author: EUGENE A. WRIGHT, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bernard James SEE et al., Defendants-Appellants.
    Nos. 73-3627, 74-1036 and 74-1056.
    United States Court of Appeals, Ninth Circuit.
    Oct. 4, 1974.
    As Modified on Denial of Rehearing Dec. 9, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1428.

      Robert Michael Zweig, San Francisco, Cal. (argued in 73-3627), William L. Osterhoudt, San Francisco, Cal. (argued in 74-1036), Oscar B. Goodman (appeared in 74-1056), of Goodman, Snyder & Gang, Las Vegas, Nev., for appellants.
    James Brannigan, Atty. (argued), Dept, of Justice, San Diego, Cal., for appellees.

      Before KOELSCH and WRIGHT, Circuit Judges, and PALMIERI, District Judge.

       United States District Judge for the Southern District of New York, sitting by designation.

   EUGENE A. WRIGHT, Circuit Judge:

The appellants were convicted of a single count charge of conspiracy to import, distribute and possess marijuana [21 U.S.C. §§ 846 and 963]. On this appeal, they argue that they were twice placed in jeopardy for the same offense, that there was illegal electronic surveillance not explained by the government, and that evidence seized illegally should have been suppressed. Appellant Lillak also asserts that there was insufficient evidence to support the verdict as to him. All appellants ask that we review the sentences imposed.

This smuggling effort involved the use of a small privately owned airplane, flown from Mexico to a desolate area in southern Nevada and there burned intentionally. Lillak had landed the plane at Chula Vista, California early in September 1971 and left orders for it to be, serviced so that he might depart the next morning. He left his motel on the following morning and the airplane departed. It crash landed five days later on a dry lake in Nevada, while carrying a full load of marijuana, and was destroyed by fire intentionally set.

The wreckage was discovered by a rancher at 8:30 that morning, and reported to county officials. The sheriff and his deputies proceeded to the scene, identified the aircraft from its numbers and observed marks left by truck tires and fuel drums on the hard surface of the dry lake. At noon, they saw in the distance the dust from two vehicles coming toward the crash site. The officers stopped two pickup trucks three and one-half miles from the wreckage, one driven by appellant See and containing three fuel drums and a gasoline transfer pump. The appellant Gordon was the driver of the other truck, its bed enclosed by a camper shell. Both drivers were armed with hand guns.

An inquiry produced the answer from See that the party was going to a ranch but the officers noted that it was 50 miles in the opposite direction. See replied that they were just seeing where the dirt road might lead them, then asked if the pilot was hurt. The officers had not mentioned an airplane and the wreckage was not visible from the point where the defendants were stopped. See and Gordon were allowed to proceed after a routine check had been made. The trucks were not searched.

Federal agents arrived an hour later. Agent Meglen, having information that linked See, Gordon and the burned airplane with a drug smuggling group, called the sheriff in an adjoining county to stop and search the trucks. In mid-afternoon, deputies apprehended See and Gordon at a gasoline service station in the next county, 180 miles from the dry lake. The vehicles were searched, the two defendants were lodged in the local jail and their wallets and personal effects were put into property envelopes. After an interview by federal agents, See was released without charge; Gordon was charged with an offense not relevant here and released on bond.

The vehicle search revealed a map on which was marked the ' location of the crashed airplane. See’s wallet contained two incriminating notes, one with the room and telephone numbers of Lillak at the motel. Telephone company records showed that calls were placed to Lillak’s motel on September 5th and 6th from Gordon’s Nevada residence. Lillak returned to the Chula Vista airport on September 15th to deny that he had taken the airplane a week earlier.

See and Gordon were indicted in the district of Nevada, Lillak being named as an unindicted co-conspirator. A mistrial was declared in that action and a later indictment was filed in the southern district of California, this time joining Lillak with See and Gordon. The later case was based on the same facts as the Nevada prosecution. Prior to trial defendants See and Gordon moved to dismiss because of double jeopardy and to suppress all items taken from their persons and vehicles at the time of their arrests. Both motions were denied. Additionally, each defendant moved for disclosure of governmental electronic surveillance. Two months before trial, counsel for See by affidavit alleged that his office had been subjected to illegal surveillance, and this was denied by government affidavits directed both to See and to his counsel.

I. Double Jeopardy

Appellants See and Gordon argue that the declaration of a mistrial in the Nevada district court was improper and that the second trial for the same offense in California violated their Fifth Amendment protection against double jeopardy.

The Nevada trial began on April 2, 1973. After three and a half days of trial, the case was given to the jury for deliberation at 12:22 p. m. on April 5. At 3:20 p. m. the following day the jury requested and was given instructions by the judge in open court on a point of law. They returned at 5:13 p. m. with a note to the judge indicating that they were unable to reach a unanimous verdict. They had then deliberated ten hours and three minutes. After the judge received the note disclosing the jury’s irreconcilability, the following proceedings occurred in open court:

THE COURT: Ladies and Gentlemen, I have your note you are unable to reach a unanimous agreement, signed by your foreman. You feel, do you, that it is hopeless to pursue your deliberations any further?
THE JURY FOREMAN: Yes, we have tried.
THE COURT: You have tried?
SEVERAL JURORS: Yes.
THE COURT: And you don’t think that any further deliberation will be apt to produce a unanimous verdict? Is that true? Or do you think it would help?
JUROR NO. 2: Not enough, Your Honor.
THE COURT: Well, you have been at this since noon yesterday. And is this the consensus of the group ? That is, do most of you feel this way?
JUROR NO. 4: True.
THE COURT: Very well. If that is the consensus of the group. In view of the length of time you have been out, the Court will declare—
MR. ZWEIG: Counsel, — Your Hon- or, — just a minute. (Counsel and the Court discussing matter at side bar whispers)
THE COURT: You want to make a record on that, Gentlemen?
MR. GOODMAN: I wanted to think about it.
THE COURT: Go ahead and think about it for awhile.
(Court and Counsel adjourn to chambers, leaving the jury in the box)

During the colloquy in chambers, counsel for Appellants objected to the declaration of a mistrial and requested that the jury be given an “Allen charge.” The judge denied these motions and declared a mistrial.

In Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973), the Supreme Court reiterated the principles governing the applicability of the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant’s objection: “In United States v. Perez [22 U.S. (9 Wheat. 579, 6 L.Ed. 165 (1824)] and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), this Court held that ‘manifest necessity’ justified the discharge of juries unable to reach verdicts, and, therefore, the Double Jeopardy Clause did not bar retrial.”

In Perez the Court held that the lower court had properly granted a mistrial when the jury was unable to reach a verdict:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible .to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

22 U.S. (9 Wheat.) at 580.

The weight of such decisions has remained on the informed discretion of the trial judge. In Somerville, stipra, the Court noted that:

The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court.

410 U.S. at 462, 93 S.Ct. at 1069.

In Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961), the Court stated that:

Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared.

(Emphasis added.)

The trial judge must balance the defendant’s “valued right to have his trial completed by a particular tribunal,” with society’s interest in just judgments and the conservation of judicial resources. In its most recent decision on the Double Jeopardy Clause, the Supreme Court emphasized that a “defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Somerville, supra at 470, 93 S.Ct. at 1073, quoting Wade, supra at 688-689, 69 S.Ct. 834.

However, the declaration of a mistrial because of the inability of a jury to reach a unanimous verdict also serves to protect the interests of the defendant in many eases. As the Second Circuit noted in United States v. Goldstein, 479 F.2d 1061, 1068 (2d Cir. 1973):

Requiring a jury to continue deliberations despite genuine and irreconcilable disagreement more often than not defeats the ends of public justice; not only will such compulsion needlessly waste valuable judicial resources, it may coerce erroneous verdicts.

In that case the court held that the trial judge had not abused his discretion in declaring a mistrial after the jury had twice reported that it was unable to reach a verdict.

As stated in Wade, supra, 336 U.S. at 691, 69 S.Ct. at 838:

[T]he guiding principles of the Perez decision . . . command courts in considering whether a trial should be terminated without judgment to take “all circumstances into account” and thereby forbid the mechanical application of an abstract formula.

However, in determining whether a judge has abused his discretion in declaring a mistrial because of a hung jury, the courts have isolated some significant factors. The trial judge must determine whether .there is a probability that the jury can reach the verdict within a reasonable time.

The “crucial factor” in determining the probability of agreement is a statement from the jury that it is “hopelessly deadlocked.” United States v. Lansdown, 460 F.2d 164, 170 (4th Cir. 1972).

A statement by the jury that it is currently deadlocked has been held an insufficient ground for declaring a mistrial. The judge should question the jury in such circumstances, either individually or through its foreman, on the possibility that its current deadlock could be overcome by further deliberations.

Although a poll of jurors is the preferred method in some states, questioning the jury as a group on the possibility of a verdict is an acceptable alternative. Note that it has been held reversible error to inquire whether there was a predominance one way or the other.

The judge may consider whether the exhaustion of the jury might induce the minority to vote for a verdict which they would otherwise not support, cf. United States ex rel. Russo v. Superior Court of New Jersey, 483 F.2d 7, 15 (3d Cir. 1973).

The length of the trial and the complexity of the issues facing the jury are also elements to be examined by the trial judge.

The time taken in deliberations by the jury is also a significant factor to be evaluated by the trial judge, although no fixed standards have been set.

The American Bar Association study, Trial by Jury, concluded that “the minimum deliberation time should depend at least in part upon the length of the trial,” at 157. It noted that in trials lasting 3-5 days, juries which were hung took an average of approximately 3 times as much time (10.8 hours) as juries which reached a verdict (3.7 hours), citing Kalven & Zeisel, The American Jury 459 (1966).

Based on these considerations, it is clear that the trial judge below did not abuse his discretion in declaring a mistrial after the jury indicated it was hopelessly deadlocked after over ten hours of deliberations over two days. The trial took three and a half days, and the time spent in deliberation by the jury was not so disproportionately brief as to indicate that further discussion was necessary. The time taken by the jury falls within the average time spent by juries in cases of similar length. While this is not a determinative factor by itself, it is significant when taken in conjunction with the other issues discussed below.

This jury indicated to the judge in writing that it was deadlocked. He did not rely on this statement alone, but rather called them into open court and questioned the foreman and members as to whether there was any possibility that a verdict could be reached and whether additional time for deliberation would be of assistance. The replies were all negative. The experienced trial judge, having observed the jury during the three and a half days of trial and having seen and heard their responses to his questions in open court, concluded that any additional actions on his part to “push” the jury towards a decision would be inappropriate. Accordingly, he dismissed the jury and declared a mistrial, denying requests of counsel for continued deliberations and an Allen charge.

No request was made by counsel for the appellants for the court to poll the juriors individually with respect to the prospect of reaching a verdict. The judge’s questions in open court certainly provided both an opportunity for jurors to give contrary opinions and for the judge to gauge their individual reactions to his questions. In such circumstances it would be inappropriate to rule that the trial judge had abused his discretion by failing to poll the jurors individually.

The case was not a complicated one and only a single count of conspiracy was involved. The judge could certainly have ruled that further deliberations would be inappropriate, given the length of time already spent, the complexity of the case, and the clear assertions of the jury that they were hopelessly deadlocked.

The decision of the judge below is supported by decisions in this and other circuits. In Tolan v. United States, 370 F.2d 799 (9th Cir.), cert. denied 387 U.S. 932, 87 S.Ct. 2052, 18 L.Ed.2d 994 (1967), the trial court declared a mistrial after the jury declared itself hung after twelve hours of deliberation. We held that “There is no basis for us to hold on these circumstances that the court clearly abused its discretion.” Id. at 803. See also Forsberg v. United States, 351 F.2d 242 (9th Cir. 1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212 (1966).

In United States v. Cording, 290 F.2d 392, 393 (2d Cir. 1961), the foreman of the jury reported after three hours and fifty minutes of deliberation that:

[T]he jury had not been able to agree and that there was no likelihood of their agreement if they were kept out longer. Judge Abruzzo thereupon declared a mistrial. Since the jury had declared its inability to agree on a verdict, the action of the court in discharging the jury was a proper exercise of its discretion.

See also United States v. FitzGerald, 205 F.Supp. 515 (N.D.Ill., 1962).

In United States v. Brahm, 459 F.2d 546, 550 (3d Cir. 1972), it was said:

The jury had deliberated for over five hours . . . in a case which took only two days .... It was not unreasonable or unusual for the court to dismiss the jury under these circumstances.

In that case the jury had indicated several times that it was deadlocked. The court, however, cited other issues in support of its decision to affirm the declaration of a mistrial, 459 F.2d at 550.

The appellants cite both the Lansdown, supra, and Russo, supra, cases in support of their contention that the trial judge abused his discretion in declaring a mistrial. These cases are clearly inapposite.

In Lansdown the judge, sua sponte declared a mistrial, ignoring the statement of the jury foreman that they were “on the verge” of a verdict. The Court of Appeals concluded:

There are many cases, which we believe have been correctly decided, where the trial court was sustained after dismissing juries where they had deliberated less than the approximately 11 hours in this case .... However, in each of these cases the jury had specifically stated that they were hopelessly, deadlocked, a crucial factor missing in the present case.

460 F.2d at 169.

In the case before us, the jury stated on several occasions (and were questioned on their statement by the judge) that they were hopelessly deadlocked. Lans-doiun is thus distinguishable.

In Russo, the court held that the trial judge abused his discretion in declaring a mistrial after nine days of trial and 15 hours of deliberation by the jury when the forelady indicated that the jury had “not yet” reached a verdict. The court held that “we think that the trial judge must at least determine whether the jury is approaching a verdict.” 483 F.2d at 16. It noted that “the jury never stated anything to indicate that it was exhausted or deadlocked, and the trial judge had previously told the jurors that they could have all the time they needed.” Id. Again, the case is distinguishable, since the jury had not indicated that it was hopelessly deadlocked, as here. Appellants have not cited, nor does our research disclose, any federal decision which has held that a mistrial was prematurely declared once the jury stated to the district judge that there was no probability that it would reach a verdict.

Considering all of the circumstances, we conclude that there was “manifest necessity” in this case for declaring a mistrial, and that the trial judge did not abuse his discretion when he did so. When a trial judge has been informed by the jury that it is hopelessly deadlocked, and when he is convinced after appropriate questioning that further deliberations might lead to a coerced verdict, he does not abuse his discretion by dismissing the jury after ten hours of deliberations following a trial of three and a half days.

Appellants See and Gordon also contend that an Allen instruction should have been given before the mistrial was declared. During their colloquy with the judge in chambers after the jury had announced it was deadlocked, counsel for Appellant See had moved for the use of “a charge like the Allen charge.” This was denied by the trial judge: “To push them either way, would be wrong.”

As we stated in Sullivan v. United States, 414 F.2d 714, 716 (9th Cir. 1969):

We doubt that it is really any longer advisable to give the Allen instruction at all, and it certainly should be given only when it is apparent to the district judge from the jury’s conduct or the length of its deliberations that it is clearly warranted.

(Emphasis added.) Cf. United States v. Contreras, 463 F.2d 773 (9th Cir. 1972). The Seventh Circuit has upheld the refusal of a trial judge to give a modified Allen instruction when he thought its use would be coercive, United States v. Medansky, 486 F.2d 807, 813 (7th Cir. 1973), cert. denied 415 U.S. 989, 94 S.Ct. 1587, 39 L.Ed.2d 886 (1974) (jury twice stated it is deadlocked, mistrial declared after 14 hours of deliberations).

It would be contrary to solidly reasoned law to require a district judge to give an Allen instruction when the experienced trial judge, acting in his sound discretion and best judgment, determines that such an instruction would be coercive.

II. Probable Cause for Arrest

Appellants See and Gordon claim that Meglen lacked probable cause for their custodial arrest and the fruits of the search incident to the illegal arrest were inadmissible.

At the outset it is clear that See and Gordon were arrested before the search. Upon apprehension at the service station they were instructed that they were not “free to leave” and that they had to surrender their firearms. After doing so, they were directed to move their vehicles 200 yards to the sheriff’s office which they did with deputies following in patrol cars. At the sheriff’s office the trucks were searched and appellants were booked.

When they were instructed at the service station that they were not “free to leave” and that they were to surrender their hand guns, their “liberty of movement” was restricted, and the arrest was complete. See, e. g., Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Strickler, 490 F.2d 378 (9th Cir. 1974); and Taylor v. Arizona, 471 F.2d 848 (9th Cir. 1974).

An arrest without a warrant and a reasonable search incident to that arrest are valid if the arrest is based on probable cause. Probable cause for a custodial arrest is determined by examining whether “the facts and circumstances within [Meglen’s] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Striekler, supra. From the record and applying this standard, we conclude that there was justification for the arrests.

An airplane loaded with marijuana had crashed and been burned at a remote spot in Nevada. Meglen’s prior investigations connected See, Gordon and the crashed airplane with a marijuana smuggling group. They had apparent knowledge of the airplane crash on the dry lake at a time when they could not have known of it. Smuggling involving an airplane commonly requires a ground crew to carry the goods away and to refuel the airplane. See and Gordon were equipped as such a crew would be, with a truck to carry fuel, a pump to transfer it, and a camper to conceal the marijuana on the trip out. Meglen’s prior experience with this method of smuggling augmented his probable cause. See, e. g., United States v. Patterson, 492 F.2d 995 (9th Cir. 1974); United States v. Ardle, 435 F.2d 861 (9th Cir. 1970); Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965). The excuse given by appellants to the first group of officers that they were going to a ranch, which was 50 miles in the opposite direction, gave Meglen reason to believe that their armed presence at that remote place at that time was more likely due to smuggling than to some innocent purpose.

The aggregate of the facts and circumstances within Meglen’s knowledge would warrant a prudent man’s belief that See and Gordon were involved in the marijuana smuggling and, therefore, Meglen had probable cause to order their arrest for participation in that crime. As an incident to that arrest, the search of appellants’ persons, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 218, 38 L.Ed.2d 427 (1973), and the reasonable search of their vehicles for implements used to commit the crime was proper. See, e. g., Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); United States v. Selby, 407 F.2d 241 (9th Cir. 1969); and Oelke v. United States, 389 F.2d 668 (9th Cir. 1967). The motions to suppress were properly denied.

III. Electronic Surveillance

When an accused claims that he has been subjected to electronic surveillance by the government, Title 18 U.S.C. § 3504 requires that the government affirm or deny the act. Appellants contend .that the government’s responses to their several demands for disclosures of electronic surveillance of themselves and of defendant See’s attorney were inadequate.

In United States v. Alter, 482 F.2d 1016 (9th Cir. 1973), we required that the government’s reply to a party’s claim under § 3504 be “factual, unambiguous and unequivocal.” However, because responding to ill-founded claims of electronic surveillance would place an awesome burden on the government, a claim of government electronic surveillance of a party must be sufficiently concrete and specific before the government’s affirmance or denial must meet the requirements of Alter, supra. Accordingly, a general claim requires only a response appropriate to such a claim. See United States v. Vielguth, 502 F.2d 1257 (9th Cir. July 17, 1974).

The record discloses that the appellants’ claim of electronic surveillance of them was vague to the point of being a fishing expedition. The government’s response to the claim was more than adequate.

The affidavit to support the claim that defendant See’s attorney had been subjected to electronic surveillance averred that counsel’s telephones had been tapped during the previous five years but the affidavit did not allege that any electronic surveillance had been conducted in connection with the attorney’s representation of this defendant.

Because this claim that counsel’s telephones had been tapped does not meet the requirements we set forth in Alter, supra, the claim does not command any response; thus, we need not decide whether the government’s response was adequate. See United States v. Alter, supra; United States v. Vielguth, supra.

IV. Motion for Acquittal

Appellant Lillak alleges error in the denial of his motion for acquittal at the close of the government’s case.

We have summarized the facts of the airplane landing, the marks of truck tires and fuel drums and evidence that appellants See and Gordon were driving near the scene equipped to transport the contraband and refuel the airplane. That evidence establishes the existence of a conspiracy to illegally import marijuana.

Once the existence of a conspiracy is established, slight evidence is sufficient to connect a given defendant with it. See, e. g., United States v. Jit Sun Loo, 478 F.2d 401 (9th Cir. 1973); United States v. Yaple, 450 F.2d 308 (9th Cir. 1971). Evidence of Lillak’s participation included: the proximity of defendants See and Gordon to Lillak’s airplane loaded with marijuana on the remote dry lake bed; Gordon’s telephone calls to Lillak’s motel in San Ysidro, California from Las Vegas, Nevada on September 5th and 6th; Lillak’s preparation of the plane on September 7th; and the plane’s departure on the 8th, the same day that Lillak checked out of his motel room in San Ysidro.

Assessing this evidence, as we must, “in the light most favorable to the prosecution,” e. g., United States v. Eskridge, 456 F.2d 1202 (9th Cir. 1972), we conclude that the evidence was substantial enough for the jury to properly infer, beyond a reasonable doubt, that Lillak was guilty of conspiring to illegally import and distribute marijuana. See, e. g., American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); United States v. Jit Sun Loo, supra,; United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969). Lillak’s motion for judgment of acquittal was properly denied by the district court.

V. Review of Appellants’ Sentences

All appellants ask this court to review their sentences. Each was sentenced to four years in prison, one year less than the maximum allowable. “A sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); see, e. g., United States v. Flohr, 472 F.2d 1165 (9th Cir. 1973); United States v. Sanders, 466 F.2d 673 (9th Cir. 1972); Gebhard v. United States, 422 F.2d 281 (9th Cir. 1970). Appellants come within no exception to this rule.

The judgment is affirmed as to each defendant.

      . Appellant Lillak was not a party in the Nevada trial and does not make this argument.

      . The objection by counsel for appellant See was joined in by counsel for Gordon, pursuant to an earlier stipulation between all counsel and the court to the effect that an objection by one defendant would apply to both unless it was specifically stated that the other did not join in the objection.

      . COLLOQUY IN CHAMBERS :
      MR. ZWEIG: Here is our problem, judge. I don’t think they have been deliberating very long — less than ten hours. This is a case in which I asked — asked yesterday to have them sequestered and you denied it. Now in my opinion, this ease has been widely published in the riewspapers as “another case involving marijuana that is imported.” Now this raises the deepest kind of prejudice in the minds of people who have thought about that. I think jurors in cases like this have strong opinions, no matter what the content of the trial. I think with jurors like that, it takes them a time to get beyond that and consider the law. This is the very first time for many of them to try a case like.this and they have had problems. Just an hour and a half ago, they came back with a legal question. I think they should continue to deliberate — especially when, at the very first indication, I expected them to say, “We are frustrated — can’t agree.” But the time spent has not been very long in respect to the problems involved here. I think that a charge like the Allen charge should be given, where Your Honor should let them know that some jury is going to have to decide this; that every case is tough, but they are going to have to make a decision if they can, and send them out again. And if, later, they are still deadlocked — if they haven’t changed their vote— then perhaps consider a mistrial. But I think, after an hour and a half, with just the slightest showing that they are frustrated. (and that is all we have, is just the “slightest showing” that they are frustrated) that it is greatly prejudicial to the defendants to declare a mistrial. I don’t think they are having their case fully deliberated by the jury, — and I really feel it is a double-jeopardy attack. They are entitled to have it heard by the jury.
      THE COURT: You had it heard. I think you had it heard long enough.
      MR. ZWEIG: I take exception to calling a mistrial at this time, and ask specifically that the Allen instruction be given.
      THE COURT: I think at this time I am going to discharge them. To push them either way, would be wrong.
      (Court and Counsel return into Court)
      FURTHER PROCEEDINGS IN OPEN COURT:
      THE COURT: Very well, Ladies and Gentlemen, in view of your inability to reach a verdict in this case, I now declare a mistrial. This case, of course, will need to be tried at some other time before some other jury.

      . Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).

      . United States v. Lansdown, 460 F.2d 164, 169 (4th Cir. 1972), see also American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 5.4(c) (Approved Draft, 1968). (“no reasonable probability of agreement” at 146.)

      . And see United States ex rel. Russo v. Superior Court of New Jersey, 483 F.2d 7, 16 (3d Cir. 1973), cert. denied 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973).

      . United States v. Goldstein, 479 F.2d 1061, 1068-1069. Trial by Jury, supra at 157.

      . E. g., Paulson v. Superior Court of El Dorado County, 58 Cal.2d 1, 22 Cal.Rptr. 649, 652, 372 P.2d 641 (1962).

      . Clemensen v. Municipal Court, 18 Cal.App.3d 492, 96 Cal.Rptr. 126, 131-132 (Ct. of App., 1971); People v. Caradine, 235 Cal.App.2d 45, 44 Cal.Rptr. 875, 878 (Ct. of App., 1965).

      . Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). See also Marienfield v. United States, 214 F.2d 632 (8th Cir.), cert. denied 348 U.S. 865, 75 S.Ct. 87, 99 L.Ed. 681 (1954) (despite simple request for numerical breakdown of jury, foreman reveals actual predominance).

      . Goldstein, supra 479 F.2d at 1068; Trial by Jury, supra at 157.

      . Lansdown, supra 460 F.2d at 169; Goldstein, 479 F.2d at 1069 (time needed to reach a verdict was a determination “best left to a trial judge” and “difficult to gauge by another district judge or by appellate judges on a cold record.”) Compare Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892) (jury deliberated 40 hours) with United States v. Brahm, 459 F.2d 546 (3d Cir. 1972) (jury deliberated 5 hours) and United States v. Jim Lee, 123 F. 741 (N.D.Cal.1903) (jury deliberated one hour and thirty-five minutes).

      . The case might also be distinguished on the ground that it involved a trial for a capital offense. As noted in Peres, “in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.” 22 U.S. (9 Wheat.) at 580. This heightened concern of the court was certainly noted by the Court of Appeals in Russo since this passage from Perez was quoted three times in the opinion in the space of three pages, 483 F.2d at 13, at 13 n. 6, and at 15.
      In striking a balance between the interests of the state and those of the defendant, the courts have been admonished therefore to give more weight to the fate of the person charged with a capital offense. See McNeal v. Collier, 353 F.Supp. 485 (N.D.Miss., 1972) rev’d on other grounds, sub nom. McNeal v. Hollowell, 481 F.2d 1145 (5th Cir., 1973): “In a capital case, special consideration must be given to the rights of the accused.” 353 F.Supp. at 490.
      This is not to say that those accused on misdemeanors or non-capital offenses are to be denied their double jeopardy protections, Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873) ; but rather that courts should exercise extreme caution in weighing the rights of those accused of capital crimes.

      . Originally approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . Defendant Lillak also seeks reversal due to the admission of this evidence. Under the test recently announced by the Supreme Court, Lillak lacks standing to contest the search and seizure. Lillak “(a) [was] not on the premises at the time of the contested search and seizure ; (b) [had] no proprietary or possessory interest in the premises; and (c) [was] not charged with an offense which includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973).

      . Whether probable cause existed must be determined from the information available to Meglen at the time he put out the bulletin, since the sheriff’s deputies, as they were entitled to do, were acting in. reliance on Meglen’s authority to arrest. See Whiteley v. Warden, 401 U.S. 560, 568-569, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); see also, United States v. Williams, 459 F.2d 44 (9th Cir. 1972).

      . Title 18 U.S.O. § 3504 provides in pertinent part:
      “In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States — (1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of that alleged unlawful act . . . .”

      . Because varying degrees of specificity in a claim will require varying degrees of specificity in a response, we do not attempt to delineate the contents of the response. United States v. Alter, supra, at 1027 n. 19.


source: Caselaw Access Project

author: COLEMAN, Circuit Judge. TUTTLE, Circuit Judge,

license: Public Domain

text:
    Grover William SIMS, Second Lieutenant, United States Air Force [ XXX-XX-XXXX ]-FV, Plaintiff-Appellant, v. Cecil E. FOX, Brigadier General, etc., and Dr. John L. McLucas, Secretary of the Air Force, Defendants-Appellees.
    No. 73-2707.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      Reginald C. Wisenbaker, Valdosta, Ga., for plaintiff-appellant.
    Hale Almand, Jr., Asst. U. S. Atty., William J. Schloth, U. S. Atty., Sam R. Wilson, Earl W. Carson, Asst. U. S. Attys., Macon, Ga., Dr. John L. McLucas, Sec. of Air Force, William Kanter, Thomas G. Wilson, Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   COLEMAN, Circuit Judge.

This is an action by Air Force Lieutenant William Sims against Air Force General Cecil Fox and the Secretary of the Air Force. Sims asks that the Air Force be enjoined from discharging him without first giving him a hearing in person to present proof of his fitness for continued service.

The District Court dismissed Sims’ complaint for failure to state a claim upon which relief could be granted. A Panel of this Court reversed, Sims v. Fox, 5 Cir., 1974, 492 F.2d 1088. We granted the petition for rehearing en banc, and again consider the correctness of the dismissal.

We affirm the Judgment of the District Court.

Lt. G. William Sims was ordered to active duty on July 14, 1971. His performance of duty was good. Until June, 1972 his off-duty life was unremarkable. In that month, Sims was arrested for two separate acts of indecent exposure. Specifically, on June 20 and June 23 he was charged with exposing his sexual organs to females. He was released on bond.

In September of 1972, Mrs. Carol Barnett, a civilian, reported to military authorities that Sims on two occasions had exposed himself to her minor children, ages six, nine, and four. Sims was again charged with indecent exposure.

On 4 January, 1973, Sims was tried in a Georgia state court. Under a Georgia statute providing for special treatment for first offenders, he was allowed to plead nolo contendere and was placed on probation for a year. Although the Georgia Court made no adjudication of guilt, Sims has never denied that he, in fact, committed the acts with which he was charged.

On January 24, 1973, Sims was notified by his Wing Commander that discharge proceedings were being initiated. Sims was given 15 days in which to submit written statements and documentary evidence.

In response, Sims submitted a letter from a superior officer characterizing him as “one of my most trustworthy subordinates”, a letter from a psychiatrist saying that Sims is “mentally and emotionally capable of performing his old duties and occupation”, along with the Georgia court order which discharged him without an adjudication of guilt. However, Sims wrote his Commander that “this information does not deny the basic allegations against me”,

Unpersuaded by the evidence submitted by Sims, the Secretary of the Air Force ordered Sims honorably discharged.

The exact terms of the discharge are important. At the time Sims was notified of his prospective discharge and at the time the Panel heard Sims’ appeal, Air Force regulations provided that the discharge certificate (DD Form 214) would contain a code which, upon inquiry, would reveal that Sims was discharged because of “fail[ure] to meet the standards of conduct and performance prescribed by the Secretary of the Air Force”, and would further reveal that the discharge was related to Sims’ “unfitness, unacceptable conduct or in the interest of national security.” As the Panel observed,

“Simply stated, an honest inquiry into the basis for Sims’ discharge would demonstrate that [Sims] had been given a discharge for reasons that would greatly undercut the status of the discharge as ‘an honorable discharge.’ . . . There can be no doubt but that Sims’ discharge [would be] a flawed passport back to civilian] life.” 492 F.2d at 1091.

Since the rendition of the panel decision, there has been a significant change in Air Force regulations. They now provide that the code explaining the reason for discharge will not be put on the discharge certificate. The certificate “on its face” does not reveal the reason for discharge. Furthermore, the regulations specify that narrative reasons for discharge can be obtained only by a former “member furnish [ing] the original DD Form 214 for the period of service for which he desires the narrative reasons for separation”. As explained by Air Force correspondence, “narrative reasons for separation are to be furnished only to the member and then only upon his request and provided the member can furnish the original DD Form 214.”

Sims’ contention is that notwithstanding the honorable character of the discharge and notwithstanding the fact that there is nothing on the face of the discharge paper (DD Form 214) to indicate the reason for discharge, he is entitled to a pre-discharge hearing. Sims says, that the Air Force, by discharging him on the ground of sexual deviancy, is denying him “liberty” and “property” and he is therefore entitled to the “due process” guaranteed by the Fifth Amendment.

Sims raises these claims despite 10 U. S.C. § 1162 which provides that a reserve officer such as Sims may be discharged “at the pleasure of the President”.

I. The Property Claim

Sims first claims that he has a “property right” in continued employment in the Air Force. In his brief, Sims says that the property right is conferred by his “expectation of a full tour of duty”, by “an implied promise . . . of continued service .”, or by an “understanding” between himself and the Air Force.

A substantially similar claim was considered in Board of Regents of State College v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In that case, a non-tenured state college professor claimed, inter alia, that the State’s refusal to renew his contract was a deprivation of his “property” and that he was therefore entitled to a pre-discharge hearing. The Supreme Court responded that a non-tenured professor, who was given no right to contract renewal either by state law or by expressed or implied terms of his contract, had no property interest in continued employment.

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it.
if if if if if ff
“[The] terms [of plaintiff’s appointment] secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent’s employment was to terminate on June 30. They did not provide for contract renewal absent ‘sufficient cause.’ Indeed, they made no provision for renewal whatsoever.
“Thus, the terms of the respondent’s appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to reemployment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.” 92 S.Ct. at 2709-2710.

The present facts are similar to those in Roth in that there is nothing in Sims’ contract or in any statute creating a right to continued employment. The statute specifically negates the right of a reserve officer to continued employment ; reserve officers may be discharged “at the pleasure of the President”, 10 U.S.C. 1162. Thus, the statute explicitly provides that one has no vested right to continue in the employment of the United States Armed Forces. One who may be discharged “at the pleasure” of another; i.e., arbitrarily, for no cause whatsoever, simply has no property right to continued employment. The statute could not have expressed that proviso in any more specific terms.

Apparently recognizing that the source of his alleged property right to employment cannot lie in the statute, plaintiff claims he is given such a right by “understanding” or “implied promise”. That a property right may spring from such a source is supported by language in Roth, supra, and also by the holding in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In the latter case, a non-tenured professor complained, inter alia, that he had been deprived of “property” because his contract had not been renewed. There was no statute and no contract that gave him a right to contract renewal. Rather, the plaintiff argued that the college had a “de facto” tenure policy. This policy was expressed in the college’s faculty guide which provided;

“Teacher Tenure-. Odessa College has no tenure system. The Administration of the College wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he displays a cooperative attitude toward his co-workers and his superiors, and as long as he is happy in his work.” 92 S.Ct. at 2699.

Additionally, plaintiff there relied upon guidelines published by the state college board indicating that a person who had been employed as a teacher enjoyed a form of tenure.

These “policies and practices” of the school and the Board of Trustees, the Court said, could create a property interest. It was not necessary that an employment contract or a statute specifically create the interest.

The Perry case supports plaintiff’s argument in the sense that it indicates that there is no rigid limit to the sources of property rights. Such rights may be derived from statutes, from explicit contracts, or, as was true in Perry, from state declared policies.

But there are still limits on those things that can be considered “property rights”. There must be some reasonably identifiable source from which the rights spring; they cannot emanate, as was said in Perry, from “mere subjective expectancy”, 92 S.Ct. at 2700. The law still recognizes the immutable notion that something cannot spring from nothing. One cannot create for himself a property by proclaiming its existence.

In this case, Sims says he has a property right to continued employment, but he can point to nothing other than his own expectancy for the creation of that right. No statute created it; indeed, the statute expressly denied its existence. Neither has Sims pointed to any express terms in his contract or to any governmental regulation that might have led him to believe he had such a right. An Air Force contract or regulation cannot grant that which Congress has specifically withheld. The Air Force must act within the authority delegated to it by Congress or, in certain cases, by the President. Any “regulations” or “contracts” attempted in excess of that authority would be void.

Sims has no property right in continued military employment because there is no source for it other than his own “expectancy”. The applicable statute specifically denies the right.

II. The Liberty Claim

Appellant’s second theory is that the Air Force action under the circumstances of this case deprives him of “liberty”. The “liberty” allegedly taken is his “good name, reputation, honor, and community standing”. In this respect Sims’ contention is less convincing than when the Panel originally decided his appeal. At that time, appellant’s prospects were that he would, receive a discharge paper (Form DD 214) which on its face would contain a code which, upon inquiry or investigation, would reveal that he had been discharged for “unfitness, unacceptable conduct, or in the interest of national security”.

The Air Force no longer uses the code which would have revealed the reason for his discharge. The discharge paper which he is now about to receive will not reveal the reason for the discharge. Moreover, Air Force regulations prescribe that reasons for the separation are to be furnished only to the serviceman.

Thus, as Air Force regulations now stand, appellant will receive an honorable discharge which will not indicate the reason for the discharge. Persons outside the military can obtain the reason for discharge only in the remote event that the Air Force disregards its own regulation. His contention that his liberty interest is infringed by Air Force action is therefore necessarily reduced to a possibility that the Air Force might allow the derogatory information to “escape”.

It is, of course, established law that a governmental attack on one’s “good name, reputation, honor, and community standing” can be a deprivation of “liberty”, within the meaning of the Fifth and Fourteenth Amendments. This was the holding in Wisconsin v. Constantineau, 400 U.S. 433, 436-437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971), which involved the constitutionality of a Wisconsin statute allowing specified governmental officials to post in public establishments the names of persons who were not to be sold intoxicating liquors. The Supreme Court held this statute to be an unconstitutional denial of “liberty” since the persons whose names were posted were exposed to public embarassment and ridicule. One’s “good name, reputation, honor, and community standing” cannot be taken from him, the Court said, without a hearing in which the truth of the posted matter may be tested.

A more recent Supreme Court pronouncement that “liberty” is lost when one’s “good name, reputation, honor, and community standing” are falsely attacked is found in Roth, supra, where the Supreme Court held, inter alia, that plaintiff (a non-tenured school teacher whose contract was not renewed) was not denied “liberty” within the meaning of the Fourteenth Amendment since the non-renewal of his contract was not based upon any charge which

“might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case.
* •» * * * *
“Similarly, there is no suggestion that the state, in declining to reemploy the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. . . .” 92 S.Ct. at 2707.

In brief, Roth teaches that the government’s attack on one’s reputation may infringe constitutionally protected liberty in two respects: (1) governmental degradation of one’s standing in his community may be a denial of “liberty”; (2) governmental communication of derogatory information to employers may be an attack on “liberty”.

Under the first test, plaintiff’s reputation in his community has not been attacked. The community in which plaintiff will live after discharge can be expected never to know from public records of the circumstances of his discharge.

As to the second, Air Force regulations specifically deny that employers, or anyone else, can learn of the circumstances of the discharge. In the absence of allegations indicating a reasonably anticipated likelihood that the Air Force, notwithstanding its regulations to the contrary, would reveal plaintiff’s record to potential employers, the complaint is purely speculative.

Infringement of “liberty”, as defined in the Roth guidelines, is not, on substantial possibility, involved in this case.

Thus the case is reduced to whether the mere presence of derogatory information in an employer’s confidential files is an infringement of liberty.

Arguably, the very presence of derogatory information in an employer’s confidential records infringes protected “liberty” since it denies a person the freedom he otherwise would have to use his record for his own benefit by voluntarily making it available to future employers. The contrary argument would be that the harm suffered by the mere presence of damaging information in a confidential file is not substantial enough to amount to an infringement of “liberty” in the constitutional sense. In this Circuit the law on that subject is settled. In Collins v. Wolfson, 5 Cir., 1974, 498 F.2d 1100, 1104, state university teachers made various claims that the state university for which they worked was depriving them of “liberty” within the meaning of the Fourteenth Amendment “due process” clause. The claim of three of the teachers was that constitutional rights were violated because school officials had placed unfavorable memoranda in their files concerning their activities on behalf of a teachers’ union. This Court summarily disposed of the teachers’ claim saying that “lodging these memos, without more, in the instructors’ respective files gives rise to no constitutionally based grievance”. The mere presence of derogatory information in confidential files is not an infringement of “liberty”.

Additionally, it is not to be overlooked that' Sims has not denied the truth of the charges against him. In his letter to his commanding officer, Sims stipulated that “this information does not deny the basic allegation”. As his counsel explained at the en banc hearing, Sims seeks an Air Force hearing not to refute the charges but only to present mitigating considerations. That makes this a ease in which appellant claims that constitutionally guaranteed liberty is infringed because the government is about to put the undenied truth in its own records. This need not long detain, us.

In the recent decision, Arnett v. Kennedy, 416 U.S. 134, 164, 94 S.Ct. 1633, 1649, 40 L.Ed.2d 14 (1974), the Supreme Court refers to an employee’s “liberty” right as being the right to be free from being “wrongfully stigmatized by untrue and unsupported administrative charges”.

In conclusion, we hold, as basic propositions, (1) that liberty is not infringed by the mere presence of derogatory information in confidential files and (2) the government has not infringed “liberty” unless it perpetuates untrue charges. Thus, in the absence of a denial of the truthfulness of the allegedly offending material, there is no necessity for a hearing; there is no disputed fact requiring resolution as the result of a hearing.

For the foregoing reasons we think the dismissal of the complaint must be allowed to stand, making it unnecessary to discuss the case in the light of Hodges v. Callaway, 5 Cir., 1974, 499 F.2d 417 (exhaustion of administrative remedies) or Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 14 (post discharge evidentiary process sufficiently protected “liberty” interest).

The Judgment of the District Court is

Affirmed.

TUTTLE, Circuit Judge,

with whom WISDOM, BELL, GOLDBERG, GOD-BOLD and MORGAN, Circuit Judges, join (dissenting):

With utmost deference to the views of my colleagues I am constrained to dissent.

I do so because I am fully convinced that Lt. Sims has a “property” right and a “liberty” right, as these terms are discussed in the majority opinion, to be protected under the Fifth Amendment to the Constitution. As I read the majority opinion, it holds that he has neither; it precludes this officer from ever claiming the right to a personal appearance, either before or after discharge, to undertake to convince those in authority that, instead of being discharged for immoral conduct, his potential as an Air Force officer is such as to warrant his retention in the service until the normal expiration of his tour of duty. This follows, it seems to me, because the Court holds that he has neither a property nor a liberty interest to protect, and without either he, of course, has no claim to procedural due process.

Because the opinion does not deal with the exhaustion of administrative remedies, I refer only to what has been said with respect to this in the panel opinion, calling attention, however, to that part of footnote No. 2 of the majority opinion, which cites 10 U.S.C.A. § 1553 and which italicizes the language “a person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Administrator of Veteran’s Affairs under chapter 59 of title 38.” I comment on this because, as stated in the panel opinion, and as conceded at all times by the Government, the provisions of § 1553 do not permit the board created thereunder to reinstate an airman or officer, once he has been discharged. I am concerned lest the italicizing of the above language may inadvertently convey the impression that such a right is available after discharge.

Of course, as also commented on in the panel opinion, and as conceded by the Government, § 1552 under which the Secretary may reinstate an officer, does not guarantee a personal appearance of a discharged airman or officer, seeking to have his discharge revoked.

It is unnecessary to repeat the facts that led to the filing of this lawsuit. It seems fair to assume for the purpose of this opinion that the majority would recognize that Lt. Sims is being deprived of a “liberty” right, protected by the due process clause of the Fifth Amendment, were it not for the change in regulations instituted by the Air Force since the filing of this action. The majority concludes that the change has the effect of keeping hidden the reason for discharge because the Air Force merely retains information that Sims has been discharged for the reasons outlined in paragraph S 4D(4) of Air Force Regulation 36-2 solely within its own confidential files.

The opinion of the Court comments on the fact that under Air Force Regulation 35-6, paragraph 4-6, effective 1 May 1974, only the Air Force itself, and the officer, at his own election, will now have the damaging information as to the “reason for discharge.”

With deference, I feel constrained to say that this theory of denying Lt. Sims a hearing with minimal due process is based upon what I consider to be the erroneous theory that what the officer and the courts should be concerned about is to keep from potential future employers the truth of the facts leading to Lt. Sims’ discharge. This, it seems to me, is to place principal emphasis on the cosmetic effect of the new form of entries on the officer's discharge certificate rather than to place it on the question whether he is entitled to have procedural due process before the Air Force takes the action, based on the unsavory factor. I would assume that this Court would expect a former officer of the United States Air Force, when asked by a prospective employer what was meant by the two dash marks that are now entered in all discharge certificates opposite the entry “reason for discharge” would tell the truth. Failure to do so would be a fraud on a prospective employer. For Lt. Sims to answer this question under the proposed action of the Air Force, he would in honesty, be compelled to say “I was discharged for the reasons spelled out in Air Force Regulations 36-2 as outlined in paragraph 4(d)(4) of that Regulation.” Then, upon being asked what is meant by that, he would have to say “Sub-paragraph (d)(4) is entitled ‘sexual perversion’ and it reads ‘this includes but is not limited to . (4) indecent exposure.’ ” The fact that this language is not “communicated” by the Air Force to prospective employers, either by having it inserted, as it was previously, on the discharge certificate at the time this lawsuit was filed, or in response to requests by future employers, makes no difference.

Lt. Sims has to live the rest of his life with his military record. The question before this Court, it seems to me, is whether his military career should be terminated by the Air Force forcing on him a discharge on the grounds of immoral conduct without his being afforded any procedural due process to explain away or overcome the effects of his misconduct. The wound resulting from a denial of an opportunity to this officer to have such a hearing is much more than skin deep. It goes to the vitals of his future career.

Of course, this Court would not pretend to prejudge the result of a proper hearing, if one were accorded to Lt. Sims. If the Air Force, after according him whatever rights he is entitled to under our concept of procedural due process, determines that no matter how much rehabilitation has been, or can be, achieved, and no matter how satisfactory his military record may be, his acts were such as to render him unfit to continue service in the Air Force, then he would have to live with the discharge certificate given him as a result of such misconduct and that would be the end of the matter. His only hope, and it is a hope that seems to justify the Court’s intervention, is that before he is discharged for any reason challenging his “good name, reputation, honor, or integrity” he is entitled to such due process as we have described in the panel opinion. He should have an opportunity to be present and make an effort to persuade the appropriate officials that such circumstances as he wishes to bring before them demonstrate that he has sufficient potential to make him a proper and suitable officer to remain in the service until the end of his normal tour of duty. Under such circumstances, of course, he would then receive a discharge certificate designating normal termination of service, and this would be his passport back to civil life.

However, the impression conveyed by the majority opinion that the unsavory information designated by SDN 588, signifying a discharge on the ground of “unfitness and/or unsuitability,” is kept a closely-guarded secret within the Air Force headquarters is not, in my opinion, borne out by the appropriate regulations, as amended on July 2, 1974. These amended regulations do away with the former requirement that, at the proper space following the item “reason for discharge” an entry be made which, when traced to the appropriate Air Force regulations, clearly gives the reason for the discharge. As heretofore pointed out this code number in Lt. Sims’ case was 588, and it was a clear statement of the reasons for discharge. Under the new regulations, no SDN entry is made on the original discharge certificate which is given to the officer himself. Instead, this space is filled with two dash marks. However, there are a total of eight copies of this discharge certificate provided for under these amended regulations. Copy no. 2 is the master personnel record copy, and it presumably remains at Air Force Headquarters. However, copies numbers 6 and 8 are sent to other interested parties. Regulations provide that copy no. 6 is to be “forward [ed] to NG ANG PMO WASH DC 20310, for review and transmittal to the appropriate state adjutant general.” [Emphasis added.] Copy no. 8 is required by regulations to be “forward [ed] to USAF RECTG SVC Randolph AFB TX 78148.” (This is clearly the U.S. Air Force Recruiting Service, Randolph Air Force Base, Texas.)

The Government does not in any way seek to minimize or conceal the fact that these copies, containing the SDN designation are sent to the Air Force Recruiting Service Headquarters and to the State Adjutant General of the officer’s home state, nor is any effort made to conceal the reason for this action. The reason is perfectly clear, but it is one which has largely escaped the attention of the Court, other than the comment in the original panel opinion calling attention to the fact that the discharge given to Lt. Sims will carry a designation which makes him ineligible ever to return to service in the Air Force, the Air Force Reserve, or the Air National Guard. In the truest sense of the word he will have been “blacklisted.”

It is not the fact that the adjutant general of the state of the residence of the airman or officer, (who incidentally, is a state official, and who may share the unsavory record concerning the officer with the state’s personnel computer, so far as the record discloses) that concerns me the most. It is the purpose for which this information is transmitted to the state adjutant general and to the Air Force Recruiting Service.

Any recruiting officer or state adjutant general who might, at some future date be inclined to yield to Lt. Sims’ request that he be permitted to serve in the National Guard or reserve forces of the United States Air Force as an enlisted man or officer in time of peace or on active duty in time of national emergency will now have been permanently forbidden to do so as the result of this discharge, based as it is on Air Force Regulation 36-2 pursuant to AFR 36-12 SDN 588 and the code number determining him to be unfit for further recall.

This lifetime bar to future opportunity to participate in a potentially lucrative profession, either full-time, or as a part-time activity, it seems to me, brings the case squarely within the exception noted in the Roth case, relied on in the majority opinion. For instance, the opinion contains the following quote from Roth. “[The Board of Regents] did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty or immorality. Had it done so, this would be a different case.” [Emphasis added.]

Also quoted is the following. “Similarly, there is no suggestion that the state, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. ...” [Emphasis added.]

Here, of course, the Air Force did base Lt. Sims’ discharge “on a charge . . . that he had been guilty of immorality.” Furthermore, it is clear that in discharging Sims the Air Force “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities . ... ”

This is a wholly separate matter from that discussed in the majority opinion, dealing with Lt. Sims’ opportunities to obtain jobs in the commercial world which, the Court seems to consider unimpaired because his discharge certificate does not on its face carry the pejorative words or code number.

If there can be any doubt about the nature of the “liberty” right of Lt. Sims which is here threatened, after reading the exception stated in Roth, supra, the following language from that opinion would, it seems to me, dispel any doubt. Immediately following the language: “the state, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities,” the court said “had it done so, this, again, would be a different case for '[t] o be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . . . ’ Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 185, 71 S.Ct. at 655 (Jackson, J., concurring). See Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131. The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities ‘in a manner that contravene [s] Due Process,’ Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, and, specifically, in a manner that denies the right to a full prior hearing. Willner v. Corn-mittee on Character, 373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224. See Cafeteria Workers v. McElroy, supra, 367 U.S. at 898, 81 S.Ct. at 1750. In the present case, however, this principle does not come into play.” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548.

Although I feel that the strength of Lt. Sims’ position with respect to the protection of his liberty right is sufficient to warrant the Court’s intervention with this proposed discharge until he has had minimal due process I think some comment is proper with respect to the existence of a property right, also.

I have no doubt that the arbitrary determination by the military officials involved that Lt. Sims shall be forever barred from further military service in the United States, without a hearing or proceeding that in any way approximates a trial is just as much a deprivation of a property right as would be the action of a board of bar examiners to deny an individual the right to a certificate to practice law on constitutionally suspect grounds. See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 and Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224. As to its deprivation of such a right, the Court, in language quoted with approval in Roth, said: “a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities ‘in a manner . . . that contravene (s) . . . Due Process,’ ” Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796. How can Lt. Sims’ black listing from all future military service for state or nation be distinguished?

In sum, I think that Lt. Sims’ liberty is threatened both as to his potential for all future employment opportunities, regardless of the absence of the unfavorable entry on the face of his discharge certificate. I think this is clearly implied in the language quoted from the Roth opinion. I also think that his liberty and property rights are both threatened by the attainder against his ever having the right to serve in the state or federal military forces. The authority of the President to discharge an officer at his pleasure does not, it seems to me, extend this right to bar him from competing with all other citizens in the future to serve his country in the Air Force, without some kind of trial or hearing with minimal procedural due process.

      . 27-2727 through 27-2732, Ga.Code Ann.

      . The discharge procedure is that specified in Air Force Regulation 36-2 -which provides, in relevant part, that a Wing or Base Commander, having received information indicating that an officer is unfit for continued service, notifies the officer of the charges against him and advises the officer that he has 15 days within which to submit written statements and documentary evidence. If, after considering the evidence, the Commander concludes that discharge is appropriate, he forwards the documented case to Air Force Headquarters.
      At Air Force Headquarters, the case is referred to the, Air Force Personnel Board which, after reviewing the evidence, makes its recommendation to the Secretary of the Air Force. The Secretary is the person who makes the final decision as to whether the officer should be retained or discharged.
      The Secretary’s order to discharge a serviceman is not necessarily the end of the matter. Following discharge, limited post-discharge relief is available.
      10 U.S.C. § 1552 provides :
      “(a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. Under procedures prescribed by him, the Secretary of the Treasury may in the same manner correct any military record of the Coast Guard. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.
      * sfc & * Hs
      “(c) The department concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be.
      * * * * *
      “(d) Applicable current appropriations are available to continue the pay, allowances, compensation, emoluments, and other pecuniary benefits of any person who was paid under subsection (c), and who, because of the correction of his military record, is entitled to those benefits, but for not longer than one year after the date when his record is corrected under this section if he is not reenlisted in, or appointed or reappointed to, the grade to which those payments relate. Without regard to qualifications or reenlistment, or appointment or reappointment, the Secretary concerned may reenlist a person in, or appoint or reappoint him to, the grade to which payments under this section relate.” [Emphasis added.]
      10 U.S.C. § 1553 provides :
      “(a) The Secretary concerned shall, after consulting the Administrator of Veterans’ Affairs, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative. A motion or request for review must be made within 15 years after the date of the discharge or dismissal.
      “ (b) A board established under this section may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings.
      “(c) A review by a board established under this section shall be based on the records of the armed forces concerned and such other evidence as may be presented to the board. A witness may present evidence to the board in person or by affidavit. A person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organisation recognised by the Administrator of Veterans’ Affairs under chapter 59 of title 38. As ameinded Pub.L. 87-651, Title 1, § 110(a), Sept. 7, 1962, 76 Stat. 509.” [Emphasis added.]

      . 5DN 588 Par. 37 AFR 36-12.

      . Air Force Regulation 36-12.

      . Air Force Regulation 36-12.

      . Air Force Regulation 35-6, H 4-5, effective 1 May 1974.

      . Air Force Regulation 35-6, K 4-6, effective 1 May 1974.

      . Official Air Force Correspondence 2521002 dated April, 1974.

      . Air Force Regulation 36-12.

      . Air Force Regulation 35-6, H 4-6, effective 1 May 1974.

      . This document appears to be an interim modification -which states on its face that it is “effective 1 May 1974 and pending receipt of formal printed change,” in AFM 35-6. In fact we have been supplied with what appears to be the printed change in Air Force Regulation 35-6 dated 3 July 1974, which makes it clear that the regulation change cited in the opinion for the proposition that Air Force Regulations “prescribe that reasons for the separation are to be furnished only to the serviceman” do not apply at all to an original discharge certificate. They deal only with modified discharges given at the request of an enlisted man or officer, seeking to have his previously obtained discharge certificate modified by having the SDN code numbers eliminated. We have been furnished with no regulations, so far as I am aware, that so strictly limit the giving of information as to either a narrative statement for the “reason of discharge” or the code numbers that lead inevitably to the same result.

      . There is, of course, the further substantial question whether by sucii action the Air Force can deprive this officer permanently from exercising the right common to every citizen of offering his services by way of military duty, from purely a sense of obligation, without any due process hearing. Removal of such a disqualification, which if imposed by legislative act, would be a “bill of attainder” prohibited by the Court, Art. 1, § 9, Cl. 3, might well be one of the rights, hoped to be protected by an officer permitted to appear in person before a hearing board.

      . Not a word is said in the Roth illustrations about “communication” of this stigma to the community. The Court speaks to the Board’s action as not being based on charges affecting his character. The Court, as I read its language, says that if the Board of Regents liad based its non-renewal of teacher’s contract on such a charge, “This would be a different case.” So, too, in the second quotation, the Air Force is imposing on Lt. Sims a stigma or other disability that will “foreclose(d) his freedom to take advantage of other employment opportunities”, i. e. to follow his desire to participate in the future in the reserve or National Guard programs of the Air Force, and since the state adjutant general is a recipient of the coded discharge, from any other state or military activities.

      . Here it did invoke regulations to effectively bar Sims from all public employment in the military services of the United States and of his own state.


author: PER CURIAM:

text:
    Troy Shelton ASHLEY, Donald Marvin Johns, Velmar Leroy Smith, and G. E. Crump, Plaintiffs-Appellants, v. The CITY OF MACON, GEORGIA, J. F. Flynt, Chief of Police of Said City, et al., etc., Defendants-Appellees.
    No. 74-1602.
    United States Court of Appeals, Fifth Circuit.
    Jan. 2, 1975.

      Charles Marchman, Jr., Macon, Ga., for plaintiffs-appellants.
    Lawton Miller, Jr., Lawton Miller, Sr., Macon, Ga., for defendants-appellees.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

Appellants attack as unconstitutional the regulations of the City of Macon, Georgia, Police Department limiting the length of hair of male police officers and prohibiting long sideburns, mous-taches and beards. The district court, relying on Stradley v. Andersen, 8 Cir. 1973, 478 F.2d 188, upheld the regulations. We agree with the rationale of Stradley and affirm. See Yarbrough v. City of Jacksonville, M.D.Fla., 1973, 363 F.Supp. 1176, aff’d per curiam without opinion, 5 Cir. 1974, 504 F.2d 759.

Affirmed.


author: BREITENSTEIN, Circuit Judge.

text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Santa Fe Trail Transport Company, Respondents.
    No. 74-1049.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 11, 1974.
    Decided Oct. 23, 1974.

      Harry R. Silver (Carla A. Hills, Asst. Atty. Gen., Stephen F. Eilperin, Atty., Dept, of Justice, and William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, and Stephen C. Yo-hay, Asst. Counsel for Appellate Litigation, U. S. Dept, of Labor, of counsel, with him on the brief) for petitioner.
    Allen H. Sachsel, Washington, D. C., Appellate Counsel, Occupational Safety and Health Review Commission, for respondent Commission.
    Douglas McHendrie and Grant, Shaf-roth, Toll & McHendrie, Denver, Colo., entered an appearance for respondent Santa Fe Trail Transport Co. and waived the right to file a brief and make oral argument.
    Richard C. Hotvedt, E. Carl Uehlein, Jr., and Ira M. Shepard, Washington, D. C., filed a brief for amicus curiae The Great Atlantic and Pacific Tea Co., Inc.
    Before BREITENSTEIN, SETH and McWILLIAMS, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

The Occupational Safety and Health Review Commission held that a regulation promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., was unenforceably vague. As permitted by the Act, the Secretary seeks review of the Commission order. See 29 U.S.C. § 660(b). We reverse.

After a routine inspection, the Secretary cited the employer, respondent Santa Fe Trail Transport Company, for a nonserious violation of 29 U.S.C. § 654 (a)(2). The charge was violation of a regulation, 29 CFR § 1910.151(b), which requires that a person adequately trained in first aid be available at a workplace when there is no medical facility in “near proximity.” A penalty of $30 was imposed. Employer contested the citation on the ground that the regulation was impermissibly vague. An Administrative Law Judge of the Commission, after an evidentiary hearing, upheld the regulation, found a violation, and held that no penalty should be assessed because of the “good safety record” of the employer and “the low level of gravity of those violations charged.” The matter then went to the Commission, see 29 U.S. C. § 661 (i), which in a 2 to 1 decision nullified the regulation.

This case is another episode in the continuing controversy between the Secretary and the Commission over the enforcement of the Act. The record shows no participation by the employer in the Commission’s review of the action of its judge. The Great Atlantic & Pacific Tea Company secured permission to, and did, file a brief, as amicus curiae, with the Commission attacking the regulation. In this court the arguments are made by the Secretary and the Commission. A&P has filed an amicus brief supporting the Commission. Employer has presented a statement adopting “the position” .taken by the amicus and has waived the right to file brief and make oral argument.

The Commission is an adjudicatory body with no regulatory powers. See 29 U.S.C. § 661. The Act gives enforcement and regulatory powers to the Secretary. 29 U.S.C. §§ 655, 657, and 658. The problems presented in judicial review of the Commission’s actions have been mentioned in numerous court decisions. See Brennan v. Occupational Safety and Health Review Commission, 3 Cir., 502 F.2d 946; Dale M. Madden Construction, Inc. v. Hodgson, 9 Cir., 502 F.2d 278; Brennan v. Southern Contractors Service, 5 Cir., 492 F.2d 498, 499, n. 2; and Brennan v. Occupational Safety and Health Review Commission, 5 Cir., 487 F.2d 230, 232. We decline to enter the dispute between the Secretary and the Commission over their respective powers, duties, and responsibilities under the Act. Congressional, rather than judicial, action is desirable.

Although the manner in which the case is presented indicates no more than an effort by two governmental agencies to secure an advisory opinion, employer contested the citation and has not withdrawn that contest. Employer has an interest in the controversy even though it is unwilling to do anything to protect that interest. We have a case or controversy within the purview of the Constitution, Art. Ill, § 2. See Brennan v. Occupational Safety and Health Commission, 3 Cir., 502 F.2d 946. Accordingly, we turn to the merits.

The purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651 (b). Each employer shall comply with the occupational safety and health standards and with the regulations promulgated by the Secretary. § 654(a)(2). The Secretary shall promulgate as an occupational safety or health standard “any national consensus standard, and any established Federal standard” unless he finds that any such standard would not result in improved safety or health for employees. § 655. Interested parties may object to a proposed standard, § 655(b), and provision is made for temporary variance from a standard, Ibid. The record does not show any objection to the standard when proposed, or request to the Secretary for a variance from the standard.

The standards promulgated appear as Part 1910, 29 CFR. This Part contains occupational safety and health standards which have been found to be “national consensus standards or established Federal standards.” 29 CFR § 1910.1(b). Employer is charged with violation of 29 CFR § 1910.151(b) which reads:

“In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.”

The issue is whether the phrase “near proximity” is impermissibly vague.

Respondent Santa Fe is covered by the Act because it is engaged in a business affecting commerce. See 29 U.S.C. § 652(3) and (5). It has over 170 employees at its freight handling terminal in Kansas City, Kansas. The workplace is operated 24 hours a day on a three-shift basis. The employees are engaged in the handling of freight and related activities. No person adequately trained in first aid is provided at the workplace. The facilities available to employees requiring medical assistance are the following with the distance and optimum travel time given as to each:

Providence Hospital — 3.25 miles and 7 minutes
Margaret’s Hospital — 4 miles and 10 minutes
Bethany Hospital — 4.1 miles and 10 minutes
A clinic open 8 a. m. to 5 p. m. 5.5 days a week — 2 miles and 4 minutes.

In addition there is available an ambulance service driven by personnel trained in first aid that could reach the workplace in 4 minutes under optimum conditions. The times given would be substantially increased by adverse traffic or weather conditions. In the period 1968-1971 employees at the workplace sustained 117 reported work-related injuries. In serious accidents causing severe bleeding or breath stoppage first aid, to be effective, must be administered within 3 minutes.

The decision of the Commission, - OSAHRC -, pointed out a disparity among the Secretary’s area directors in the application of the standard and said:

“Under the circumstances we conclude that the standard can be applied at the whim of local area directors, that it does not convey a sufficiently definite warning, and that it is unenforceable for being unreasonable by virtue of its vagueness.”

The dissenting Commissioner commented that “[frequently, a standard must have sufficient latitude to encompass various employers with their own peculiar locations and circumstances,” and said:

“It is improper for the Commission to ‘void’ a standard which has been duly adopted at the express direction of the Congress and which has a valid purpose consistent with the overall intent of the Act.”

A statute which is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322. This rule applies to regulations. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367. We are not concerned with the definition of a crime or with an inhibition on the exercise of First Amendment rights. Cases presenting those problems are not controlling here. See e. g. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (antinoise ordinance); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (vagrancy ordinance); Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (criminal libel); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (picketing); and Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (state minimum wage law).

We are considering a regulation promulgated pursuant to remedial civil legislation, Ryder Truck Lines, Inc. v. Brennan, 5 Cir., 497 F.2d 230, 233, and must do so “in the light of the conduct to which it is applied.” United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 600, 9 L.Ed.2d 561. The question is whether -the regulation “delineates its reach in words of common understanding.” Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182. A permissible “leeway” is allowed in the field of regulatory statutes governing business activities in narrow categories. Papachristou, 405 U.S. at 162, 92 S.Ct. 839.

The phrase “near proximity” is redundant but emphasizes the desirability of prompt assistance when an injury occurs. Any specific delineation would present a myriad of complications. A workplace can be in either an urban or a rural area. Geographical distance differs from travel distance. Travel time depends on traffic and weather. The injury rate is related to size of the work force and the nature of the work done. No forecast can be made of the incidence of injuries which require immediate aid.

The standard furthers .the objectives of the Act. The statement in 29 CFR § 1910.1(b) that the standards are “national consensus standards or established Federal standards” is not contested on this appeal. The Constitution does not require impossible standards. United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 91 L.Ed. 1877.

The Commission made no effort to apply the standard to the facts of the proceeding before it. Instead it considered the problem as an abstraction of which it did not approve. A standard designed to protect workers by provision for prompt treatment of injuries requires flexibility rather than specificity. The standard furthers the intent of the Act by recognizing “a common social duty,” see Cline v. Frink Dairy Company, 274 U.S. 445, 464, 47 S.Ct. 681, 71 L.Ed. 1146, governed by .the “reasonable man” concept. This test has been applied by the Commission in regard to other standards. See Ryder Truck Lines, Inc. v. Brennan, 5 Cir., 497 F.2d 230, 233. In the light of the facts presented by this record, the application of .the standard was reasonable. We decline to consider hypothetical situations where the result might be otherwise.

Reversed.