author: JAMESON, District Judge: SPOTTSWOOD W. ROBINSON, III, Circuit Judge

text:
    Anna MASSZONIA et al., Appellants, v. Walter E. WASHINGTON et al., Appellees.
    No. 71-1164.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 13, 1972.
    Decided Feb. 27, 1973.

      Marsha A. Quintana, Washington, D. C., with whom Samuel B. Abbott, Boston, Mass., was on the brief for appellants.
    David P. Sutton, Asst. Corporation Counsel, D. C., with whom C. Francis Murphy, Corporation Counsel, D. C., and Richard W. Barton, Washington, D. C., were on the brief, for appellees.
    Before BAZELON, Chief Judge, ROBINSON, Circuit Judge and JAMESON, Senior District Judge for the District of Montana.

       Sitting by designation pursuant to the provisions of Title 28 U.S.C. § 294(d).

   JAMESON, District Judge:

This is an appeal from an order denying a motion for a preliminary injunction and the appointment of a receiver ancillary thereto. The order of the district court entered January 26, 1971, 321 F.Supp. 965, contains detailed findings of fact which are not questioned on this appeal. Two issues are presented: (1) whether the district court erred in denying the motion, and (2) whether by reason of events intervening since the order was entered the case has become moot and should be dismissed.

Factual Background

The appellant Anna Masszonia, a disabled, low-income, welfare recipient, was tenant in a Washington, D. C. substandard apartment complex owned by ABC Realty Co., Inc. From 1961 through 1967 ABC Realty operated the complex under a license issued by the Department of Licenses and Inspections for the District of Columbia, without, however, applying for Certificate of Occupancy. Because of unabated housing regulation violations, applications for a renewal of the license for 1968 and subsequent years were denied on February 3, 1970, and the denials were sustained by the District of Columbia Board of Appeals and Review on May 20, 1970.

.On February 26, 1970 a tenant commenced a class action against ABC Realty seeking to recover rents from 1961. Some of the tenants began withholding their rent while others continued paying rent until their June, 1970 rent payment was returned to them. About the time the action was commenced ABC Realty ceased to pay water, gas and electricity bills for the complex, which resulted in termination of water service on May 19, 1970 and threatened termination of gas and electricity.

This class action was filed May 22, 1970 by appellant Masszonia on her own behalf and on the behalf of all tenants similarly situated against Walter E. Washington, Commissioner of the District; the Water Registrar of the District; and the president of ABC Realty, seeking equitable relief that the utilities be continued. In amended complaints ABC Realty and the two utilities were added as defendants.

By order entered July 29, 1970 (opinion at 315 F.Supp. 529) the Commissioner and his subordinates were enjoined from refusing to provide water and sewer service and from refusing to enter into contracts with the utilities to provide gas and electricity, pendente lite, so long as the tenants lawfully occupied the premises, the court holding that it was the duty of the District of Columbia under District of Columbia Code, Section 5-313 (1967) to provide these services on a temporary and emergency basis.

Between July 24 and July 27, 1970 the District served the tenants with orders to vacate the premises by August 3, 1970. On August 3 the district court enjoined the Commissioner and his subordinates from prosecuting any tenant for failure or refusal to vacate his apartment, and ordered the Commissioner to provide relocation services to the tenants within two weeks.

On August 14, 1970 the appellant Masszonia moved for a preliminary injunction under a supplemental complaint, seeking the appointment of a receiver and an order requiring the Commissioner to make necessary repairs and assess a tax on the property for the costs.

Order of January 26,1971

The order of January 26, 1971 enjoins appellees, pending appeal, from prosecuting or attempting to evict any tenant and requires appellees, pending appeal, to furnish utility services and provide the tenants with relocation services. The court refused to appoint a receiver and refused to order appellees to make the repairs sought by appellants.

The order of January 26, 1971 adhered to the court’s conclusion in the July 29, 1970 order that “where low-income tenants who cannot immediately relocate face the imminent failure of essential utility services which are the landlord’s responsibility, and the landlord is beyond the effective power of the Court, it is the duty of the District of Columbia under District of Columbia Code, Section 5-313 (1967) to provide these services on a temporary and emergency basis.”

The court held further that Section 5-313 “confers only a discretionary authority upon the Commissioner” to correct conditions existing in violation of law or regulation, and the court could not hold as a matter of law “that it would be an abuse of that discretion to fail to provide those utilities on a permanent, continuing basis or to fail to make the extensive repairs sought in this Motion for a Preliminary Injunction, the ultimate, permanent relief sought in the Supplemental Complaint.”

Events Subsequent to January 26, 1971 Order

On April 19, 1971 (after the record and appellants’ brief had been filed in this court) appellant Masszonia filed in the district court a “motion to modify the injunction pending appeal entered January 26, 1971” to order the defendant Washington to terminate the utility services and secure the buildings at 1401 and 1405 Girard Street, N.W., and to require proper securing of the buildings at 2804 Fourteenth St., N.W. in compliance with the January 26, 1971 order.

Pursuant to this motion, the district court on April 22, 1971 ordered the Commissioner “to immediately secure the premises at 2804 Fourteenth Street, N.W. to prevent further access thereto * * * ”, to terminate the utilities at 1401-1405 Girard Street, N.W., and to “proceed immediately to make said premises secure by boarding up basement and first floor doors and windows and blocking fire escapes.” The Commissioner was also authorized to proceed with normal condemnation procedures with respect to the premises at 2804 Fourteenth Street, N.W. He was “enjoined to take no other or further action in any way affecting the premises at 1401 and 1405 Girard Street, N.W., without further order” of the court.

On June 29, 1971 the district court, upon the motion of plaintiffs, vacated nunc pro tunc as of January 26, 1971 the paragraph of the January 26 order requiring the deposit of plaintiffs’ public assistance rent allotments into the Registry of the Court.

Issue of Mootness

Subsequent to oral argument, appellees filed a “Suggestion of Mootness”, with supporting affidavits, from which it appears that following the order of April 22, 1971 the premises at 2804 Fourteenth Street, N.W. were condemned and razed, and the premises at 1401-1405 Girard Street, N.W. were barricaded; that the Girard Street property has not since been inhabited, and is “uninhabitable by reason of its insanitary and structurally defective condition;” and that all tenants seeking assistance were relocated.

Appellees contend that “against this background”, the “appellants have effectively abandoned the plainly uninhabitable Girard Street property, without likelihood or right of return and that they currently have no possessory interest in that property.” Accordingly they argue that the case should be remanded to the district court with directions to vacate its order of January 26, 1971 and to dismiss the case as moot.

In her original and supplemental complaints and motion for a preliminary injunction, appellant Masszonia seeks an injunction which would require the Commissioner to (1) provide utilities on a permanent, continuing basis and (2) make whatever repairs might be necessary to bring the three buildings into compliance with the housing regulations. Ancillary thereto appellants seek the appointment of a receiver to take charge of the property and manage it, pendente lite. When the complaint was filed 66 units of the apartment complex were occupied. All were vacated prior to the district court’s order of April 22, 1971. Subsequent thereto the building at 2804 Fourteenth Street, N.W. was demolished, as authorized in the April 22 order. Under this order, however, the Commissioner was enjoined “to take no other or further action in any way affecting the premises at 1401 and 1405 Girard Street, N.W. without further order” of the court. If the district court finds, as stated in appellees’ affidavits, that these premises are now uninhabitable, barricaded, and scheduled for demolition, it would appear that the district court should revoke this provision of the April 22 order and dismiss the action as moot.

We conclude that the questions here on appeal have become moot and do not reach the merits of the controversy.

This appeal is dismissed as moot and the case is remanded to the district court for further proceedings consistent with this opinion.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge

(dissenting in part):

With the appeal now moot, and resultantly the need for its dismissal plain, the sole question remaining for our decision is the disposition which the District Court is to make of its order of January 26, 1971, to aspects of which the appeal is exclusively addressed. My views on this phase of the case differ significantly from those of my colleagues. I think appellees’ request that we direct the District Court to vacate the order should be denied as to the portions thereof which were not subjected to the appeal. But I also think United States v. Munsingwear, Inc., to which this circuit has long adhered, requires vacation of so much of the order as appellants sought to have us review. The court’s disposition of the present appeal leaves the order intact and that, I believe, is a clear departure from the wholesome practice which Munsingwear approved and which this court has adopted as its own. From such a disposition, I must respectfully dissent.

I

As Munsingwear reveals, the Supreme Court’s “established practice in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending . decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” The objective of this procedure, the Court explains, is to “clear [] the path for future relitigation of the issues between the parties and eliminate [] a judgment, review of which was prevented through happenstance.” Thus, “[w]hen that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme [is] only preliminary.”

The practice noted in Munsingwear has found frequent acceptance in the federal circuits. In this jurisdiction, we have taken Munsingwear as a mandate. In Acheson v. Droesse, decided shortly after Munsingwear, we read the latter as “apparently intended by the Supreme Court to announce a rule for the guidance of the United States Courts of Appeals in disposing of cases which become moot pending appeal.” “[T]he language of the Supreme Court in the Munsingwear case,” we said, “clearly directs the Courts of Appeals that in all civil cases in the United States courts which become moot pending appeal, and in which a motion to dismiss as moot is accompanied by a motion, to direct that the judgment below be vacated, both motions should be granted.” And down through the years since Acheson, we have consistently adhered to that understanding.

The opinion in Munsingwear makes clear, however, that a party ordinarily entitled to the relief Munsingwear affords may debar himself from obtaining it. There the Government had filed a two-count complaint against Munsingwear alleging violations of a regulation establishing maximum prices for commodities which it sold. The first count sought an injunction, and the second treble damages; and, by agreement and an order of the court, proceedings on the second count were held in abeyance pending final determination of the first-count claim for injunction. A similar arrangement was made in a separate suit for treble damages raising the same issues for a different period. The District Court held that the questioned prices complied with the regulation and entered a judgment of dismissal. The Government appealed, and during the pendency of the appeal the involved commodity was decontrolled. On Munsingwear’s motion, the Court of Appeals dismissed the appeal for mootness, making no provision for vacation of the District Court’s judgment. Munsingwear then moved in the District Court for dismissal of the treble damage claims on the ground that the unreversed judgment of that court on the injunction phase was res judicata of those claims. The District Court granted the motion, the Court of Appeals affirmed, and the case then went to the Supreme Court.

As the Court stated, had the Government insisted upon vacation of the District Court’s judgment when the Court of Appeals dismissed the appeal for mootness, it would have been entitled to a direction to that effect. But the Government did not pursue that course; it made no motion to vacate the judgment, but simply acquiesced in the dismissal. Consequently, the Court held, it was not entitled to relief — -in the form of an exception to the doctrine of res judicata — from the District Court’s judgment.

It is against this backdrop that the disposition appropriate to the case at bar is to be fashioned. One question to be addressed is whether the situation presented falls within the general ambit of the Munsingwear doctrine. Another is whether the parties on either side of this appeal have disabled themselves from sharing in the benefits Munsingwear confers. To a consideration of these I now proceed.

II

The order subjected to this appeal— the order of January 26, 1971— favored appellants in some respects and appellees in others. To appellants’ detriment, it rejected the demand that the court direct repairs putting the premises in suit in habitable condition through the medium of a receivership or by imposition of that responsibility upon appellees. It was the refusal to grant the request in either alternative that appellants sought to have altered on this appeal. Now that the appeal must be dismissed for mootness, their entitlement under Munsingwear to vacation of those portions of the January 26 order appealed would normally follow. In my view, indeed it does.

I am mindful of the fact that appellants here, like the Government in Munsingwear, have not requested vacation of any part of the order, but that, I think, could hardly justify us in ignoring the teachings of Munsingwear. Long before Munsingwear was decided, the Supreme Court declared that the practice it was later to describe in Munsingwear was “the duty of the appellate court.” To such a duty Munsingwear took pains to itself advert. As a judge, I endeavor to discharge what by higher authority I am told is my plain duty whether I am asked by litigants to do so or not. I perceive no obstacle to discharge of our Munsingwear duty here simply because the court reviewed in Munsingwear omitted a response to it there. In sum, I would abide Munsingwear sua sponte.

I am mindful, too, that relitigation of the issues on which appellants lost in the District Court seems unlikely, but that does not argue effectively against an application of Munsingwear. That very consideration was advanced to us in Aeheson v. Droesse, where it was urged that we distinguish Munsingwear on that basis. We declined the invitation, pointing out that “among the cases cited by the Supreme Court in the” Munsingwear opinion “there are instances in which there was no possibility of further litigation of the issues between the parties in the case on appeal even arising, and yet the Court ordered the lower court’s judgment vacated.” The fact of the matter is that offtimes courts are not in position to know whether the controversy has ground to a definite halt or not, and this case is no exception. The better part of justice is to liberate the parties from the shackles of res judicata rather than hazard a guess as to what the future may hold.

Turning now to appellees’ motion that the January 26 order be vacated in its entirety, that relief in their favor is neither warranted nor possible. The appeal in this case brought before us for review only the parts of the order appellants complained of — the provisions which were unfavorable to them. Since appellees took no appeal from that order, two consequences disastrous to their request follow. In the first place, the unappealed portions of the order have long since become final, and we now lack jurisdiction to disturb them. In the second place, the Munsingwear doctrine was never intended to afford protection to parties in the position occupied by appellees. Their evident objective is to avoid the conelusiveness of the declaration of principles representing appellants’ partial victory in the District Court. But obviously, as an eminent author has stated, “[i]t would be quite destructive of the principle of judicial finality to put such a litigant in a position to destroy the collateral eonclusiveness of a judgment by destroying his own right to appeal.” Nothing in Munsingwear supports such an approach; rather, the rule is well settled that the operation of the doctrine of res judicata is unaffected by the fact that the party sought to be concluded did not appeal from the adversity wrought by the judgment. The situation as to appellees is not one in which the January 26 order should at their behest be vacated in toto “to prevent a judgment, unreviewable because of mootness,” as distinguished from failure to appeal, “from spawning any legal consequences.” It is only as to the rulings against appellants which have since become “unreviewable because of mootness . ” that vacation is called for, but as to them the call, in my view, is clear.

      . The complex consisted of three six-story apartments located at 2804 Fourteenth Street, N.W., and 1401 and 1405 Girard Street, N.W. Approximately 66 units were occupied at the outset of this litigation.

      . The court found' that a “substantial number of housing regulation violations” had been noted from 1966 to July 21, 1970, when 1,053 unabated violations were noted in the three building complex, the violations consisting of “leaking ceilings, falling plaster, broken windows, inadequate locks, absence of shades and screens, backed-up and broken plumbing fixtures, insufficient heat and hot water, holes in walls, accumulations of trash, rats and roaches” which were “so numerous, extensive and substantial that the buildings constitute a danger to the health and safety of the occupants.” 321 F.Supp. at 968.

      . Mitchell v. ABC Realty Co., Civil Action No. GS 3522-70 District of Columbia Court of General Sessions.

      . The court found that ABO Realty had been served with all pleadings but had not entered an appearance. The court found further, however, that personal service had not been effected on its president and registered agent and that attempts to locate its officers had failed. 321 F.Supp. at 967.

      . The action was dismissed as to the two utilities. 315 F.Supp. 529, 530-531. At 533, the court noted that “the District may recoup any money expended for providing utilities by assessing a tax against the property. It may of course, also recoup by levying fines against the owner.”

      . Appellees are the Commissioner and the Water Registrar of the District of Columbia. As noted stipra (Note 4), ABC Realty, Inc. and Lyman C. Delle, its president, were not personally served and did not enter an appearance. Nor have they participated in this appeal. Their liability to the tenants and to the District of Columbia is not before this court. On the merits, this appeal concerns solely the duty of the District of Columbia to appellants to act upon the failure of ABC to correct conditions existing in violation of the law.

      . 321 F.Supp: at 970.

      . Section 5-313, D.C.Code 1967, provides that when the owner of real property fails or refuses after reasonable notice to correct conditions existing in violation of law or regulation, “the commissioners of the District of Columbia may, and they are authorized to, cause such conditions to be corrected; assess the cost of correcting such conditions and all expenses incident thereto * * * as a tax against the property on which such condition existed * * * and carry such tax on the regular tax rolls of the District, and collect such tax in the same manner as general taxes in said District are collected * *

      . 321 F.Supp. at 971.

      . Appellant also sought an order that ABC take no action, pendente lite, to interfere with the “continued assertion of plaintiff’s — and the class she represents — leasehold interest in the premises.” The motion alleges in part:
      “It is asserted, therefore, to allow the buildings to be preserved, pendente lite, and in fear for their lives that plaintiff, and others in the class she represents, vacate involuntarily and without any relinquishment of their legal tenancies.
      “Plaintiff represents, to the best of her knowledge, that temporary relocation services are being provided tenants of the complex by the Redevelopment Land Agency.”
      As set forth in Note 6, we are not here concerned with any claim appellants may have against ABC Realty Co.

      . Supporting affidavits indicate also that District authorities will recommend that the Girard Street property be condemned when the order of April 22, 1971 is vacated, and that in December, 1971 the area in which these buildings are located was added to the Neighborhood Development Program and designated for demolition.

      . With respect to appellant Masszonia, the affidavit of the Assistant Executive Director, Office of Relocation and Administration, recites that Mrs. Masszonia “moved to an address unknown on May 17, 1971. Various efforts had been made to relocate Mrs. Masszonia to standard housing, but she expressed plans to move on her own.”

      . In oral argument counsel for appellees relied heavily on the contention that the case is moot. Appellees were granted leave to file a motion to dismiss on that ground, and appellants were granted time for a reply. The motion and supporting memorandum and affidavits were filed by appellees. Appellants have not responded. In the absence of counter affidavits or other response, we accept as true the facts set forth in appellees’ affidavits.

      . As noted supra, the order of April 22, 1970 was entered after the appeal was taken to this court. In view of our disposition of the appeal it is unnecessary to consider the effect of this order or whether the district court was authorized to enter the order after the appeal was taken from the prior order.

      . Those provisions of the orders favorable to appellants, from which no appeal was taken, have been complied with or are no longer effective by reason of appellants’ abandonment of the property. All relief sought by appellants was based upon their occupancy of the property. If the affidavits filed by appellees are found by the district court to be true, nothing now remains to be litigated.

      . Mootness follows, not necessarily from appellants’ involuntary vacation of their apartments, see Robinson v. Diamond Housing Corp., 139 U.S.App.D.C. 339, 433 F.2d 497 (1970), reviewed on the merits, 150 U.S.App.D.C. 17, 463 F.2d 853 (1972); cf. Gaddis v. Dixie Realty Co., 136 U.S.App.D.C. 403, 420 F.2d 245 (1969), but from the impossibility, under the circumstances described in the majority opinion, of their ever regaining occupancy.

      . 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).

      . Id. at 39, 71 S.Ct. at 106 (footnote omitted).

      . Id. at 40, 71 S.Ct. at 107.

      . Id.

      . See Lumus Co. v. Commonwealth Oil Ref. Co., 280 E.2d 915, 931-932 (1st Cir.), cert. denied, 364 U.S. 911, 81 S.Ct. 274, 5 L.Ed.2d 225 (1960); Bodkin v. United States, 226 F.2d 55, 56 (2d Cir. 1959); Industrial Dev. Co. v. Thompson, 231 F.2d 825, 828-829 (8th Cir. 1956); Sawyer v. Pioneer Mill Co., 300 F.2d 200, 201-202 (9th Cir.), cert. denied, 371 U.S. 814, 83 S.Ct. 24, 9 L.Ed.2d 55 (1962).

      . 90 U.S.App.D.C. 143, 197 F.2d 574 (1952).

      . Id. at 146, 197 F.2d at 577.

      . Id. at 147, 197 F.2d at 578. See text, infra at notes 19-22.

      . See Schoop v. Mitchell, 143 U.S.App.D.C. 405, 406, 444 F.2d 863, 864, cert. denied, 402 U.S. 988, 91 S.Ct. 1663, 29 L.Ed.2d 154 (1971); Cadillac Pub. Co. v. Summerfield, 105 U.S.App.D.C. 343, 344, 267 F.2d 620, 621 (1958); Anderson v. Morgan, 105 U.S.App.D.C. 66, 67, 263 F.2d 903, 904, cert. denied, 361 U.S. 846, 80 S.Ct. 99, 4 L.Ed.2d 84 (1959); Dulles v. Nathan, 96 U.S.App.D.C. 190, 192, 225 F.2d 29, 31 (1955).

      . Bowles v. Munsingwear, Inc., 63 F.Supp. 933, 938 (D.Minn.1945).

      . Fleming v. Munsingwear, Inc., 162 F.2d 125, 127-128 (8th Cir. 1947).

      . United States v. Munsingwear, Inc., 178 F.2d 204 (8th Cir. 1949).

      . United States v. Munsingwear, Inc., supra note 2.

      . 340 U.S. at 40, 71 S.Ct. 104.

      . Id. at 40-41, 71 S.Ct. 104.

      . Masszonia v. Washington, 321 F.Supp. 965 (D.D.C.1971).

      . Id. at 970-971.

      . See text supra at notes 15-16.

      . “Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the case with directions to dismiss.” Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 205, 81 L.Ed. 178 (1936) (Citations omitted).

      . United States v. Munsingwear, Inc., supra note 2, 340 U.S. at 39-40, 71 S.Ct. 104.

      . It will be noted that it was the Court of Appeals, Fleming v. Munsingwear, Inc., supra note 12, 162 F.2d at 127-128, not the Supreme Court, that dismissed the appeal without vacating the judgment appealed from.

      . Supra note 7.

      . 90 U.S.App.D.C. at 146-147, 197 F.2d at 576-577.

      . See United States v. Munsingwear, Inc., supra note 2, 340 U.S. at 39-40 n. 2, 71 S.Ct. at 106.

      . Acheson v. Droesse, supra note 7, 90 U.S.App.D.C. at 147, 197 F.2d at 577. The cases to which we referred were Brownlow v. Schwarts, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620 (1923), and Berry v. Davis, 242 U.S. 468, 37 S.Ct. 208, 61 L.Ed. 441 (1917).

      . While appellants have thus far invoked only' equitable remedies, the possibility of relief of a different character is not foreclosed. And, as the District Court’s findings vividly attest, there is much that can be complained about. The apartment complex in which they resided was permitted to operate for eight years without a certificate of occupancy, and for two years within an apartment house license, Masszonia v. Washington, 315 F.Supp. 529, 531-532 (D.D.C.1970); Masszonia v. Washington, supra note 17, 321 F.Supp. at 967, and during those periods the premises deteriorated appallingly. In the words of the District Court, “ [a]s of May, 1970, the housing inspectors noted over 1,000 violations of the Housing Code on the premises in question, reflecting the general intolerable conditions that have existed for many years, unattended and unabated. ... In addition, the owner's rental of these structures was apparently contrary to law, and the authorities, who were aware of the situation, tolerated noncompliance.” Masszonia v. Washington, supra, 315 F.Supp. at 531. See also Masszonia v. Washington, supra note 17, 321 F.Supp. at 968. “These violations,” the court was later to add, “are so numerous, extensive and substantial that the buildings constitute a danger to the health and safety of the occupants.” Masszonia v. Washington, supra, note 17, 321 F.Supp. at 968.
      Even after the premises degenerated to this unsavory condition, the occupants’ woes continued to increase. The corporate landlord walked out on the 66 families then residing in the complex and the corporate officers could not be located. Id. at 967. But for the intervention of the District Court, the occupants would have been without basic utility services from mid-1970 onward. See Masszonia v. Washington, supra, 315 F.Supp. at 532-533. Matters finally worsened to the point that they had no choice but to move out.
      The original and primary transgression producing this shameful state of affairs was the landlord’s. But those legally charged with the duty of supervising leased housing in the District of Columbia do not appear to be free from blame. In this very litigation, “[t]he Corporation Counsel . . . point[ed] out that there are perhaps some 100,000 persons living in the District under conditions quite comparable to those which this complaint portrays.” Masszonia v. Washington, supra, 315 F.Supp. at 532. “Enforcement of the housing laws and regulations,” the court declared, “would have prevented the present situation from arising.” Id.

      The consequences of this lack of enforcement have fallen upon the group most dependent upon their local government for protection, for, as the District Court found, the named plaintiff in the litigation is “a disabled, low income welfare recipient, representing a class that is best described as generally Tow income with at least twenty-six (26) public assistance recipients. . . . ” Masszonia v. Washington, supra note 17, 321 F.Supp. at 966.
      In these circumstances, T cannot say that these hapless victims of official indifference would not have justiciable complaints against the public servants responsible for their plight. My colleagues, however, leave standing the adverse rulings of the District Court which appellants endeavored to have reviewed on this appeal. Since I am unable to say that those rulings might not bar any effort undertaken hereafter, I would vacate them.

      . See Fed.R.App.P. 4(a). See also cases cited infra note 29.

      . Hodgson v. United Mine Workers, 153 U.S.App.D.C. 405 at 413, 473 F.2d 118 at 124 (1972); Weedon v. Gaden, 136 U.S.App.D.C. 1, 5, 419 F.2d 303, 307 (1969); Lord v. Helmandollar, 121 U.S.App.D.C. 168, 170, 348 F.2d 780, 782 (1965), cert. denied, 383 U.S. 928, 86 S.Ct. 929, 15 L.Ed.2d 847 (1966); Whitehead v. American Sec. & Trust Co., 109 U.S.App.D.C. 202, 206, 285 F.2d 282, 286 (1961); Slater v. Peyser, 91 U.S.App.D.C. 314, 315, 200 F.2d 360, 361 (1952); Randolph v. Randolph, 91 U.S.App.D.C. 170, 172, 198 F.2d 956, 958 (1952).

      . See Masszonia v. Washington, supra note 17, 321 F.Supp. at 970-971.

      . IB Moore, Federal Practice ¶ 0.416 [6] at 2327 (2d ed. 1965).

      . United States v. Munsingwear, Inc., supra note 2, 340 U.S. at 39, 41, 71 S.Ct. 104; Angel v. Bullington, 330 U.S. 183, 189-190, 67 S.Ct. 657, 91 L.Ed. 832 (1947); Hubbell v. United States, 171 U.S. 203, 206-209, 18 S.Ct. 828, 43 L.Ed. 136 (1898); Wilson’s Ex’r v. Deen, 121 U.S. 525, 532-534, 7 S.Ct. 1004, 30 L.Ed. 980 (1887).

      . United States v. Munsingwear, Inc., supra note 2, 340 U.S. at 41, 71 S.Ct. 104, 107.

      . Id.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Harriet K. BROOKS et al., Petitioners, v. The ATOMIC ENERGY COMMISSION and United States of America, Respondents, Indiana & Michigan Electric Company and Indiana & Michigan Power Company, Intervenors.
    No. 72-2177.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 14, 1973.
    Decided March 8, 1973.
    Rehearing Denied April 13, 1973.
    Lewis D. Drain, Grand Rapids, Mich., for petitioners with whom Myron M. Cherry, Chicago, Ill., was on the pleadings for petitioners.
    Jerome Nelson, Sol. U. S. A. E. C., for respondents with whom Edmund B. Clark, Atty., Dept, of Justice, was on the response for respondents.
    Gerald Charnoff, Washington, D. C., for intervenors, Indiana & Michigan Electric Co. and Indiana & Michigan Power Co., with whom Jay E. Silberg, Washington, D. C., was on the response for intervenors.

      Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and MacKINNON, Circuit Judge.
   PER CURIAM:

On March 25, 1969, the Atomic Energy Commission issued two provisional construction permits to the Indiana and Michigan Electric Company and the Indiana and Michigan Power Company (hereinafter Companies) for construction of Units 1 and 2 of the Donald C. Cook Nuclear Plant. In accordance with section 185 of the Atomic Energy Act the construction permits for the-two units stated the earliest and latest dates for the completion of construction. On October 10, 1972, the companies requested an extension of the latest permit completion date on both permits, citing bad weather, unexpected labor troubles and delay due to the redesign of certain reactor containment components. The Commission, on October 26, 1972, without notice or opportunity for hearing, entered an order extending the latest completion dates in the two construction permits as requested by the companies. Petitioners, persons who live and/or own property on Lake Michigan near the construction site of the Cook nuclear facility, claim, under several different theories, that they were entitled to notice and a hearing before the Commission summarily extended the construction permit completion dates. Petitioners ask that we reverse the Commission’s Order of October 26, 1972. For the reasons stated below, we grant summary reversal and order that the Commission promptly afford petitioners a hearing on the issue of the extension of the permit completion dates. We decline to order the suspensión of construction as requested by petitioners under the circumstances of tfhis case.

In order fully to appreciate petitioners’ argument, it is necessary briefly to outline the action taken by the Commission with respect to the Cook nuclear facility in response to this Court’s decision in Calvert Cliffs’ Coordinating Committee, Inc. v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). On June 29, 1972, the Commission published in the Federal Register a Notice of Consideration of Issuance of Facility Operating Licenses and Notice of Opportunity for Hearing. This notice provided that interested persons could request a hearing:

(1) with respect to whether, considering those matters covered by appendix D to 10 CFR Part 50, the provisional construction permits should be continued, modified, terminated, or appropriately conditioned to protect environmental values; and (2) with respect to the issuance of the facility operating licenses.

Petitioners, on July 28, 1972, filed a timely response to this notice requesting leave to intervene, and an opportunity for hearing, with respect to both the continuation, modification, or termination of the construction permits and the issuance of the facility operating licenses. On September 29, 1972, the Commission issued a memorandum opinion and order which stated that a hearing would be held on the applications for the issuance of operating licenses. The order admitted petitioners as parties to the operating license proceeding but inexplicably failed to advert to the noticed section C proceedings concerning the required NEPA review of the construction permits.

We believe that petitioners are correct in contending that, apart from the full environmental review of the construction permits mandated by the NEPA regulations, 10 C.F.R. Part 50, App. D, Section C, they should have been afforded the opportunity for a hearing on the extension of the permit completion dates. Section 189(a) of the Atomic Energy Act provides, as amended:

In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. . In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an operating license or an amendment to a construction permit or an amendment to an operating license without a hearing, but upon thirty days’ notice and publication once in the Federal Register of its intent to do so. The Commission may dispense with such thirty days’ notice and publication with respect to any application for an amendment to a construction permit or an amendment to an operating license upon a determination by the Commission that the amendment involves no significant hazards consideration.

The language of this section clearly seems to require that the Commission grant a hearing upon the request of any interested person in a proceeding amending a construction permit. The Commission and the Companies do not argue that the extension of the permit completion dates was not an amendment of the construction permit; they argue instead that the last two sentences of section 189(a), added to the section in 1962, indicate Congressional intent to dispense with hearings in construction permit amendment proceedings in the absence of a request therefor or when the Commission determines that the amendment'involves “no significant hazards consideration.”

First of all, the Commission’s Order of October 26, 1972, extending the permit completion dates, gives no indication whatsoever that the amendment involved no significant hazards consideration. Where one of the reasons given by the Companies in requesting an extension is the necessity for redesign of certain reactor containment components, the Commission must surely make the required significant hazards determination, and note such determination in its order, if it intends to put forward such determination as the basis for its denial of a hearing. The necessity for administrative agencies to provide a statement of reasons, especially in cases such as this where the public interest demands close scrutiny of agency action, is a fundamental principle of administrative law.

Secondly, and perhaps more to the point, the legislative history of the 1962 amendments indicates that it was Congress’ intent to lessen "the mandatory hearing requirement only when there was no request for a hearing. Both the Senate and House Reports contain the following language:

Under this plan, the issuance of amendments to such construction permits . . . would be only after a 30-day public notice and an offer of hearing. In the absence of a request for a hearing, issuance of an amendment to a construction permit . . . would be possible without formal proceedings.

It is altogether untenable to argue that petitioners made no formal request for a hearing on the amendment of the construction permit, and therefore the Commission did not err in issuing the order without notice and hearing. The 30-day public notice required by section 189(a) must, of course, precede the Commission’s action since the obvious purpose of such notice is to allow interested persons, such as petitioners, to decide whether they desire to exercise their statutory right and request a hearing. Indeed, the Senate and House Reports make this amply clear by stating that any regulatory action which takes place after the initial issuance of the construction permit “will take place only upon publication and sufficient advance notice to afford an interested party the opportunity to intervene.” Certainly logic compels the conclusion, as Congress recognized, that one may not timely request a hearing if he lacks notice that the Commission is about to take action. Especially, in a case such as this one, where petitioners had already formally expressed their interest in the continuation or modification of the construction permit by requesting intervention in the section C proceedings, elementary fairness as well as the clear language of section 189(a), demands that the Commission afford notice and an opportunity for hearing before extending the completion dates of the construction permits.

Accordingly, petitioners’ motion for summary reversal is granted to the extent that the Commission is ordered promptly to afford the petitioners, and any other interested persons, an opportunity for hearing on the question of whether the Companies have shown “good cause” for extension of the permit completion dates. The continuing validity of the amendment of the construction permit is made subject to the outcome of a hearing on this issue.

      . 42 U.S.C. § 2235.

      . This Order by the Commission was published in the Federal Register on November 2, 1972. 37 Fed.Reg. 23373. Section 185 of the Atomic Energy Act of 1954, 42 U.S.C. § 2235, provides that if construction is not completed by the latest completion date, the construction permit shall expire, and all rights thereunder be forfeited, “unless upon good cause shown, the Commission extends the completion date.” The Commission’s own regulations provide that all rights under the construction permit shall be forfeited if the facility is not completed by the latest completion date unless the Commission extends the completion date “upon good cause shown.” 10 C.F.R. § 50.55(b).

      . The Commission’s regulations implementing the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., are found in 10 C.F.R. Part 50, Appendix D.

      . 37 Fed.Reg. 12866.

      . Id. Section C of Appendix D to 10 C.F.R. Part 50 provides, in compliance with this Court’s decision in Calvert Cliffs’ Coordinating Committee v. AEC, supra at 1128, that a full NEPA review be conducted to determine whether construction permits issued prior to the effective date of NEPA, as were those in this case, should be continued, modified, terminated, or appropriately conditioned to protect environmental values.

      . The Commission hns represented in its papers before this Court, and at oral argument, that the intent of the September 29 Order was to afford petitioners a hearing on both issues, that is the continuation, modification, or termination of the construction permits and the issuance of the operating licenses. These hearings, which will be before a duly designated Atomic Safety and Licensing Board, are presently scheduled to begin sometime in the summer of 1973.

      . See note 5 supra.

      . 42 U.S.C. § 2239(a).

      . Pub.L.No. 87-615, § 2, 76 Stat. 409.

      . It is highly instructive to note the Commission’s Draft Environmental Statement, issued in December, 1972, where it is stated at pages IV-6-7 :
      The purpose of the reactor containment is to safeguard against releases of radioactivity to the environs in the highly unlikely event of a major loss of coolant accident postulated (for analytical purposes) to occur within the containment. The design criteria for the Station reactor containment and its components were reviewed and found acceptable by the staff, and were, among other things, the subject of a licensing hearing prior to the issuance of the construction permits. During the course of the staff’s review of the application for an operating license for the Station, certain components designed, fabricated and installed within the containment were found not to meet the design criteria earlier found acceptable by staff during the construction permit review. Consequently, redesign and testing of these components are required in order to achieve an adequate safety system. The environmental impact of accidents occurring within the context of such a system is discussed in Section VI.

      . See, e. g., Citizens Ass’n of Georgetown v. Zoning Commission, 155 U.S.App.D.C. _, 477 F.2d 402 (1973); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1971); Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 80-88, 439 F.2d 584, 596-598 (1971).

      . S.Rep.No.1677, 87th Cong., 2d Sess. 8 (1962), U.S.Code Cong. & Admin.News 1962, p. 2207; H.R.Rep.No.1966, 87th Cong., 2d Sess. 8 (1962).

      . Id.

      . The hearing which we order in this case is in addition to the hearings required by 10 C.F.R. Part 50, Appendix D, presently scheduled for this summer, on the continution, modification, termination, or conditioning of the construction permits and the issuance of the operating licenses.


text:
    UNITED STATES of America, v. Gerald O. MORGAN, Appellant.
    No. 72-1317.
    United States Court of Appeals, District of Columbia Circuit.
    Decided March 19, 1973.
    As Amended March 19, 1973.
    William J. Boyd, Washington, D. C., and James R. Fox (appointed by this court) were on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, Brian W. Shaughnessy, and Joseph E. di Genova, Asst. U. S. Attys., were on the brief for appellee.
    Before McGOWAN, Circuit Judge, EDWARDS, United States Circuit Judge for the Sixth Circuit, and TAMM, Circuit Judge.

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

   PER CURIAM:

Appellant was convicted after jury trial in the United States District Court for the District of Columbia on charges of first degree burglary while armed, armed robbery, and assault with a deadly weapon. He was sentenced to concurrent terms of three to ten years on each count.

The evidence at trial showed that there was one witness to the alleged crime, the complaining witness George C. Lucas. He testified that on October 10, 1971, in the early morning hours, three men whom he had never seen before, two of whom were armed, burst into his room, that he sought to resist but was overcome by them when one of them struck him with a revolver and that they then robbed him of several dollars and left. Lucas also testified that he followed the bandits out of the room, saw them enter a car driven by a man he recognized as Leroy Price, whom he knew.

Lucas called the police who responded and found the room in a state of disorder. Some days later Lucas advised the police of the name of those whom he alleged to be his assailants. He testified that he had gotten their names from Price. Appellant’s was one of those names.

The only appellate issue of significance concerns appellant’s claim of error in being refused the opportunity properly to impeach the complaining witness. This occurred as a result of the following colloquy:

MR. MENARD [Counsel for defendant Dennis G. Morgan]: Your Honor, under D.C.Code convictions, those ten years from the present cannot be used for witnesses or for defendants.
The star witness for the Government, the complaining witness, has a conviction of more than ten years $nd in spite of the D.C.Code, I would argue under the general principles, Your Honor, of criminal law, that we should be allowed to use that conviction.
THE COURT: What is the conviction?
MR. MENARD: Making a false report to the Police Department and that is the gravamen of our defense in this case.
MR. SHAUGHNESSY [Assistant United States Attorney]: Don’t you have another conviction that is more recent?
MR. MENARD: Yes. It is the na-' ture of that other conviction that we want.
THE COURT: If it is more than ten years old, that will not be used, of course.
MR. SHAUGHNESSY: I don’t know if there was a trial in that ease or a forfeit.
MR. MENARD: Yes.
THE COURT: There very seldom is.
MR. MENARD: I think he got 30 days.

The applicable statute provides in relevant part that “no evidence of any conviction ... is admissible . if a period of more than ten years has elapsed since the later of (i) the date of the release of the witness . . . for his most recent conviction of any criminal offense, or (ii) the expiration of the period of his parole, probation or sentence . . . imposed with respect to his most recent conviction of any criminal offense.” 14 D.C.Code § 305(b) (1)(B)(ii) (Supp. V; 1972).

The complaining witness in this case, George Lucas, had been found guilty of making a false report to the police and sentenced to 30 days imprisonment on July 11, 1957. Additionally, on December 30, 1969, he pled guilty to the charge of assault with a dangerous weapon and was sentenced to two to seven years in prison. Execution of that sentence was suspended subsequently, and Lucas was placed on probation for •five years. The effect of the rulings of the District Judge was to allow impeachment of Lucas on the basis of the second conviction but not on the basis of the first.

This latter ruling was plainly in error under the D.C.Statute, and the Government concedes as much. The Government’s argument on appeal is that the error was harmless when the case is considered as a whole, citing Davis v. United States, 133 U.S.App.D. C. 172, 409 F.2d 453 (1969).

We consider the Davis ease to be easily distinguishable from the instant facts and we believe this conviction must be reversed and the case remanded for new trial. The conviction for making a false police report was admissible under the specific language employed in the statute recently adopted by Congress. Additionally, the making of a false police report represents the exact sort of dishonest conduct on the part of the complaining witness which appellant’s alibi defense implied.

The Government proofs in this case were far from overwhelming. There is no corroboration of the offense beyond the inconclusive report of the police officers who responded to the scene after the event concerning the complaining witness’ allegations as to the commission of the crime. And there is no corroboration at all as to the complaining witness' identification of appellant as one of his alleged assailants. The get-away ear driver, Price, was never indicted, and although complaining witness Lucas identified Price as his source of information as to the names of the defendants, he was never called as a Government witness. We do not recite these facts to show that the proofs were insufficient to support a verdict of guilty by the jury, but rather to show that failure to allow impeachment based on a conviction involving a false police report may have been a genuinely prejudicial factor in relation to defendant’s conviction. In Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), this court said:

In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. Id. at 940. (Footnote omitted.)

Here the complaining witness’ honesty and veracity was at issue and the error in excluding his earlier conviction may have affected the jury verdict.

The conviction is reversed and the case is remanded to the District Court for new trial.

      . 14 D.C.Code § 305 (Supp. V, 1972) provides in pertinent part:
      (b) (1) Except as provided in paragraph (2), for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted if offered, either upon the cross-examination of the witness or by evidence aliunde, but only if the criminal offense (A) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (B) involved dishonesty or false statement (regardless of punishment). A party establishing conviction by means of cross-examination shall not be bound by the witness’ answers as to matters relating to the conviction.

        % % * *
      (B) in addition, no evidence of any conviction of a witness is admissable under this section if a period of more than ten years has elapsed since the later of (i) the date of the release of the witness from confinement imposed for his most recent conviction of any criminal offense, or (ii) the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction of any criminal offense.


text:
    In re David C. NIBLACK, Appellant.
    No. 72-1086.
    United States Court of Appeals, District of Columbia Circuit.
    March 8, 1973.
    Rehearing Denied June 5, 1973.

      Arthur J. Whalen, Jr., Washington, D. C., with whom Joan M. McIntyre, Washington, D. C., was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, Brian W. Shaughnessy and Gregory C. Brady, Asst. U. S. Attys., were on the brief for appellee.
    Before BAZELON, Chief Judge, and ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

This is an appeal from a conviction of criminal contempt pursuant to 18 U.S.C. § 401 (1970). Appellant, a member of the District of Columbia bar, was appointed by the district court to represent one Lee, who was charged with violations of the National Firearms Act. 26 U.S.C. § 5861 (1970). (United States v. Malcolm D. Lee, Criminal No. 2042-71). Lee was arraigned before a district judge on November 30, 1971. The appellant Niblack was present on behalf of his client and on that date a motion hearing was scheduled for 9:30 A.M. on December 15, 1971.

Lee appeared at the appointed hour on December 15, 1971 but the appellant did not arrive until 11:20 A.M. After hearing the appellant’s attempted explanation for his tardiness the district court found him in contempt and imposed a fine of $50.00 or imprisonment for ten days. The district judge observed that he had warned the appellant “time and time again about being on time.”

Relying upon Klein v. United States, 80 U.S.App.D.C. 106, 151 F.2d 286 (1945), and Sykes v. United States, 144 U.S.App.D.C. 53, 444 F.2d 928 (1971), the appellant contends that his conduct was not contempt in the actual presence of the court within the meaning of Rule 42(a) of the Federal Rules of Criminal Procedure and 18 U.S.C. § 401 (1970), and that his conviction therefore cannot stand. We think the cited cases can be distinguished.

Klein’s alleged contempt was his refusal to return from New York to Washington and resume his place at the trial table. We held only that his action in New York was not “misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice.” We recognized that as construed by the Supreme Court the words “so near thereto” have a geographical connotation. Our opinion emphasized that the contempt proceeding was not for violation of a court order, since it was “not claimed or shown” that the court had entered any order directing Klein to return ; thus the decision did not relate to contempt committed by violation of such an order. Here, as the district judge found, Niblack disobeyed the order that he be in court at a specified hour to proceed with a hearing. This misconduct was different from that attributed to Klein and clearly fell within the scope of 18 U.S.C. §401(3).

In the Sykes case we held only that the evidence did not justify a finding that Sykes “deliberately or recklessly disregarded his obligation to the court, or that he intended any disrespect for the court”; in other words we held that the record disclosed “no evidence of any criminal intent on the part of” Sykes. We said there were no unusual circumstances warranting a conclusion that the conduct of Sykes was reckless, but on the contrary it appeared that his default had resulted from a lapse of memory and was an isolated aberration. We noted further that “[t]he judge prefaced his ruling with statements to the effect that he was reluctant to find the appellant in contempt, since he had had ‘very favorable experiences’ with the appellant, who had ‘served the court’ ”. In the present case, however, the district judge stated that the failure of Niblack to appear was not an isolated aberration but had “happened many times in the past” and that the appellant had been repeatedly warned about such misconduct.

In Sykes v. United States we discussed the Klein decision. Some clarification of that discussion may be appropriate. The Klein case did not hold that a failure to appear at a time ordered by the court could not be a contempt in the presence of the court; as we have said, the holding was only that Klein, in New York and under no order to appear, was not guilty of contempt in the presence of the court or so near thereto as to obstruct the administration of justice. In any event our discussion of the Klein ruling was not necessary to our decision with respect to Sykes, which rested on our analysis and evaluation of the evidence and our conclusion that the proof did not disclose any wilfulness on the part of Sykes.

We think the record in this case justifies the conclusion that the appellant’s conduct was in reckless and wilful disregard of the court’s order that he appear promptly for the scheduled hearing. Thus, the record supports a finding that the appellant’s disobedience of the Court’s order met the test of criminal intent applied in Sykes v. United States. We think also that when a lawyer, in wilful disregard of a court’s order, appears almost two hours after the appointed hour he subjects himself to discipline pursuant to Rule 42(a), Fed.R.Crim.P.

The judgment is affirmed.

      . Rule 42(a), Fed.R.Crim.P. provides:
      Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
      18 U.S.C. § 401 provides :
      A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
      (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
      (2) Misbehavior of any of its officers in their official transactions ;
      (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

      . These facts should have been, but were not, recited in the order of contempt filed by the District Court pursuant to Rule 42 (a), Fed.R.Crim.P. Nevertheless, since the appellant was fully advised of all the facts and circumstances upon which the district judge based his order, and was given an opportunity to respond, we think the omission does not warrant reversal. In the future, district judges should be careful to include a full statement of the facts in any order of contempt. Cf. United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965), cert. denied, 384 U.S. 1003, 86 S. Ct. 1914, 16 L.Ed.2d 1017 (1966), rehear. denied, 385 U.S. 890, 87 S.Ct. 12, 17 L.Ed.2d 121 (1966).


text:
    UNITED STATES of America v. Douglas F. BROWN, a/k/a Douglas Brown, Appellant.
    No. 72-1208.
    United States Court of Appeals, District of Columbia Circuit.
    March 16, 1973.
    J. Gordon Arbuckle, Washington, D. C., was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, Brian W. Shaughnessy, Philip L. Cohan, and John J. Mulrooney, Asst. U. S. Attys., were on the brief for appellee.
    Before BAZELON, Chief Judge, ELBERT P. TUTTLE United States Senior Circuit Judge for the Fifth Circuit, and MacKINNON, Circuit Judge.

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

   PER CURIAM:

Appellant, who was convicted of possession of a sawed-off shotgun, raises a number of issues, only one of which deserves comment. Before trial, appointed defense counsel apprised the court of appellant’s prior criminal record, and inquired whether any of appellant’s prior convictions would be admissible to impeach him. The court ruled it would only admit the most recent conviction — for assault with intent to commit robbery in 1968. The trial judge thus appears to have exercised his discretion, foreclosing any challenge to the 1970 amendments to the Luck statute in this case. Defense counsel seems to have acquiesced in the trial court’s decision — there was no mention of a Luck hearing nor argument for the judge to exercise his discretion to exclude the most recent conviction as well. This court has repeatedly held that the burden is on defense counsel to invoke Luck and to show why the court should exercise its discretion to render a prior conviction unavailable for impeachment. The failure of the court to hold a Luck hearing is therefore not grounds for reversal in this case.

Appellant notes that there is substantial indication that defendants with court-appointed lawyers fare far worse than those with retained attorneys. As he points out, an indigent’s advocacy alternatives are limited and the efforts of his appointed counsel are often hampered by institutional pressures. Thus, appellant asserts, sole reliance on the adversary system to protect the defendant’s rights is unrealistic. Appellant would have us take these facts into consideration in applying the plain error rule when a court appointed counsel has failed to register an objection. Appellant urges that these considerations should also apply to ameliorate the burden on counsel to invoke the Luck rule. But we think it would be unwise to act on that suggestion now.

There is nothing in the record before us to indicate whether counsel’s failure to ask for a Luck hearing was an informed tactical choice or a decision undertaken out of ignorance of the relevant law or indifference to her client’s interests. Although appellant’s counsel on appeal (who is not trial counsel) disclaims reliance on ineffectiveness of counsel, that issue necessarily lurks in the suggestion that the defendant should not be bound by the failures of his trial attorney. This court has held, however, that we will not resolve the matter of the effectiveness of trial counsel where, as here the record is inadequate for the purpose of deciding whether counsel’s challenged decision was a deliberate, knowing and rational tactical choice. Appellant is not deprived of a remedy for a meritorious claim; he may seek to raise the issue of ineffectiveness and support his claim with evidence dehors the record either on a timely motion for a new trial or on collateral attack.

Affirmed.

      . Appellant was convicted of possession of an unregistered firearm, 26 U.S.C. § 5861 (d); possession of a firearm not identified by serial number, 26 U.S.C. § 5861 (i); and possession of a prohibited weapon, 22 D.C.Code § 3214(a).

      . Appellant also asserts as error the improper admission of evidence of the factual circumstances of his arrest and the prosecutor’s discussion of the legal concept of possession in his summation. We find neither an adequate reason for reversal.

      . Defense counsel recited a series of charges against appellant dating back to 1965, including a recent sentence under the Youth Corrections Act.

      . 14 D.C.Code § 305 (Supp. V 1972) (purporting to preempt the trial judge’s discretion by permitting the impeachment of a witness by any of a specified group of crimes for which the witness had been convicted.) The constitutionality of this statute is currently under consideration by this court in United States v. Henson, No. 71-1456 (D.C.Cir. filed June 13, 1971); United States v. Marshall, No. 71-1491 (D.C. filed June 10, 1971); United States v. Brown, 71-1497 (D.C.Cir. filed June 18, 1971); United States v. Jeffries, 71-1356 (D.C.Cir. filed May 3, 1971).

      . United States v. Coleman, 137 U.S.App.D.C. 110, 113, 420 F.2d 1313, 1316 (1969); Smith v. United States, 132 U.S.App.D.C. 131, 131-132, 406 F.2d 667, 667-668 (1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1315, 22 L.Ed.2d 564 (1969); Evans v. United States, 130 U.S.App.D.C. 114, 118, 397 F.2d 675, 678-679 (1968); Gordon v. United States, 127 U.S.App.D.C. 343, 346, 383 F.2d 936, 939 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968).

      . See, e. g., Summers, The Tilted Scales of Criminal Justice: The Plight of the Indigent Defendants, 5 Crim.L.Bull. 508 (1969); D. Oaks & W. Lehman, A Criminal Justice System and the Indigent: A Study of Chicago and Cook County, 108-38, 150-67 (1966); United States v. Martin, No. 71-1457, 154 U.S.App.D.C. _ at _, 475 F.2d 943 at 956 (1973) (Chief Judge Bazelon dissenting) (citing a study by the Administrative Office of the U. S. Courts showing that offenders with appointed counsel receive longer sentences than offenders with privately retained attorneys).

      . See, e. g., ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, Approved Draft 1968, § 1.4 commentary (b) at 20-21 (an “assigned lawyer . . . may not have the same freedom of action in defending his client before the judge responsible for the assignment that retained counsel would have”) ; A. Blumberg, Criminal Justice 3-38, 95-116 (1967); L. Downie, Justice Denied 173-77, 179-82 (1971); President’s Commission on Law Enforcement and the Administration of Justice, Task Force Reports: The Courts 57-61 (1967).

      . See United States v. Martin, No. 71-1457, 154 U.S.App.D.C. _ at _, 475 F.2d 943 at 954 (1973), (Chief Judge Bazelon dissenting).

      . See, e. g., People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963) (Justice Traynor, writing for the court, reversed a conviction for ineffectiveness where counsel failed to move for the suppression of evidence because of his ignorance of the relevant law).

      . See United States v. Benn & Hunt, _ U.S.App.D.C. _, 476 F.2d 1127 (1972).

      . Fed.R.Crim.P. 33; see, United States v. Thompson, No. 71-1182, 154 U.S.App.D.C. _, 475 F.2d 931 (1973); United States v. Smallwood, 153 U.S.App.D.C. 387 at 393, 473 F.2d 98 at 104 (Nov. 9, 1972) (Bazelon, Chief Judge, concurring); Marshall v. United States, 141 U.S.App.D.C. 1, 5 n. 11, 436 F.2d 155, 159 n. 11 (1970). A motion for a new trial on the grounds of newly discovered evidence may be made within two years of final judgment. Fed.R.Crim.P. 33. Where evidence of the ineffectiveness of trial counsel is brought to the attention of the court for the first time in support of the motion, that evidence is “newly discovered” for the purposes of Rule 33. See United States v. Thompson, No. 71-1182, 154 U.S.App.D.C. _, 475 F.2d 931 (1973).

      . 28 U.S.C. § 2255.


author: PER CURIAM.

text:
    Joseph Charles JAMES, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-1783.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 16, 1973.
    Decided April 20, 1973.
    Joseph Charles James, pro se.
    Bethel B. Larey, U. S. Atty., and Sam Hugh Park, Asst. U. S. Atty., Fort Smith, Ark., on brief for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge.

       Sitting by designation.

   PER CURIAM.

This is a timely appeal by Joseph Charles James, hereinafter called defendant, from order denying his 28 U.S. C. § 2255 petition to vacate a five-year sentence imposed upon him after his plea of guilty to a charge of possession of an explosive bomb, in violation of 26 U.S.C. §§ 5861(d) and 5871.

We will briefly summarize the background facts. Defendant waived indictment and was charged by information in Count I with possession of an explosive bomb in violation of 26 U.S.C. §§ 5861(d) and 5871, and in Count II with possession of a pistol by a convicted felon, in violation of 18 U.S.C. App. § 1202(a). Defendant was represented by counsel and entered a voluntary plea of guilty to each count which was accepted by the court.

Defendant was sentenced to five-years imprisonment on Count I, under which a sentence up to ten years was permissible, and was given a two-year concurrent sentence on Count II. In the § 2255 hearing here involved, the trial court upheld defendant’s contention that his conviction on Count II was invalid under United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), decided subsequently to the imposition of sentence, and set aside and vacated the conviction and sentence on Count II.

The court denied relief as to the Count I sentence, stating: “It is further ordered and adjudged that the petition of Joseph Charles James as to Count I of the information be denied and the sentence entered by the Court on June 22, 1971, be and the same is hereby in all respects affirmed.”

Defendant, relying upon United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), urges that he is entitled to have his Count I sentence vacated with a remand to the trial court for re-sentencing upon the ground .that it is not established that the trial court did not rely on the invalid Count II conviction in imposing the Count I sentence. The Supreme Court in Tucker states that the vital issue for determination is “whether the sentence . . . might have been different if the sentencing judge had known that at least two of the respondent’s previous convictions had been unconstitutionally obtained.” 404 U.S. 443, 448, 92 S.Ct. 589, 592, 30 L.Ed.2d 592.

Similarly here, the critical issue is whether the sentence imposed on Count I might have been different if the sentencing judge had known at the time of the sentencing that the Count II conviction was invalid.

This court has on several occasions subsequent to Tucker remanded for re-sentencing where it appeared possible that a sentencing judge might have relied in part on an unconstitutional conviction. Taylor v. United States, 472 F.2d 1178 (8th Cir. 1973); Garrett v. Swenson, 459 F.2d 464 (8th Cir. 1972). In Taylor we stated: “A sentencing judge might still render a lesser sentence where the petitioner’s record appears in a ‘dramatically different light’ notwithstanding that the original sentence was within permissible limits of the lesser category of recidivists.” 472 F.2d 1178, 1180.

In McGee v. United States, 462 F.2d 243 (2d Cir. 1972), concurrent sentences of two years were imposed upon each of four counts upon which defendant was convicted. The conviction on Count I was later invalidated. The court in remanding counts two to four for resentencing states that on a silent record it is impossible to determine whether the sentences on the remaining counts were in part induced by conviction on the count which was subsequently invalidated. The court also states:

“When the invalidity of the conviction on one count which may have influenced the sentence becomes apparent on an appeal, whether on direct or collateral attack, the proper course is usually to vacate the sentences and remand for resentencing on the valid counts without consideration of the invalid one.” 462 F.2d 243, 246.

To like effect, see Martinez v. United States, 464 F.2d 1289 (10th Cir. 1972).

In McAnulty v. United States, 469 F.2d 254 (8th Cir. 1972), we held no remand for resentencing was required where the trial judge in the § 2255 proceeding stated that six years was the appropriate sentence regardless of the invalidity of previous convictions.

In our present case, the trial court made no express statement with respect to the consideration if any given to the Count II conviction subsequently invalidated in imposing sentence on the valid conviction.

The fact that the sentencing judge reaffirmed the sentence on Count I in the present § 2255 proceeding after he had invalidated the Count II conviction lends support to the Government’s view that the Count II conviction had no influence on the Count I sentence and that a remand for resentencing will accomplish nothing. The court could in the § 2255 proceeding vacate the Count I conviction and resentenee the defendant if he believes the Count II conviction influenced the Count I sentence. However, such is the position taken in Tucker by the dissenting opinion of Mr. Justice Black-mun, concurred in by the Chief Justice, which position was rejected by the Court majority in footnote 8, p. 449 of 404 U.S., 92 S.Ct. 589. The burden imposed on the trial court on remand for resentencing will be slight. A record can then be made which will clearly reflect whether the sentence imposed on Count I was in any way influenced by the Count II conviction. The bulk of the cases passing upon the issue before us interpret Tucker as requiring a remand under the circumstances of this case.

This case is remanded to the trial court with direction to vacate the sentence imposed on Count I and to resentence the defendant upon such count.

      . Defendant at footnote 1 of his reply brief states that the trial court at the time of imposing sentence considered and relied upon four previous convictions of the defendant which defendant now claims were constitutionally invalid. Defendant concedes such issue was not raised in the trial court and that hence it cannot be considered upon this appeal. We suggest that the trial court in event it considers any previous convictions in passing sentence on Count I allow the defendant to attack the validity of such convictions upon the basis that such procedure might be helpful in bringing about an early termination of this litigation.


text:
    In the Matter of IREDALE’S LTD., a co-partnership composed of William E. Iredale and Genevieve M. Iredale, Bankrupt. In the Matter of William E. IREDALE, Bankrupt. In the Matter of Genevieve M. IREDALE, Bankrupt. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Petitioner-Appellant, v. Carl W. VROOMAN, Trustee-Appellee.
    No. 71-1703.
    United States Court of Appeals, Ninth Circuit.
    March 15, 1973.
    Ralph M. Abee (argued), Harris B. Taylor, Los Angeles, Cal., for petitioner-appellant.
    Sandor T. Boxer (argued), of Coskey & Coskey, Los Angeles, Cal., for trusteeappellee.
    Before KOELSCH, KILKENNY, and GOODWIN, Circuit Judges.
   PER CURIAM:

Bank of America appeals from a judgment upholding the referee’s decision in a bankruptcy contest over the proceeds of the bank’s liquidation of certain stock originally owned by the bankrupt, Ire-dale.

Iredale, to secure a loan from the bank, pledged as collateral 547 shares of Sears, Roebuck and Company stock. The collateral pledge agreement contained a “dragnet clause,” a common provision in collateral agreements purporting to give a secured lender the right to look to all the debtor’s assets in the lender’s hands to cover all the debtor’s liabilities to the lender, past and future as well as present. After he had concluded the loan transaction by pledging his stock as collateral in this open-ended fashion, the borrower entered into an equipment-lease agreement with the same bank. No new collateral was pledged.

Still later, Iredale defaulted on the loan agreement, and the bank sold the stock. From the proceeds of the sale the bank satisfied Iredale’s unpaid balance on the loan. The bank then applied the surplus to the amount due, and in arrears, under the equipment lease. The referee decided that this application was unauthorized.

The district court sustained the referee’s decision that the dragnet clause could not authorize the bank’s application, as against other creditors, of the surplus collateral to the equipment lease. This view finds some support in the result of National Acceptance Co. v. Blackford, 408 F.2d 20 (5th Cir. 1969). However, National Acceptance turned in part on statutory considerations not applicable in this case.

After the district court had ruled, this court decided Kesling v. Bank of America Nat’l Trust & Sav. Ass’n, 449 F.2d 770 (9th Cir. 1971). Kesling holds that a security agreement is not rendered invalid merely because it creates a lien to secure future indebtedness. In the absence of evidence indicating that the dragnet clause was not intended to mean what it says, or that it contravened some provision of local law, the clause will be enforced.

The district court failed to give effect to the expressed intentions of the parties to the agreement, and thereby denied the lender the benefit of its security. The trustee does not argue that the security agreement or the lease was in conflict with California’s version of the Uniform Commercial Code, Cal. Commercial Code § 9402. Accordingly, we do not reach questions that could arise if a security agreement is challenged on statutory grounds.

Reversed.


text:
    UNITED STATES of America ex rel. John FORD, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
    No. 72-3505
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 18, 1973.

      John Ford, pro se.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee.
    Before BELL, GODBOLD and INGRAHAM, Circuit Judges.

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

   PER CURIAM:

John Ford, a prisoner of the State of Louisiana, has appealed from the district court’s denial of his petition for habeas corpus relief. We affirm the ruling below.

Appellant Ford is confined by authority of a 21-year sentence for manslaughter which was imposed on November 27, 1967 by the Criminal District Court of Orleans Parish, Louisiana. The judgment resulted from Ford’s plea of guilty. There was no direct appeal; but state post-conviction remedies have been exhausted in compliance with the requirements of 28 U.S.C. § 2254(b).

The state trial court held an evidentiary hearing on the merits of Ford’s habeas corpus petition, following which it denied relief. Ford’s application to the Louisiana Supreme Court for habeas relief also was denied. State ex rel. Ford v. Henderson, La.1972, 256 So.2d 440.

In his habeas petition filed in the United States District Court, Ford alleged that (1) his plea of guilty was not knowingly and understandingly made; and (2) he was denied the assistance of counsel. The district court denied relief on the basis of the state record, as is authorized by pertinent provisions of 28 U.S.C. § 2254.

The transcript of the evidentiary hearing held in the state trial court shows that Ford did not testify as to any constitutional rights of which he was ignorant when he pled guilty. He testified that his former court-appointed counsel had negotiated a plea of manslaughter for him, whereupon the pending charges of murder and attempted armed robbery would be dismissed. Ford testified that he refused to accept the arrangement at that time because he would have had to accept a 21-year sentence, whereas he was unwilling to accept a sentence of more than 15 years.

The trial court allowed that attorney to withdraw, and appointed as Ford's new counsel, the attorney who had been retained to represent Ford’s co-defendant. The appellant testified that when he pled guilty he was not represented by any counsel, but the transcript shows that the attorney represented both defendants in these pre-Boykin proceedings. Appellant stated that then he decided to go ahead and plead guilty (knowing that he would receive 21 years), although he knew he still had the right to a trial after his co-defendant pleaded guilty. Ford conceded that his plea was entirely voluntary.

The attorney who represented Appellant Ford and his co-defendant testified that he discussed the plea bargain with Ford; and that he had thoroughly investigated the cases which were pending against the two men.

Under these and other circumstances shown by the record, we have no doubt that Ford’s plea was knowingly and understandingly made, and that he was accorded the effective assistance of counsel. See Busby v. Holman, 5th Cir. 1966, 356 F.2d 75; Cooper v. Holman, 5th Cir. 1966, 356 F.2d 82, cert. denied 385 U.S. 855, 87 S.Ct. 103,17 L.Ed.2d 83; Parrish v. Beto, 5th Cir. 1969, 414 F.2d 770; Roberts v. United States, 5th Cir. 1978, 472 F.2d 1195 (1973); Weaver v. State, 5th Cir. 1973, 474 F.2d 1135 (1973). The district court’s order denying habeas corpus relief to Appellant Ford is hereby affirmed.

Affirmed.

      . Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. STATE OF MISSISSIPPI et al. (Smith County School District), Defendants-Appellants, Sylvarena Baptist Academy, Defendant-Appellant.
    No. 72-2521.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1973.
    Heber Ladner, Jr., Sp. Asst. Atty. Gen., A. F. Summer, Atty. Gen. of Miss., Jackson, Miss, for State of Miss.
    Marvin Oates, Bay Springs, Miss., M. M. Roberts, Hattiesburg, Miss., for Sylvarena Baptist Academy.
    L. D. Pittman, Raleigh, Miss., for School Board.
    Robert E. Hauberg, U. S. Atty., Jackson, Miss., Daniel F. Rinzel, Richard H. Swan, Andrew J. Ruzicho, Civil Rights Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before COLEMAN and SIMPSON, Circuit Judges and ESTES, District Judge.
   PER CURIAM:

In 1968, the Board of Supervisors of Smith County, Mississippi, leased for a 25-year period the Sylvarena School, a vacant public school building located on certain sixteenth section lands, to the Sylvarena Civic Center Association for the sum of $5.00 per year. On August 11, 1970, some seventeen months after the original lease, the district court ordered the Smith County Board of Education to terminate operation of a racially dual system of public schools. Some five months later, on January 15, 1971, the Sylvarena Civic Center Association subleased the Sylvarena School premises to the Sylvarena Baptist Academy for the unexpired term of the Civic Center’s lease to be used as a private, segregated school serving only white students. The sublease provides that the yearly rentals of $5.00 be paid directly to the County Superintendent of Education. The United States moved for supplemental relief in the district court, which had retained jurisdiction of the cause to insure compliance, on the basis that the leases were being used to reestablish a dual school system by unlawfully providing state financial assistance to the operation of the private, segregated school. The district court granted the United States the relief sought, enjoining the selling, leasing or subleasing of sixteenth section land to any organization for use as a segregated private school, and declaring the original lease of the Sylvarena School premises to the Civic Center null and void. The court held that the Smith County Board of Supervisors had the right to renew the lease to the Civic Center provided that any lease contain the provision that any sixteenth section land premises may not be leased or subleased for the use of a segregated school or for any use which interferes with any school desegregation plan. We hold this order of the district court overbroad and modify it in accord with McNeal v. Tate County School District, 460 F.2d 568, 574 (5th Cir. 1972).

Although under Mississippi law the Smith County Board of Supervisors is entitled to lease sixteenth section land for a nominal sum, it is well established that the state, acting through its various local bodies, is charged with the affirmative duty to take whatever steps might be necessary to bring about a unitary educational system free of racial discrimination. Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); McNeal v. Tate County School District, 460 F.2d 568 (5th Cir. 1972); Gilmore v. City of Montgomery, 473 F. 2d 832 (5th Cir. 1973). Where, as here, the state is the lessor of a former public school converted into a segregated private school, located on property specifically designated for the benefit of the public schools, there is a state involvement with such schools. Under these circumstances the proscriptions of the Fourteenth Amendment against racial discrimination by the state must be complied with by the lessee and sublessee as certainly as though they were binding covenants written into the agreement itself. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

At the time the district court granted the relief requested by the United States by voiding the lease between the Board of Supervisors and the Civic Center, it did not have the benefit of this court’s decision on petition for rehearing in McNeal v. Tate County School District, supra, 460 F.2d at 574.

In light of our decision on reconsideration in McNeal, we now vacate the order of the district court voiding the lease between the Board of Supervisors and the Civic Center, and remand the case with directions to enter an order upholding the lease and sublease but enjoining the Civic Center and the Sylvarena Baptist Academy, or any members, successors or assigns from using the property for the operation of a segregated private school. The injunction of the district court shall provide that if the Sylvarena School is used as a private school, such school shall be operated without any discrimination of any kind or character based upon race, creed, color or national origin, and the doors of any such school shall be open at all times to all qualified applicants on an equal basis.

Remanded, with directions.

      . Legal title to the sixteenth section of each township is vested in the State of Mississippi to be held in trust for the maintenance and support of public schools for inhabitants of each township. Lambert v. State, 211 Miss. 129, 51 So.2d 201 (1951). Though title remains in the state, the Mississippi legislature has provided that each county shall control all the sixteenth section land located within it. Miss.Code Ann. § 6598-01 (Supp. 1972).


text:
    Randall F. PAINTER, suing as the Administrator of the Estate of Elvon A. Painter, Deceased, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY et al., Defendants-Appellees. Fred CAMPBELL, suing as Admr. of the Estate of Beverly Campbell, Deceased, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY et al., Defendants-Appellees.
    Nos. 72-3690, 72-3691
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 28, 1973.
    Alva C. Caine, Birmingham, Ala., for plaintiffs-appellants.
    Robert H. Marquis, Gen. Counsel, Beauchamp E. Brogan, Asst. Gen. Counsel, Beverly S. Burbage, and Charles A. Wagner, III, Tenn. Valley Authority, Knoxville, Tenn., for defendants-appellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970.).

   PER CURIAM:

These two actions brought under the Alabama wrongful death act against the Tennessee Valley Authority [TVA] were dismissed for failure to state a claim upon which relief could be granted. We affirm.

The TVA is a federally owned corporation and it is conceded to be an agency or instrumentality of the United States. Though it may sue or be sued in contract or tort, Congress has made no provisions allowing suit against it for punitive damages.

The plaintiffs candidly concede that pursuant to Alabama law the only damages recoverable under the wrongful death statute are punitive damages. There is no provision in Alabama law establishing a right in the decedent’s survivors to recover compensatory damages for a wrongful death. Moreover, we reject the argument that the damages awarded under the statute are, regardless of the label applied by the Alabama courts, inherently compensatory to any extent. Since the objectives of punitive damage awards are totally unrelated to the purposes of compensation, it would be a mere happenstance if a verdict for punitive damages equalled compensatory damages in this cause. The purpose of this law as declared of the courts of Alabama is binding on this court. It simply will not do to allow plaintiff’s to utilize Alabama’s wrongful death law authorizing punitive recovery as a surrogate authority to recover compensatory damages by assuming our own view of its true purpose or measure of damages to be awarded which the statute does not authorize and Alabama courts declare is not present. See Massachusetts Bonding & Insurance Company v. United States, 352 U.S. 128, 77 S. Ct. 186, 1 L.Ed.2d 189 (1956).

The district court concluded, on the authority of Littleton v. Vitro Corp. of America, 130 F.Supp. 774 (N.D.Ala. 1955), that the action for punitive damages would not lie against the TVA, under the established rule that punitive damages cannot be recovered from the United States or its agencies. See Missouri Pacific R. R. v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087 (1921); Reconstruction Finance Corp. v. Texas, 229 F.2d 9 (5th Cir.), cert. denied, 351 U.S. 907, 76 S.Ct. 695, 100 L.Ed. 1442 (1956). See also Fowler v. Tennessee Valley Authority, 208 F.Supp. 828 (E.D.Tenn. 1962), aff’d on other grounds, 321 F.2d 566 (6th Cir. 1963).

It is altogether anamolous that similarly situated survivors could maintain this action against the TVA under the law of practically any other state while those who have the misfortune of being relegated to the use of Alabama law are permitted no right of action at all. This lack of uniformity of tort responsibility of a federal institution based on the fortuity of geography is irrational. However, this inferior federal court has no power and declines to assume the temerity to so intrude in matters traditionally committed to the States as to declare the existence of a federal right in the survivors to recover for a decedent’s death, even though the “policy ... [of recognizing such a right] has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.” Moragne v. States Marine Lines, Inc., 398 U.S. 375, 390-391, 90 S.Ct. 1772, 1782, 26 L.Ed.2d 339 (1970).

The aberration in such cases must find its remedy through an appropriate Congressional waiver of the TVA’s immunity to punitive damages or by the creation of some uniform federal right of action, or by Alabama’s amendment or reinterpretation of its law.

The decisions in these cases are in all respects

Affirmed.

      . Ala.Code tit. 7, § 123 (1960).

      . 16 U.S.C.A. § 831c (b); Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784 (1939); Adams v. Tennessee Valley Authority, 254 F.Supp. 78 (E.D.Tenn. 1965); Littleton v. Vitro Corp. of America, 130 F.Supp. 774 (N.D.Ala. 1955).

      . The same district court which decided Littleton v. Vitro Corp. of America, supra, has reached similar results in at least three other cases, one of which was decided as early as 1940. During this time the State of Alabama has not seen the need to amend the statute or to change its construction.

      . In Massachusetts Bonding & Ins. Co. v. United States, supra, the Supreme Court observed that apparently the punitive construction of wrongful death statutes prevailed only in Massachusetts and Alabama.

      . An analogous result obtained in actions brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., prior to its amendment in 1947. The present 28 U.S.C. § 2674 provides:
      The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
      If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.
      The Federal Tort Claims Act does not apply, however, to actions against the Tennessee Valley Authority. 28 U.S.C. § 2680(l).


text:
    UNITED STATES of America, Appellee, v. Connie STUMPF, Appellant.
    No. 73-1054.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1973.
    Decided April 18, 1973.

      Alfred D. Swersky, Alexandria, Ya., for appellant.
    K. Gregory Haynes, Asst. U. S. Atty., Alexandria, Va., for appellee.
    Before WINTER and FIELD, Circuit Judges, and BLAIR, District Judge.
   PER CURIAM:

Defendant, who entered a guilty plea to the misdemeanor charge of willful obstruction of mail, 18 U.S.C. § 1701 (1970), was sentenced to imprisonment for a period of 120 days. Although she was interviewed by a probation officer prior to sentencing, she suppressed the fact that she had ever experienced psychiatric difficulties. After sentence was imposed, she moved for a reduction of sentence under Rule 35, F.R.Crim.P., supporting her motion with a letter from her family doctor which related that she had had “a very distorted life history since her adoption,” that she had been treated at “Pratt Institute,” Baltimore, Maryland, and escaped from this institution, and that she was “in a very unstable mental wandering and probable self-destructive state of mind [sic].” The district court, after reviewing the papers and hearing the comments of counsel, denied the motion and also denied a request that she be permitted to remain at liberty on bond pending an appeal.

Defendant appealed from denial of her motion for reduction, and a judge of this court granted a 5-day stay of the execution of the sentence (later extended), on condition that defendant consult a private psychiatrist to obtain a determination of her mental condition and the effect of incarceration thereon. The examination and report were made by Dr. Erich M. Reinhardt, a qualified psychiatrist who was privately engaged by defendant. Dr. Reinhardt’s report elaborated upon defendant’s unstable background and her “fragile, emotional equilibrium,” which he-described as “prone to disintegration even under minor stress,” and as “very precarious, with the threat of a prison sentence hanging over her . . ..” He stated that “she has made suicidal gestures, talks suicide, and has reached the point of making unwise and unrealistic decisions ..” He expressed the view that if incarcerated, “I am sure that psychiatric hospitalization would become a necessity.” In a supplemental report he added that, in his opinion, defendant “should not be incarcerated at the present time, since most likely confinement would cause a mental breakdown.”

Limiting ourselves to the record before the district court, we see no merit in defendant’s appeal. A motion for reduction of sentence under Rule 35 is addressed to the sound discretion of the district court, and it follows that the district court’s disposition of the motion is not reviewable on appeal except for a clear abuse of discretion. United States v. Harbolt, 455 F.2d 970 (5 Cir. 1972); United States v. Krueger, 454 F.2d 1154 (9 Cir. 1972). The sentence of the district court did not exceed the statutorily authorized maximum penalty of $100 fine, or six months imprisonment, or both, and the information brought to the attention of the district court was not so positive that we think there was any abuse of discretion, let alone a clear abuse, in its declining to modify the sentence.

At the same time, we are sure that the district court would share our concern, generated by the more detailed and corroborating information and opinion of Dr. Reinhardt, were these facts before it, and would agree that they warrant further exploration either by way of interrogating Dr. Reinhardt, or by the selection of a court-appointed psyehiatrist to make another evaluation, or both, or even by other means. Cf. Leach v. United States, 118 U.S.App.D.C. 197, 334 F.2d 945 (1964). Not lightly nor likely do we think that incarceration would be ordered if there is in fact a substantial likelihood of an attempt at suicide or a mental breakdown.

Accordingly, we will vacate the order denying the motion and remand the case so as to give the district court the opportunity to conduct such further proceedings as it, in its sound discretion, deems proper, to determine if these dangers are real, and if so, how they may best be met. The mandate will issue forthwith, but we will grant a further stay of execution of the sentence to continue until the motion has been further considered and decided by the district court.

Vacated and remanded; stay granted.

       The Sheppard Enoch Pratt Hospital is a private hospital, outside of Baltimore, whieh specializes in the treatment of mental and nervous disorders.