 more “in a different series”. (Tr., Oct. 27, 1972, p. 488). Thus no money orders were left “floating around” and unaccounted for. The prosecutor’s argument was firmly grounded in the evidence and appellate counsel’s attack is unwarranted.

The judgments are

Affirmed.


text:
    UNITED STATES of America v. Joseph M. JOYNER, Appellant.
    No. 73-1421.
    United States Court of Appeals, District of Columbia Circuit.
    Feb. 11, 1974.
    Peter R. Kolker, Washington, D.C., (appointed by this court) was on the brief for appellant.
    Harold H. Titus, Jr., U.S.Atty., John A. Terry, Barry W. Levine and Harry R. Benner, Asst. U.S.Attys., were on the brief for appellee.
    Before McGOWAN, ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

This appeal is from convictions for bank robbery, armed robbery, and assault with a dangerous weapon. The Government notes that the armed robbery conviction should be vacated, United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972), and we so order. The validity of the remaining convictions turns on the question of whether probable cause existed to support a warrantless Florida arrest for suspected felony violations of Florida law.

The arrest was prompted by appellant’s negotiation in Florida of a money order involved in the incident that led to Joyner’s convictions for armed robbery, burglary, and felony murder in consolidated Nos. 73-1110. and 73-1169, - U.S.App.D.C. —, 492 F.2d 650. Since evidence relevant to both of Joyner’s cases was seized in the Florida arrest, the District Court disposed of challenges relating to both during a single suppression hearing.

Appellant maintains that the arrest was invalid under the Florida statute governing arrest for crimes allegedly committed outside the state; and that the arrest cannot be validly premised on mere suspicion of criminal conduct within the State of Florida. The Government rests on the sole ground that the arrest finds support in the probable cause to believe that appellant committed felony violations within the State of Florida, and thus does not reach the question of the Florida statute.

Three of the Florida officers involved in the arrest testified. Subsequently, the court ruled that it was satisfied “that the arrest of [appellant] by plainclothes officers of the Palm Beach Police Department was based upon probable cause and was consistent with applicable Florida law.”

While a fair reading of the transcript of the suppression hearing indicates that suspicion that appellant had committed the robbery and slaying leading to his possession of the money order was in the minds of the arresting officers, the hearing record also shows that the Florida officials believed that appellant’s possession and negotiation of the money orders in Florida also constituted violations of Florida law. See Hearing Transcript at 16, 32, 34, 35, 42. Additionally, there is some testimony, albeit contradicted, that appellant was subsequently, charged with Florida offenses. Id. at 20, 22, 38; but see id. at 59.

The record appears to support the Government’s contention that the Florida officials had probable cause to suspect violations of Florida law. The validity of the arrest is itself a question of Florida law. United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948); United States v. Morris, 445 F.2d 1233 (8th Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 322, 30 L.Ed.2d 273 (1971); Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749, cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952). Like most jurisdictions, Florida permits warrantless arrests of persons who are reasonably believed to have committed a felony. Fla.Stat.Ann. § 901.15. The dispositive issue is thus one of the existence of probable cause under Florida law.

The Florida law of probable cause is similar to that of the District of Columbia. See, e. g., Chaney v. State, 237 So.2d 281, 283 (Fla.App.1970), cert. denied, 403 U.S. 904, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971) and Chippas v. State, 180 So.2d 355, 358 (Fla.App.1965), both citing Bell v. United States, 102 U.S.App.D.C. 383, 254 F.2d 82, cert. denied, 358 U.S. 885, 79 S.Ct. 126, 3 L.Ed.2d 113 (1958). In both jurisdictions an arrest will be upheld if probable cause exists to support arrest for an offense that is not denominated as the reason for the arrest by the arresting officer. Bell, supra, 102 U.S.App.D.C. at 387, 254 F.2d at 86; Chaney, supra, 237 So.2d at 283; Chippas, supra, 180 So.2d at 357. Thus, the fact that the Florida officers relied principally on the D.C. offenses in arresting appellant and stated that fact to him at the time of arrest is not conclusive, provided this court finds that probable cause existed to support arrest of appellant for violations of Florida law. Although the Government has not cited any precisely controlling Florida authority for the existence of probable cause on these facts, Florida cases governing the permissible inferences of guilt to be derived from possession of stolen property, see, e. g., State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969); Taylor v. State, 241 So.2d 426 (Fla.App.1970), and general common sense indicate that probable cause existed to suspect that appellant had committed a number of violations of state law.

The convictions of bank robbery and assault with a dangerous weapon are affirmed, and the case is remanded with directions to vacate the conviction of armed robbery.

It is so ordered.


author: BAZELON, Chief Judge: ROBB, Circuit Judge

text:
    The BILINGUAL BICULTURAL COALITION OF MASS MEDIA, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Avco Broadcasting Corporation, Intervenor.
    No. 72-2205.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 3, 1973.
    Decided Feb. 13, 1974.

      Juan Rocha, Jr., San Antonio, Tex., for appellant. Joseph L. Gibson, Washington, D. C., was on the brief for appellant.
    Joseph Volpe, III, Counsel, Federal Communications Commission with whom John W. Pettit, Gen. Counsel and Joseph A. Marino, Associate Gen. Counsel, Federal Communications Commission, were on the brief, for appellee.
    Edgar W. Holtz and Richard S. Rodin, Washington, D. C., were on the brief for intervenor.
    Before BAZELON, Chief Judge, ROBB, Circuit Judge, and VAN PELT, United States Senior District Judge for the District of Nebraska.

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

   BAZELON, Chief Judge:

Appellants challenge the Federal Communications Commission’s renewal of a broadcast license on the ground that the station’s employment practices discriminate against Mexican-Americans. Their appeal requires us to consider once again the role of statistical evidence in establishing discrimination.

I

On April 28, 1971, the Avco Broadcasting Company filed its license renewal application for WOAI-TV, San Antonio, Texas. The central assertion of appellants’ July 1 Petition to Deny was based on statistics:

Of the Station’s eighty-five (85) employees, only 12% are Mexican-Americans. In San Antonio where the total population is 830,000 and 48% of the population is Mexican-Ameriean, the Station has failed to achieve parity in employment of Mexican-Americans. . . . The record points to the conclusion that the Station is practicing de facto segregation.

Appellants’ Petition also alleged that when the station did hire Mexican-Americans, it chose those who did not belong to community organizations, relegated them to unimportant jobs, and prevented them from effectively representing their fellow Mexican-Americans. None of appellants’ allegations were supported by affidavits.

Aveo’s Opposition to appellants’ Petition alleged that the station had not discriminated against hiring Mexican-Americans, but in fact had developed programs to insure fair treatment for all minority groups. Under one of these programs, for example, the station hired “qualifiable, but not qualified” Mexican-Americans for specific jobs and gave them job training. As to its treatment of Mexican-American employees, Avco denied that they were relegated to unimportant tasks:

Of these 13 employees, none were in the lower unskilled job categories; rather these employees occupied positions of responsibility and skill within the station’s operation. Spanish-sur-named Americans at WOAI-TV were employed in such jobs as Writer, and Investigative Reporter, Art Director, News Reporter and Photographer, Assistant Community Services Director, Stenographer, Broadcast Technician, Cameraman, and Film Clerk.

All of these allegations were supported by an affidavit from the station’s General Manager. In addition, Avco submitted affidavits from four Mexican-American employees in which they asserted that their jobs were responsible ones and they were not restricted from reporting on matters of concern to the Mexican-American community.

On November 15,1972 the F.C.C. found that appellants had not raised “substantial and material questions of fact which established a prima facie case” for denying license renewal and therefore were not entitled to a hearing under the Communications Act. The Commission then denied their Petition and granted the renewal. Appellants challenge the failure to hold a hearing.

II

Appellants present no evidence of refusals to hire individual Mexican-Americans, but rely instead on the disparity between the percentage of Mexican-Americans in the community and the percentage employed by the station. In Stone v. F.C.C. this court held that such a showing did not establish a prima fa-cie case for denying license renewal when the licensee had a policy of recruiting minority group members and placing them in responsible jobs. On petition for rehearing in Stone we noted that “statistical evidence of an extremely low rate of minority employment” could constitute a prima facie showing of discrimination, but that the statistics in that case — 7% black employment in an area 24%- black — were “within the zone of reasonableness.” The two opinions in Stone should, of course, be read together — a disparity that is reasonable in light of a recruitment policy might not be reasonable in its absence.

In the instant case, the licensee has an extensive recruitment and placement program and appellants’ statistical showing is quite similar to that in Stone. That does not, however, end the matter. This is a developing area of the law — Stone represented an initial effort, not a final codification. While we did not endorse the statistical challenge raised in Stone, we did not signal satisfaction with the status quo on employment discrimination.

The Commission is aware that statistics alone do not provide ideal evidence of discrimination. From Stone to the present case, it has insisted that groups challenging license renewals show “specific instances of discrimination or a conscious policy of exclusion.” This insistence is understandable, but unrealistic. Discrimination may be a subtle process which leaves little evidence in its wake. Yet challenging groups have limited resources and no procedural tools, since discovery is allowed only when a Petition to Deny is set for hearing. Thus where, as here, challengers rely on a disparity between minority employment and minority population they are faced with a dilemma — no hearing is allowed, yet without a hearing there is no mechanism for gathering evidence to determine the underlying reasons for the disparity.

New approaches are clearly necessary. The Commission must consider how best to provide a fair and reasonable opportunity for those challenging license renewals to seek explanations for the underemployment of minority groups. Providing challengers with the power to take depositions might be considered. Perhaps even the .Commission itself would wish to scrutinize a station’s employment practices when a disparity between employment and population comes to light. Choosing the precise method of dealing with allegations of discrimination is, of course, a matter for the Commission. We note, for example, the recent creation within the F.C.C. of an Equal Employment Office designed to play a role in this area. But if minorities are not given some means for developing the reasons for statistical disparities, hearings may have to be required based on such disparities alone, in order to provide the tools of discovery.

In the circumstances of this case we need not decide whether to remand for further proceedings in light of this opinion since, as a practical matter, a remand would serve little purpose — Av-co’s license, expires again in a few months. In the ensuing license renewal proceeding, appellants will have the opportunity to avail themselves of any new procedures the Commission may develop and to exhaust their own efforts to obtain information in support of their allegations.

Apart from the issue of employment statistics, appellants’ contentions are without merit. There is no basis for the claim that Avco must hire only Mexican-Americans who belong to certain organizations, nor is there evidence in the record contradicting Avco’s substantial showing that it treats MexicanAmeriean employees fairly. Of course, procedures developed to aid inquiry into hiring discrimination may also be used to shed light on the treatment of minority group employees.

The Commission’s Memorandum Opinion and Order is

Affirmed.

ROBB, Circuit Judge

(concurring):

I concur in the result.

In my judgment the only question here is whether the petitioners made a case before the Commission. They did' not make a case and that should be the end of the matter. It is not for us to give the Commission an advisory opinion on methods for dealing with allegations of discrimination. Furthermore, I am not willing to express any view as to the circumstances that may require a hearing in some future case. We can consider that question if and when it, is presented on a proper record.

      . See Stone v. F.C.C., 151 U.S.App.D.C. 145, 466 F.2d 316 (1972).

      . Petition to Deny at 19.

      . The Petition included several other allegations not raised in this appeal.

      . Opposition to Petition to Deny at 12.

      . Id. at 11.

      . Memorandum Opinion and Order, F.C.C. 72-1003, November 15, 1972 at 9. See also Communications Act of 1934, as amended, 47 U.S.C. § 309(d); Stone, supra, 151 U.S.App.D.C. at 150-152, 466 F.2d 316.
      The F.C.C. found appellants’ Petition procedurally defective because it was unsupported by affidavits. Nevertheless, the Commission treated the Petition as an informal objection filed pursuant to § 1.587 of its rules.

      . Id. Pursuant to Section 309(d) of the Communications Act, the Commission found that grant of the license renewal would serve the public interest.

      . 151 U.S.App.D.C. at 158, 159, 466 F.2d at 329-330 (1972).

      . 151 U.S.App.D.C. at 161, 466 F.2d at 332.

      . In addition to hiring and training “qualifia-ble” Mexican-Americans, Avco recruited through media and schools popular in the minority community and maintained systematic contact with minority group organizations. Memorandum Opinion and Order at 8.

      . Appellants’ statistics are disputed (see In-tervenor’s brief at 11), yet even assuming the figures most favorable to them — 12% Mexiean-American emjjloyment in an area 48% Mexican-American — the disparity -is similar to that in Stone.

      . Memorandum Opinion and Order at 7; cf. Stone, supra, 151 U.S.App.D.C. at 158, 159, 466 F.2d 316.

      . See Report and Order, 11 F.C.C.2d 185, 187, 11 R.R.2d 1691, 1693 (January 11, 1968) (“These procedures may be used for purposes of discovery in any case of adjudication . . . which has been designated for hearing”). See also “The F.C.C.’s New Discovery Procedures,” XXII Federal Communications Bar Journal 3 (1968).

      . Washington Post, January 15, 1974, p. B9, col. 8.

      . WOAI-TV’s license expires on August 1, 1974.

      . A hearsay allegation that Avco coerced a reporter to make certain “sworn declarations” is unsupported by an affidavit from the reporter, although he no longer works for the station in question. See Supplemental Petition to Deny at 12. Rejection of this allegation was therefore within the Commission’s discretion.


text:
    UNITED STATES of America v. Michael H. HINKLE, Appellant.
    No. 72-1989.
    United States Court of Appeals, District of Columbia Circuit.
    Feb. 4, 1974.

      Robert L. Weinberg, Washington, D. C., and John J. F. Mathews, Arlington, Va. (appointed by this Court), were on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, John T. Kotelly and Lee Cross, Asst. U. S. Attys., were on the brief for appellee.
    Before ROBB and WILKEY, Circuit Judges, and VAN PELT, United States Senior District Judge for the District of Nebraska.

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

   PER CURIAM:

The appellant Hinkle was found guilty of armed robbery and was sentenced to five to twenty years in prison for his participation in a liquor store hold-up on February 11, 1971. His accomplice Albert Johnson was arrested about a block from the scene of the robbery by police officers Sims and Fentress who were staking out the store. Hinkle escaped but Johnson told Detective DeSoto at the Robbery Squad office that Hinkle had been the other robber. DeSoto then showed Officer Sims ten black-and-white photographs, including one of Hinkle, and Officer Sims positively identified appellant as one of the robbers. Hinkle was arrested pursuant to a warrant, and ordered by a magistrate to stand in a lineup; at that lineup both Officer Sims and Officer Fentress positively identified Hinkle as the second robber.

Appellant contends that the magistrate was without authority to order him to appear in a lineup; but since appellant was in lawful custody at the time of the lineup and had been presented' before a magistrate without unnecessary delay, this case falls within our holding in United States v. Anderson, 160 U.S.App.D.C. 217, 490 F.2d 785 (decided January 4, 1974). Accordingly we hold that the lineup was not improper.

At a pretrial hearing the prosecutor sought confirmation that he could impeach appellant, if he testified, on the basis of a second-degree murder conviction. D.C.Code § 14-305. Appellant had been found guilty and had been committed for a Youth Corrections Act study under 18 U.S.C. § 5010(e), although final disposition had not yet been made. The District Court held that the order committing Hinkle for a § 5010(e) study was a “sentence” so that appellant had been “convicted” within the meaning of the impeachment statute. Appellant’s counsel stated that “in light of that ruling” Hinkle would not testify. (Tr. 53).

Appellant argues that the District Court incorrectly interpreted “conviction” when it ruled that impeachment would be permitted if Hinkle testified. Relying on Crawford v. United States, 59 App.D.C. 356, 357, 41 F.2d 979, 980 (1930), appellant submits that “conviction” means a verdict of guilty and imposition of a sentence by the court. The district judge concluded that “a 5010(e) study is a sentence.”

Commitment for a § 5010(e) study does not fall neatly into the stages ordinarily found in a criminal case, but this court has decided that commitment “constituted an imposition of sentence” where “ ‘the litigation is complete as to the fundamental matter at issue — “the right to convict the accused of the crime charged.” ’ ” United States v. Fort, 133 U.S.App.D.C. 155, 158, 409 F.2d 441, 444 (1969), citing Corey v. United States, 375 U.S. 169, 174, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963).

Albert Johnson pleaded guilty to the robbery of the liquor store. Called as a witness for the appellant at trial he testified that one Michael Brown was the other robber with him, and he said he had given Brown’s name to Detective DeSoto on the night of the robbery. In rebuttal Detective DeSoto testified that Johnson had told him Hinkle — not Brown — was the other robber. Johnson was then recalled and testified that he had spoken to DeSoto during a recess of the trial and among other things DeSoto had said, “You know, you are messing me up”. On cross examination he denied that DeSoto had told him hg, De-Soto, did not want to tell anyone Johnson had “put the finger on” Hinkle. DeSoto was then recalled and testified that he had told Johnson he had not wanted to bring out in court that Johnson had given him appellant’s name, but he had to do so since Johnson now claimed to have told him the other robber was Michael Brown. Asked if he had used the phrase “You know, you are messing me up” DeSoto said he could not recall using those exact words, but if he were given the complete thought he could tell definitely whether he had said them.

The prosecutor had previously said at the bench that he had been present during the DeSoto-Johnson conversation and DeSoto had said, “You messed me up because I didn’t want to have to say in the presence of Michael Hinkle who told me about Hinkle then”. In view of DeSoto’s rebuttal testimony appellant asked permission to call the prosecutor as a witness. When the prosecutor objected, defense counsel suggested the government stipulate that the prosecutor would testify that DeSoto said, “You know, you are messing me up”. The prosecutor objected to such a limited stipulation, since it did not give the context in which DeSoto’s words were used. Defense counsel argued that DeSoto had testified to the context of the discussion and that counsel now wanted to prove only that the words were uttered. The court ruled that the matter was extraneous and the defense could not call the prosecutor as a witness.

The District Court was well within its discretion in refusing to allow the prosecutor to be called. As demonstrated by defense counsel’s insistence on an inaccurate stipulation the testimony would have added nothing to the appellant’s case.

We also reject appellant’s untimely statutory and constitutional challenges to the alleged under-representation of jurors in the under-thirty age group. See United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145 (1973); United States v. Davis, 159 U.S.App.D.C. 55, 486 F.2d 1315 (1973).

The judgment is

Affirmed.

      . Appellant’s conviction in this case was recently affirmed by this court. United States v. Hinkle, 159 U.S.App.D.C. 334, 487 F.2d 1205 (1973).


author: J. SKELLY WRIGHT, Circuit Judge:

text:
    ASSOCIATED PRESS, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Wire Service Guild, Local 222, The Newspaper Guild, AFL-CIO-CLC, Intervenor Noel M. YANCEY, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent The Associated Press, Intervenor
    Nos. 73-1002, 73-1390
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 16, 1974.
    Decided Feb. 20, 1974.

      Stuart Rothman, Washington, D. C., for petitioner in No. 73-1002.
    Robert L. Farmer, Raleigh, N. C., for petitioner in No. 73-1390.
    Jonathan Axelrod, Atty., N. L. R. B., for respondent. John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., N. L. R. B., were on the brief for respondent. Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., also entered an appearance for respondent.
    Sidney Reitman, Newark, N. J., was on the brief for intervenor Wire Service Local 222, Newspaper Guild, AFL-CIO.
    Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and WYZANSKI, Senior District Judge.

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

   J. SKELLY WRIGHT, Circuit Judge:

In these appeals petitioners seek review of an order of the National Labor Relations Board dismissing the portions of an unfair labor practice complaint finally resolved by an arbitrator’s award and declining at this time to resolve the remaining contractual dispute pending further arbitration or amicable settlement. Since we find that the Board properly acted within its discretion, we deny the petitions for review.

I

The Wire Service Guild represents a collective bargaining unit of Associated Press employees. In the first week of 1969 collective bargaining between the Guild and AP to produce a new contract for these employees broke down, and the company informed the Guild that the old contractual agreement, which by its terms had expired December 31, 1968, would not be in effect after January 7, 1969. On January 8, 1969 the Guild commenced a strike which ceased ten days later when a tentative agreement was reached. The final contract which was signed on April 25 was made retroactive only to January 15. During the period January 8 to January 15 when there was no collectively bargained contract in effect, approximately 102 members of the Guild crossed the strike picket line and worked for AP. Not only did many of these members resign from the Guild during this contractual hiatus period; they also attempted to revoke their authorization of AP to “checkoff” Guild dues from their wages. The AP complaint dismissed by the Board arose from the Guild’s unwillingness to accept their attempted revocations as effective.

Both the old and the new contracts contained a “checkoff” article providing that upon an employee’s written request AP would deduct Guild dues from his wages and remit those dues to the Guild. This article further provided that the employee’s request would be made on a form which stated, inter alia,

that this assignment and authorization shall be continued automatically and shall be irrevocable for successive periods of one year each from the date appearing below or for the period of each succeeding applicable collective agreement between the Employer and the Guild, whichever period shall be shorter, unless written notice of its revocation is given by me to the Employer and to the Guild by registered mail not more than thirty (SO) days and not less than fifteen (15) days prior to the expiration of each period of one year, or of each applicable collective agreement between the Employer and the Guild, whichever occurs sooner.

(Emphasis added.) Most of the employees who attempted to revoke their authorizations during the hiatus-strike period had made their wage assignments on forms including the above provision. The Guild therefore asserted to AP “that effective notice to revoke checkoff must be given between and including December 2 and December 16, 1968,” and that it should be forwarded the dues for those members who attempted to revoke during the January strike.

AP refused to remit the dues, relying on the fact that no collectively bargained contract was in effect during the period when the employees attempted to revoke their dues. AP also resisted the Guild’s request to submit the dispute to arbitration under a clause in the contracts providing that “[o]n the written demand of either party there shall be submitted to arbitration * * * all disputes arising out of the application of this Agreement.” On March 31, 1970, the United States District Court for the Southern District of New York granted the Guild’s motion to compel arbitration.

Prior to the arbitration hearing, AP filed unfair labor practice charges with the NLRB against the Guild based on its demands for dues checkoffs. Although the General Counsel of the NLRB issued a consolidated complaint based on these charges, the case was not submitted to the Board until after the arbitrator’s decision.

The arbitrator found that the checkoff authorization constituted a “simple contract” between AP and the employee which stood by itself and survived termination of any collective bargaining agreement. He reasoned that whether or not a bargaining agreement between the union and the employer was in effect, an authorization could not be terminated by the employee at any time except during the period specified in the authorization for revocation. He thus found that when the new collective bargaining agreement became effective AP was again obligated to remit to the Guild the dues of those employees who did not revoke their authorizations during the time period specified.

The arbitrator concluded that this finding was not precluded by Section 302(c) (4) of the Labor Management Relations Act, 29 U.S.C. § 186(c)(4) (1970). This section permits employers to deduct money from the wages of employees in payment of union membership dues only if

the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner * * *.

The arbitrator rejected AP’s argument that this language provides employees with a statutory right to revoke authorizations at the expiration of a collective bargaining agreement irrespective of the revocatory period provided in the authorizations. He found the statute to provide simply a limitation on checkoff irrevocability which was satisfied where the authorizations provided the employees with a reasonable revocation period that commenced before expiration of the agreement.

Although the arbitrator did find some of the revocations timely, he proceeded beyond the issue of timeliness to find them ineffective. At least one of the employees had notified AP, but not the Guild, of revocation during the contractual hiatus, which happened to be between 30 and 15 days prior to the anniversary of his original authorization. Other employees whose cases were before the arbitrator had signed authorization forms which provided for revocation by the employee at any time upon “30 days notice to both the AP and the Guild.” The arbitrator held that these attempted revocations, though timely, were nevertheless ineffective because the employees had failed, as specified in their authorizations, to notify the Guild as well as AP of their revocations.

As indicated, the Board’s decision on review here was developed after the arbitrator’s decision. The Board, applying a doctrine first enunciated in Spielberg Manufacturing Co., 112 NLRB 1080 (1955), found the arbitrator’s award to dispose of the unfair labor practice charges before it insofar as the charges related to employees covered by the award. Under the Spielberg doctrine, the Board will dismiss unfair labor practice complaints where the issues raised therein have been resolved in arbitration awards which have resulted from “fair and regular” proceedings and which are “not clearly repugnant to the purposes and policies” of the National Labor Relations Act. In the instant ease, the Board exercised its discretion under this doctrine to defer to the arbitrator’s decision that the disputed checkoffs of dues from AP employees’ wages were pursuant to lawful authorizations. ■ Since the merits of the unfair labor practice charges before it turned on this contractual issue, the Board dismissed the complaint. However, inasmuch as the arbitrator did not rule on the effectiveness of the attempted revocation of one group of the employees, the Board did retain jurisdiction over the dispute

for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of the Decision herein, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act.

This limited retention of jurisdiction constituted an application of the Board’s decision in Collyer Insulated Wire, 192 NLRB 837 (1971). In Collyer the Board concluded that when it was presented with a dispute over the terms and meaning of a collective bargaining agreement and that agreement provided for processes such as arbitration for resolution of such disputes, the Board had discretion to recommend that the dispute be submitted to the privately agreed upon processes subject to review by the Board.

II'

We find application of the Spielberg and Collyer doctrines in this case to be an appropriate exercise of the Board’s discretion in implementing the National Labor Relations Act. As recently as its present term, the Supreme Court has stressed the “strong federal policy favoring arbitration of labor disputes” and noted that this policy “is firmly grounded in congressional command. Section 203(d) of the Labor-Management Relations Act, 29 U.S.C. § 173(d), states in part:

‘Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.’ ”

In the famous Steelworkers Trilogy the Court relied on this federal policy in holding that courts should order arbitration unless they can be assured that “the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” The Court has further encouraged arbitration and other “administrative techniques for the peaceful resolution of industrial disputes” by holding that arbitration clauses in collective bargaining agreements create an obligation not to strike over disputes covered by the clause.

Indeed, in holding that a dispute which may be cognizable under the National Labor Relations Act may still be submitted to arbitration, the Supreme Court noted the Board’s Spielberg doctrine and quoted approvingly from one of the Board’s earlier applications of it. Following the Court’s apparent approval of Spielberg, at least two circuits have directly upheld Board deferrals to arbitration awards; and though this court has not yet done so, we do not hesitate to join these circuits today. We think it clear that submission to grievance and arbitration proceedings of disputes which might involve unfair labor practices would be substantially discouraged if the disputants thought the Board would give de novo consideration to the issue which the arbitrator might resolve. Such discouragement would be contrary to the Supreme Court’s efforts to effectuate the congressional desire to support “administrative techniques for the peaceful resolution of industrial disputes.” The Board does not abdicate its responsibilities to implement the National Labor Relations Act by respecting peaceful resolution of disputes through voluntarily agreed upon administrative techniques as long as it is assured that those techniques are procedurally fair and that the resolution is not clearly inconsistent with or repugnant to the statute.

Petitioners here contend that the arbitrator’s award was repugnant to the statute because of his interpretation of Section 302(c)(4)’s limitation on irrevocability of dues checkoff authorizations. We do not intend, any more than did the Board, to pronounce an interpretation of Section 302(c)(4). It suffices to conclude that the arbitrator’s reasonable interpretation was not inconsistent with either the fundamental purposes or the specific provisions of the sections of the National Labor Relations Act which it is the duty of the Board to implement.

We also have no difficulty in affirming the Board’s refraining from ruling on that aspect of the dispute yet to be resolved. The Board’s deferral of consideration of the unresolved matters until the parties have had further opportunity to settle them amicably through the arbitration machinery was, as stated above, an application of a policy first enunciated in Collyer Insulated Wire, supra. The Collyer doctrine and its application in this case are supported by the same federal labor policy favoring settlement of disputes through procedures provided by collective bargaining agreements. Absent the doctrine, parties would be encouraged to circumvent grievance and arbitration procedures for which they had contracted whenever they felt they had a better chance for a favorable resolution by quickly filing an unfair practice charge before the Board. Even where, as here, neither party has attempted to invoke an arbitration clause over certain contractual disputes, the Board does not abuse its discretion by suggesting that they do so in order to resolve the disputes without governmental intervention and expenditure of Board and judicial resources. This is especially true where the disputed matters are as closely related as are the unresolved revocations here to claims already settled by arbitration.

The Board did not suggest that it would refuse to consider the unresolved revocations if the Guild and AP both steadfastly refused to submit them to arbitration. As in all Collyer-based orders, the Board stated it would entertain a motion for further consideration if the dispute was not resolved with reasonable promptness by arbitration or other peaceful means. We intimate no view as to whether the Board has discretion to refuse to consider an unfair labor practice complaint when both disputants reject employment of an arbitration clause after a Collyer order. We only note that this issue is not presented in the case before us.

Petitions for review denied.

      . In No. 73-1390 the petitioner contends that since the Guild was hostile to his position and because he was not a party to the arbitration proceedings, the arbitrator’s award is not binding on him. This contention is without merit since it is clear that AP fully and adequately defended his position at the hearing. See Ramsey v. NLRB, 7 Cir., 327 F.2d 784, 788, cert. denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052 (1964); cf. Haynes v. United States Pipe & Foundry Co., 5 Cir., 362 F.2d 414, 416-417 (1966). The other issues raised in No. 73-1390 are the same as those raised in No. 73-1002. Consequently, our disposition of those issues in that case makes separate consideration of them in No. 73-1390 unnecessary.

      . 199 NLRB No. 168, 81 LRRM 1535 (Oct. 27, 1972).

      . Our jurisdiction to review the order is provided by § 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f) (1970).

      . Joint Appendix at 127.

      . Id. at 129.

      . Id. at 128.

      . Associated Press v. Wire Service Guild, Local 222, American Newspaper Guild, S.D. N.Y., 62 CCH Lab. Cas. 18,565 (1970).

      . The parties waived an evidentiary hearing before the trial examiner and issuance of a trial examiner’s decision and recommended order. Joint Appendix at 5.

      . The arbitrator’s decision is set forth in the Joint Appendix at 171-192.

      . Some of the employees whose attempted revocations were timely did notify the Guild that they were resigning from membership. But the arbitrator held that resignation did not constitute revocation. There lias been no union security clause in any collective bargaining agreement between tbe Guild and AP so employee membership in the Guild is voluntary.

      . Spielberg Manufacturing Co., 112 NLRB 1080, 1082 (1955).

      . Joint Appendix at 19-20.

      . Collyer Insulated Wire, 192 NLRB 837, 839, 843 (1971).

      . Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 382, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

      . Id., 414 U.S. at 377, 94 S.Ct. at 636.

      . United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

      . Warrior & Gulf Navigation Co., supra note 16, 363 U.S. at 582-583, 80 S.Ct. at 1353.

      . Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 251, 90 S.Ct. 1583, 1593, 26 L.Ed.2d 199 (1970).

      . Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). This obligation is cognizable in suits brought in federal district courts pursuant to § 301(a) of the Labor-Management Relations Act, 29 U.S.C. § 185(a) (1970), not only for damages, icl., but also for in-junctive relief, Gateway Coal Co., supra note 14; Boys Markets, Inc., supra note 18.

      . Carey v. Westinghouse Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 408, 11 L.Ed.2d 320 (1964). The Court adopted the words of International Harvester Co., 138 NLRB 923, 925-926 (1962):
      There is no question that the Board is not precluded from adjudicating unfair labor practice charges even .though they might have been the subject of an arbitration proceeding and award. * * * However, it is equally well established that the Board has considerable discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor practices if to do so will serve the fundamental aims of the Act.

      . NLRB v. Auburn Rubber Co., 10 Cir., 384 F.2d 1 (1967); Ramsey v. NLRB, supra note 1, 327 F.2d 784. See also language favorable to the Spielberg policy in NLRB v. Horn & Hardart Co., 2 Cir., 439 F.2d 674 (1971); John Klann Moving & Trucking Co. v. NLRB, 6 Cir., 411 F.2d 261, 263 (1969); Office & Professional Employees Int. Union, Local 425 v. NLRB, 136 U.S.App.D.C. 12, 16, 419 F.2d 314, 318 (1969).

      . But see favorable dicta in Office & Professional Employees Int. Union, Local 425, supra note 21, 136 U.S.App.D.C. at 16, 419 F.2d at 318.

      . Boys Markets, Inc., supra note 18, 398 U.S. at 251, 90 S.Ct. at 1593.

      . We join the Second Circuit in affirming the Collyer doctrine. See Nabisco, Inc. v. NLRB, 479 F.2d 770 (1973), enforcing 198 NLRB No. 4 (1972). Though other courts have acknowledged the doctrine witli apparent approval, see, e. g., NLRB v. Int. Assn of Bridge, Struc., Ornamental & Reinforced Iron Wkrs Union, Local 378, 9 Cir., 473 F.2d 816 (1973); Lodge 1327, Int. Assn of Machinists & Aerospace Wkrs v. Fraser & Johnston Co., 9 Cir., 454 F.2d 88, 91 (1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 119 (1972); NLRB v. Thor Power Tool Co., 7 Cir., 351 F.2d 584, 587 (1965), no other circuit seems to have directly passed on Collyer.

      . Of course, administrative or judicial burdens would never provide excuse for the Board’s abdication of its responsibilities to implement the National Labor Relations Act. However, as long as the Board does not defer to arbitration awards which are either unfairly developed or inconsistent with the Act, a discretionary use of its conflict-resolving resources is well within the design of Congress. As stated in the Senate report on the 1947 amendments to the Act, the Board is to
      develop * * * a policy of entertaining under these provisions only such cases alleging violation of contract as cannot be settled by resort to the machinery established by the contract itself, voluntary arbitration, or if necessary by litigation in court. Any other course would engulf the Board with a vast number of petty cases that could best be settled by other means. In short, the intention of the committee in this regard is that cases of contract violation be entertained on a highly selective basis, when it is demonstrated to the Board that alternative methods of settling the dispute have been exhausted or are not available.
      S.Rep.No.105, 80th Cong., 1st Sess., 23, in 1 Legislative History of the Labor Management Relations Act, 1947, 429 (1948).