author: GEE, Circuit Judge: THORNBERRY, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Salvatore CASTELLANA, a/k/a Sam Castellana, Defendant-Appellee.
    No. 73-2259.
    United States Court of Appeals, Fifth Circuit.
    Sept. 6, 1974.
    John L. Briggs, U. S. Atty., Harvey E. Schlesinger, Asst. U. S. Atty., Jacksonville, Fla., Claude H. Tison, Asst. U. S. Atty., Tampa, Fla., Mervyn Hamburg, Dept, of Justice, Crim. Div., Washington, D. C., for plaintiff-appellant.
    Henry Gonzalez, Thomas J. Hanlon, Tampa, Fla., for defendant-appellee.
    Before BROWN, Chief Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges, and INGRAHAM, Senior Circuit Judge.

       Judge Ingraham sat as a member of the original panel in this case and thus was a member of the en banc court.

   GEE, Circuit Judge:

The United States appeals from suppression of two answers and four pistols as evidence in Castellana’s trial for possessing, as a convicted felon, firearms transported in interstate commerce. 18 U.S.C. App. § 1202(a). In main, we reverse.

On August 4, 1972, Castellana was running a drive-in grocery in Tampa, Florida, on premises comprising a main business room about twenty by forty feet in area with an eight by ten office in the rear and another back room. Suspecting gambling there, F.B.I. agents obtained valid search warrants for the store and for Castellana’s person. About six p. m. the next day twenty agents in mufti went to the store, where they saw Castellana peering at them from just inside the front door, which he then locked. The lead agent identified them as F.B.I., announced he had a search warrant, and called on Castellana to open up. Instead Castellana backed away and the agents broke ■ in, while Castellana stood a few feet inside and others were seen screaming and running about. Agent Smith, assigned to search Castellana's person, asked him to go with him to the back room but did not arrest him. He consented to and did so. Smith testified he wished to adjourn to the back office because of the pandemonium in the front room and his belief that an amount of money would be found there which he wished Castellana, to count and verify. Agent Arwine followed.

As Castellana halted about four feet from his desk and Smith prepared to read the warrant, Arwine suddenly asked Castellana whether he had any weapons within reach. Castellana replied that he did, pointing to a drawer in the desk. Arwine took four handguns from the drawer, one of which occasioned Castellana’s present indictment, and asked Castellana where he got them. Castellana answered that he took them in on a loan. Smith then read the warrant and advised Castellana of his Miranda rights, which he refused to waive. The four handguns were unloaded and placed on the desk and the search of defendant and the store carried out. At no time was anyone arrested.

Assuming Castellana was “in custody” under inherently coercive conditions when Arwine asked his questions, Miranda was not infringed, for Arwine was not interrogating Castellana in an attempt to elicit evidence of a crime. The safety of the operation was Arwine’s primary concern, he testified, and the very form of his first inquiry— weapons within reach — shows it was limited to this proper concern. No rational investigatory purpose could have prompted such a question about premises which the agents were already authorized to, intended to, and did search. Nor is there any indication of devious intent by the agents to achieve an investigatory end by means masquerading as security measures; such activities might be made short work of.

Presented instead is a bona fide and minimally offensive security measure in the line of Terry v. Ohio but less intrusive or demeaning than the “stop-and-frisk” procedure on less than probable cause there sanctioned, a mild and distant cousin to the searches incident to lawful arrest approved in Gustafson and Robinson. We find ourselves unable to condemn, after the fact and on grounds of some delicacy, such mild prophylactic measures reasonably calculated to ensure the safety of the officers, the suspect, and others on the scene as well. To be sure, the court below concluded that the agents did not feel physically threatened by Castel-lana, but in our view the mild measures adopted were justified by a reasonable prudence under the circumstances and did not require an actual fear of imminent harm to validate them.

Our holding, like the familiar “plain-view doctrine,” follows from the obvious principle that evidence discovered by the police in the course of doing what they have a right to do is not subject to suppression. Arwine’s inquiry about the gun’s source falls outside this rationale, however, and that inquiry, as well as Castellana’s answer to it, were properly suppressed.

Affirmed in part, reversed in part.

THORNBERRY, Circuit Judge,

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

I dissent. The majority opinion engages in fact-finding at the appellate level and draws an inappropriate analogy with Terry v. Ohio to provide policy support for its views.

The majority reasons that Miranda is inapplicable because Agent Arwine did not interrogate Castellana when he inquired whether any weapons were nearby. The question did not constitute interrogation, we are told, because Ar-wine did not ask it “in an attempt to elicit evidence of a crime.” Assuming that the majority has hit upon a satisfactory definition of interrogation, I cannot agree with its reasoning; it presumes to find as a fact that Arwine asked about the guns for safety reasons. In the first place it is not the function of this court to find facts. Second, the “safety purposes” theory conflicts with the lower court’s finding that the agents did not feel physically threatened or endangered by Castellana. To say that a question is asked for safety purposes assumes that there is a perceived danger present. To justify intrusions on the basis of self-protection when there is no perceived danger is like excusing a killing as self-defense when the killer knew his victim was unarmed, peaceful and harmless. Such reasoning invites police misconduct.

Nor can the majority find comfort in Terry v. Ohio; the analogy will not withstand inspection. First, Terry is a search and seizure case; this case involves a different constitutional amendment and a different type of intrusion, compelled self-incrimination. Second, the Supreme Court specifically limited Terry’s holding to situations in which a police officer reasonably concludes “that the persons with whom he is dealing may be armed and presently dangerous.” 329 U.S. at 30, 88 S.Ct. at 1884. In this case the lower court found there was “no evidence introduced at the hearing on the motions to suppress which indicates any reason to believe that the defendant posed any physical threat to the agents’ safety.” The majority did not vacate that finding as clearly erroneous. If the agents believed Castellana was harmless, I cannot understand what “circumstances” supposedly “validate” Arwine’s question. Terry’s holding is predicated on a perceived risk of harm; it mentions no other circumstances justifying intrusive safety precautions.

For these reasons I must conclude that the majority, without support from the case law or the record, has sanctioned an unjustified omission of Miranda’s safeguards.

      . By the trial court, affirmed by a panel of this court. 488 F.2d 65 (5th Cir. 1974).

      . Producing evidence which resulted in a gambling indictment.

      . There was evidence that the agents did not know in advance of the guns’ existence, and none that they were seeking to incriminate Castellana by the inquiries.

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

      . Though its reasoning in some degree escapes us, based as it is partly on the court’s observation that since the agents placed the pistols on the desk before Castellana and left them there during the search, they could not have been in fear that he would use them. Before this was done, however, they had been unloaded. And one of the agents testified that he did feel the circumstances indicated possible danger, though not from Castellana acting alone.

      . As to the guns themselves, we note also that the Supreme Court has never, though offered the opportunity to do so in Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), extended Miranda to the “fruit” of in-custody investigations made without the prescribed warnings. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974, White, J., concurring).

      . Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

      . Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

      . The majority makes an enigmatic reference to Gustafson v. Florida, 1973, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 and United States v. Robinson, 1973, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. With all deference I am compelled to point out that this court appears to be falling into a habit of making enigmatic references to those two cases when such references are neither necessary nor relevant to the outcome of the case before it. See United States v. Sori-ano, 497 F.2d 147 [5th Cir., 1974, p. 150]


source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    HARLEM VALLEY TRANSPORTATION ASSOCIATION et al., Plaintiffs-Appellees, v. George M. STAFFORD, Chairman, Interstate Commerce Commission, Individually and in his Designated Official Capacity, and Interstate Commerce Commission of the United States, Defendants-Appellants.
    No. 685, Docket 73-2496.
    United States Court of Appeals, Second Circuit.
    Argued March 20, 1974.
    Decided June 18, 1974.

      William Hoppen, Ardsley-on-Hudson, N. Y. (Murray A. Gordon, New York City, N. Y., on the brief), for Harlem Valley Transp. Assn., and other plaintiffs-appellees.
    Thomas L. Creel, New York City, (Stuart J. Sinder, New York City on the brief), for Natural Resources Defense Council, Inc., plaintiff-appellee.
    Edmund B. Clark, Atty., Dept, of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., and Henry J. Bourguignon, Atty., Dept, of Justice; Fritz R. Kahn, Gen. Counsel, and Arthur J. Cerra, Deputy Gen. Counsel, ICC, Washington, D. C., on the brief), for defendants-appellants.
    Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Philip Weinberg and Thomas F. Harrison, Asst. Attys. Gen., New York City, on the brief for the State of New York, joined in by the States of Connecticut, Massachusetts, Pennsylvania and the City of Boston as amici curiae in support of appellees.
    William M. Moloney, Carl V. Lyon and John B. Norton, Attys. for Assn, of American Railroads, Washington, D. C. and George J. Schwarz, New York City, on the brief as amicus curiae in support of appellants.
    Before LUMBARD, FEINBERG, and MULLIGAN, Circuit Judges.
   LUMBARD, Circuit Judge:

The Interstate Commerce Commission (ICC) and its chairman, George M. Stafford, appeal from an order entered on July 6, 1973, in the Southern District of New York, which granted plaintiffs’ motion for a preliminary injunction. The plaintiffs, a group of public-interest associations, business firms and individuals who claim that they or their members will be injured economically and inconvenienced if rail service in the Northeast is terminated, instituted this action against Stafford, the ICC, and the Administrator of the Environmental Protection Agency on March 30, 1973. They claim that the ICC’s procedures under authority given it by the Interstate Commerce Act, see 49 U.S.C. § 1(18), for determining whether railroads should be permitted to abandon service on any lines, violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. On May 16 plaintiffs moved for a preliminary injunction which would bar the ICC from going forward with any rail abandonment proceedings unless its staff had prior to any hearings prepared a draft environmental impact statement when the abandonments would be “major Federal actions significantly affecting” the environment as required by NEPA § 102(2) (C), 42 U.S.C. § 4332(2)(C). In an opinion issued on June 21, 1973, and reported at 360 F.Supp. 1057, Judge Frankel held that a single judge had jurisdiction to issue such an injunction and that under our decision in Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972) (Greene County I), plaintiffs were entitled to an injunction. We affirm.

I.

As was noted in City of New York v. United States, 337 F.Supp. 150, 158 (E.D.N.Y. 1972) (City of New York I), the ICC has been slow in reacting to the directives of NEPA. On January 14, 1972, some two years after NEPA’s effective date, the Commission promulgated a regulation to implement the requirements of NEPA as it saw them. Implementation of Public Law 91-190, National Environmental Policy Act of 1969 and Related Requirements, 340 I.C.C. 431 (1972) (codified at 49 C.F.R. § 1100.-250). The regulation required that all initial papers filed with the ICC by a party should indicate whether the requested action would have an effect on the quality of the human environment. If any effect is alleged to be present, all parties must submit statements concerning the five factors that NEPA requires be evaluated in impact statements. 49 C.F.R. § 1100.250(d). When the proposed action is determined to have a significant environmental impact, a detailed impact statement will be made as part of the initial determination by an administrative law judge, which will become final (with or without modification) when the Commission enters its final order.

The Commission’s report accompanying the regulation makes it clear that no draft impact statement prepared by the Commission’s staff will be circulated prior to the hearings before an administrative law judge:

The guidelines finally adopted by the Council on Environmental Quality . . . require each agency responsible for a major Federal action significantly affecting the quality of the human environment to prepare and circulate to the Council and other appropriate government agencies a draft environmental impact statement. A final impact statement is to be similarly prepared and circulated after comments have been received on the draft statements. The essential question to be resolved at this point, which has been specifically raised by [the Department of Transportation], concerns the methods which this Commission should utilize in issuing draft and final environmental impact statements. All Commission hearings (whether oral or on the written record) in proceedings involving environmental issues will be public ones subject to the Administrative Procedure Act. We believe, and the Council has informally advised, that draft impact statements are not necessary in any of these proceedings. As a consequence, and in compliance with the Council’s requirements, an environmental impact statement will be issued together with and as part of each initial determination made as a result of any hearing (oral or written), in those cases determined to involve environmental issues. The impact statement and initial determination will be circulated to the appropriate government agencies and made available to the public in the manner prescribed by the Council.

340 I.C.C. at 441-42 (emphasis original).

While the Commission promulgated its regulation on January 14, 1972, the report and regulation were not printed and served until February 3. In the interim, on January 17, this court decided Greene County I. There the Federal Power Com-ihission (FPC) in contested cases had not required its staff to prepare draft impact statements prior to hearings but instead required an applicant to submit its own detailed statement on the five factors which NEPA requires be evaluated. Relying on the language in NEPA § 102(2) (C) that provides that an impact statement “shall accompany the proposal through the existing agency review processes,” we held that the FPC’s procedure did not comply with NEPA. We noted that there was a danger of reliance on self-serving assumptions made by the applicant in the FPC’s procedures. We also said that the FPC’s procedure might place the burden of providing effective analysis of environmental factors on in-tervenors whose resources generally are limited instead of upon the Commission as Congress intended. 455 F.2d at 420-421. The then-existing Council on Environmental Quality (CEQ) Guidelines, 36 Fed.Reg. 7724 (1971), supported the FPC’s argument that its statement need not be circulated prior to any formal hearing, but we said that the guidelines flew in the face of the NEPA requirement that the statement accompany the proposal through the agency review processes, of which the hearings were certainly part. 455 F.2d at 421-422. Consequently, we held that the FPC staff must prepare a draft impact statement prior to hearings.

The ICC was not unaware of Greene County 1. On February 18, 1972, it made a motion, which was denied, to submit a memorandum in support of the FPC’s petition for a rehearing. The ICC memorandum stated that Greene County I would require it to change its procedures drastically. The Solicitor General in his petition for certiorari, which, as noted above, the Supreme Court denied, also stated that Greene County I would affect the ICC and other agencies as well as the FPC. Despite these concessions, the ICC made no effort to modify its procedures after certiorari was denied in Greene County I. Instead the ICC argued in the district court that Greene County I was distinguishable. Judge Frankel held that it was not. 360 F.Supp. at 1065. The Department of Justice in the district court agreed with plaintiffs that Greene County I was not distinguishable, but now argues before us that it is.

Subsequent to the district court’s decision here, the CEQ on August 1, 1973, over the ICC’s protest, promulgated new guidelines for implementing NEPA, which incorporated the requirements of Greene County I. 38 Fed.Reg. 20550. On December 27,1973, the ICC petitioned the CEQ for an amendment of its guidelines. The ICC argued that following the guidelines would require a 20 percent increase in its staff and appropriations and would hamper the Commission’s primary function of regulating transportation. The Commission also repeated its argument that it was not bound by Greene County I. In a letter dated February 25, 1974, Russell W. Peterson, Chairman of the CEQ, denied the requested amendment. He pointed out that while implementing NEPA would naturally take more staff effort no other agency had estimated that a 20 percent increase was required to meet the congressional mandate that environmental matters be considered. Peterson also asserted that NEPA does not require that an agency subordinate its primary mission to environmental consideration. On the matter of the timing of the impact statement, Peterson made a proposal which had been discussed with the ICC staff. Under this proposal, the administrative law judge would determine in the first phase of the hearing whether an impact statement was required under NEPA. If one was, he would recess the hearing and prepare the statement. The hearing would then resume and the public would be given opportunity to comment on the environmental issues, with the aid of the impact statement. We have not been informed whether any effort has been made to implement this suggestion.

II.

Prior to reaching the merits of this case, we are faced with several procedural hurdles. The first of these, and the one urged most strenuously by the ICC, is that a single judge lacks jurisdiction to issue an injunction here since only a three-judge district court under the Urgent Deficiencies Act, 28 U.S.C. §§ 2321-2325, can issue such an injunction. That statute provides that an interlocutory or permanent injunction restraining the enforcement, operation, or execution of any “order” of the ICC shall not be granted unless the application is heard by a three-judge district court under 28 U.S.C. § 2284.'

It is clear that not every determination of the ICC is an “order” for purposes of the Urgent Deficiencies Act. See, e. g., United States v. ICC, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949); Shannahan v. United States, 303 U.S. 596, 58 S.Ct. 732, 82 L.Ed. 1039 (1938); United States v. Los Angeles & S.L.R.R., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651 (1927); United States v. Illinois Cent. R.R., 244 U.S. 82, 37 S.Ct. 584, 61 L.Ed. 1007 (1917); New York, O. & W. Ry. v. United States, 14 F.2d 850 (S.D.N.Y.1926), aff’d per curiam, 273 U.S. 652, 47 S.Ct. 334, 71 L.Ed. 823 (1927). In determining that the regulation at issue here was not the sort of order for which review is provided under the Urgent Deficiencies Act, the district court relied, 360 F.Supp. at 1063, upon the definition contained in United States v. Los Angeles & S.L.R.R., supra. The Supreme Court there said that review will not lie under the Urgent Deficiencies Act when the “order” complained of

does not command the carrier to do, or to refrain from doing, any thing; which does not grant or withhold any authority, privilege or license; which does not extend or abridge any power or facility; which does not subject the carrier to any liability, civil or criminal; which does not change the carrier’s existing or future status or condition; which does not determine any right or obligation.

273 U.S. at 309-310, 47 S.Ct. at 414. This definition of “order” may no longer be precisely accurate since decisions containing certain “negative” orders are now reviewable, see Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147 (1939), as well as decisions declaring that certain carriers are subject to the jurisdiction of the ICC, see Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910 (1956). Be that as it may, we agree with Judge Frankel that a procedural regulation specifying the point at which in an abandonment proceeding the ICC must prepare its impact. statement under NEPA is not the sort of determination that must be reviewed by a three-judge court under the Urgent Deficiencies Act.

The Supreme Court has “frequently pointed out the importance of limiting the three-judge court procedure within its expressly stated confines.” United States v. ICC, supra, 337 U.S. at 443, 69 S.Ct. at 1420. The Supreme Court noted in United States v. Griffin, 303 U.S. 226, 58 S.Ct. 601, 82 L.Ed. 764 (1938), that the extraordinary remedy of a three-judge court was designed to “guard against ill-considered action by a single judge and to avert the delays ordinarily incident to litigation” in cases of public importance and widespread effect. 303 U.S. at 233, 58 S.Ct. at 604. While the manner in which the ICC decides to implement NEPA may be of public importance, an injunction such as that granted by the district court will not seriously affect the public interest by preventing or obstructing action by the Commission under the Interstate Commerce Act. See United States v. Griffin, supra, 303 U.S. at 237, 58 S.Ct. 601. Requiring the ICC to prepare impact statements prior to hearings may inconvenience it but does not prohibit any effort by the Commission to regulate carriers subject to its jurisdiction. The policy behind the Urgent Deficiencies Act, therefore, does not extend to this case.

Pennsylvania v. United States, 361 F.Supp. 208 (M.D.Pa.), aff’d mem., 414 U.S. 1017, 94 S.Ct. 440, 38 L.Ed.2d 310 (1973), comes closest to supporting the ICC’s contention. There a challenge that was made to new ICC rules for disposing of railroad applications for abandonment was heard by a three-judge court. This decision does not, however, require that we conclude that a three-judge court is necessary here. First, the challenge to the rules at issue there was on the ground that they changed substantive law, not that they failed to meet the procedural mandate of another statute. Compare National Motor Freight Traffic Association, Inc. v. United States, 268 F.Supp. 90 (D.D.C.1967). Second, the opinion of the district court in that case does not even discuss the jurisdictional issue. We, therefore, cannot regard that decision as holding that a three-judge court is required here; in any event we conclude that one is not required.

The second procedural issue is whether we have jurisdiction to review the ICC’s rules under some other statutory provision. We agree with the district court that this is a proper case for an “action in the nature of mandamus” under 28 U.S.C. § 1361. Many years ago the Supreme Court held that mandamus will lie for the failure of the ICC to perform a statutory duty, United States ex rel. Kansas City S. Ry. v. ICC, 252 U.S. 178, 40 S.Ct. 187, 64 L.Ed. 517 (1920). The issue here is whether the ICC has a statutory duty under NEPA to have its staff prepare impact statements when required by NEPA prior to any hearings. If there is such a duty, we can enforce it under § 1361. See Leonhard v. Mitchell, 473 F.2d 709, 712-713 (2d Cir.), cert. denied, 412 U.S. 949, 93 S.Ct. 3011, 37 L.Ed.2d 1002 (1973); Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971); Casarino v. United States, 431 F.2d 775, 777 (2d Cir. 1970); Feliciano v. Laird, 426 F.2d 424, 429 (2d Cir. 1970); Safir v. Gibson, 417 F.2d 972, 978 (2d Cir. 1969), cert. denied, 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970); United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). See generally Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308 (1967).

As a final procedural argument, the ICC argues that judicial review should be barred for failure to exhaust administrative remedies. It is claimed that the Commission’s rule should be evaluated in the light of how the Commission performs in specific cases. As the district court noted, 360 F.Supp. at 1063, the ICC’s argument is probably more correctly subsumed under the rubric of finality or, perhaps, ripeness for review rather than exhaustion of remedies since the Commission has made its position clear on this matter. See Mc-Kart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938).

The Supreme Court has said that “the relevant considerations in determining finality are whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.” Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970). Here there is no specific proceeding to disrupt since we are concerned with a rule that is applied to all ICC proceedings, and the ICC has determined, as it views them, its obligations under NEPA. This case is not like those in which we have recently dismissed petitions to review on the grounds of nonfinality. No interlocutory challenge to a specific environmental impact statement is made here, as was the case in Greene County Planning Board v. FPC, 490 F.2d 256 (2d Cir. 1973) (Greene County II), nor does this case involve the interlocutory exclusion of certain matters from a hearing as was the case in Ecology Action v. AEC, 492 F.2d 998 (2d Cir. 1974). See also New York Shipping Association, Inc. v. FMC, 495 F.2d 1215 (2d Cir. 1974). Rather we are asked to review a set of procedural rules for implementing NEPA that will apply to all ICC abandonment proceedings. In similar circumstances the District of Columbia Circuit has implicitly held that judicial review of the decision on how an agency will implement NEPA is proper. Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971).

As far as ripeness for review is concerned, the issue here is the legal one of determining whether the ICC has complied with NEPA. The issue concerns all abandonment proceedings. A denial of review now would severely strain the financial resources of environmentalist intervenors, such as plaintiffs here, who would be forced to raise the issue of when the ICC must prepare its draft impact statement in the some 320 abandonment proceedings that were pending nationwide as of January 1974. A delay in review could have serious consequences to the ICC and all interested parties if a court later determined that the procedures the ICC had employed in several hundred proceedings were inadequate under NEPA. We, therefore, conclude that the matters presented here are ripe for judicial review and that we should reach the merits. See generally Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

III.

It is, of course, clear that the requirements of NEPA apply to railroad abandonment proceedings. City of New York I, supra, 337 F.Supp. at 158-160. The ICC does not claim otherwise, but instead it accuses the district court of engaging in a “wooden application” of Greene County I, although at least two other courts have said or implied that Greene County I applies to the ICC. City of New York v. United States, 344 F.Supp. 929, 939 (E.D.N.Y.1972) (City of New York II); Students Challenging Regulatory Agency Procedures v. United States, 346 F.Supp. 189, 193 n. 4 (D.D.C.1972), rev’d for lack of jurisdiction, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

The ICC and Association of American Railroads, as amicus curiae, claim that Greene County 1 is distinguishable because there it was clear that an impact statement was required while it is not clear in what particular ICC proceedings a statement may be required and because the FPC staff, unlike the ICC staff, participates in examining applications prior to hearings. Concerning the first alleged distinction, we shall develop below our belief that the Commission’s staff must participate in the threshold determination of whether an impact statement is required. In any event, the policies behind the decision in Greene (Jounty I, the dangers that an agency will rely on self-serving statements by an applicant and will place the burden of analyzing environmental issues upon intervenors, apply with equal force here as in that case, even though there may be some initial doubt as to whether an impact statement is required.

As far as the second alleged distinction is concerned, it ignores the fact that in Greene County I we chided the FPC for not using its staff and quoted from our earlier decision in Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 614 (2d Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966):

“In this ease, as in many others, the Commission has claimed to be the representative of the public interest. This role does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive active and affirmative protection at the hands of the Commission.”

455 F.2d at 419. Moreover, the ICC has recognized elsewhere that it does have an affirmative duty under NEPA to evaluate environmental issues, for it has said: “An agency’s responsibility pursuant to the NEPA is not simply ‘to [sit] back, like an umpire, and resolve adversary contentions at the hearing [stage]. Rather, it must itself take the initiative of considering environmental values at every distinctive and comprehensive stage of [the] process.’ ” 340 I.C.C. at 440, quoting Calvert Cliffs’, supra, 449 F.2d at 1119.

The steps, however, that the ICC has chosen to take in implementing NEPA just do not meet the burden imposed by this affirmative duty. The ICC is apparently content to place the burden on intervenors whose resources might be limited to challenge any environmental statements that the railroads might make in their applications for abandonment. If intervenors do not challenge these statements, they may be accepted as true. This passive approach by the Commission shifts to intervenors a large part of the burden of evaluating environmental issues which Congress placed on agencies of the government such as the ICC when it passed NEPA. This is precisely what we complained of in Greene County I. We also noted there that it is important that the agency’s evaluation of environmental issues be made before any hearings on the merits so that this evaluation and the public’s comments thereon would be considered before the initial decision since after that the chance of the public’s meaningful participation decreases.

Furthermore, the ICC ignores that we held in Greene County I that the literal language of NEPA requires that impact statements be prepared prior to hearings since the statements must “accompany the proposal through the existing agency review processes,” of which a public hearing under the Federal Power Act is a part. 455 F.2d at 421-422. We see no basis in the language of NEPA or the Interstate Commerce Act for not likewise holding that hearings required by the latter Act, see 49 U.S.C. § 1(19), are part of the agency review processes. While NEPA only supplements the Interstate Commerce Act and does not repeal any part of it, United States v. Students Challenging Regulatory Agency Procedures, supra, 412 U.S. at 694, 93 S.Ct. 2405, we see nothing in that Act that prohibits the ICC staff from investigating environmental matters and preparing a draft impact statement, if needed, prior to any public hearings.

IY.

We now turn to the adequacy of the tentative proposal of the CEQ. We had considered remanding this case to the district court for further hearings on this proposal since it initially appeared to meet the concerns expressed in Greene County I, especially since an alternative scheme of one hearing on the impact statement and one hearing on the proposal was suggested there. 455 F.2d at 421 n. 23. But it was conceded at argument that the administrative law judge would have no staff assistance in making the threshold determination of whether an impact statement is required. This emphasizes the dangers of reliance upon self-serving statements by the railroads and the placing of the burden of analyzing environmental issues upon interven-ors.

Section 102(2) (B) of NEPA, 42 U.S. C. § 4332(2) (B), provides that an agency shall identify and develop methods and procedures which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making. In Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973) (Hanly II), we held that this subsection as well as subsections (A) and (D) applies whether or not an impact statement is required. See also Hanly v. Mitchell, 460 F.2d 640 (2d Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972) (Hanly I); Hanly v. Kleindienst, 484 F.2d 448 (2d Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974) (Hanly III). We said in Hanly II:

Since an agency, in making a threshold determination as to the “significance” of an action, is called upon to review in a general fashion the same factors that would be studied in depth for preparation of a detailed environmental impact statement, § 102(a) (B) requires that some rudimentary procedures be designed to assure a fair and informed preliminary decision. Otherwise the agency, lacking essential information, might frustrate the purpose of NEPA by a threshold determination that an impact statement is unnecessary.

471 F.2d at 835.

Following Hanly II, we do not see how the administrative law judge without any staff help can make a fair and informed preliminary decision on whether an impact statement is required. The ICC admits in its brief that the statements submitted by the railroads will not be unbiased, and the Commission cannot always count upon intervenors to raise essential issues. It seems clear to us that some staff investigation and evaluation will generally be necessary to make possible an informed threshold decision of whether an impact statement is required. •

We realize that there have to be limits to what the ICC must investigate and consider under NEPA if it is to be capable of rendering a decision on any given matter. See Cramton & Berg, On Leading a Horse to Water: NEPA and the Federal Bureaucracy, 71 Mich.L. Rev. 511 (1973). The requirements of what the agency must consider in making the determination of whether an impact statement is necessary are governed by a rule of reason, similar to that used in determining whether certain matters must be considered in the impact statement itself. See Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 834 (1972). But while we recognize there are limits to what may reasonably be expected from agency compliance with NEPA, we cannot excuse the noncompliance with NEPA such as the ICC here seeks to justify.

We are reminded by Mr. Justice Harlan that guideline decisions “suffer the danger of pitfalls that usually go with judging in a vacuum. However carefully written, they are apt in their application to carry unintended consequences which once accomplished are not always easy to repair.” Sanders v. United States, 373 U.S. 1, 32, 83 S.Ct. 1068, 1085, 10 L.Ed.2d 148 (1963) (dissenting opinion). It would therefore be inappropriate for us to suggest how much staff assistance the administrative law judge should have in individual cases before he makes the threshold decision of whether an impact statement is required. There may be cases in which no assistance would be necessary. But we remind the ICC that under Hanly II it has an affirmative obligation to develop a reviewable record of this threshold determination, see 471 F.2d at 836, and its decision on this matter must be sufficiently reasoned so that a reviewing court can determine whether or not it was arbitrary or capricious, see 471 F.2d at 831.

Accordingly, the order of the district court is affirmed.

      . The ICC argues that the procedural rule at issue here is an “order” because noncompliance with it can mean dismissal of an application and because the Commission will be bound by it. But this is generally the case with any procedural rule and the argument does not explain why this procedural rule merits extraordinary review by a three-judge court when other procedural determinations of the ICC do not.

      . It was argued below that plaintiffs lack standing to make their claims. Judge Frankel held that they did have standing, 360 F.Supp. at 1064-1065, and the appellant has not repeated this argument on appeal. See generally United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 683-690, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

      . Once procedures and principles become established, and precedents have been followed and approved, it will appear that many situations may require little or no staff work prior to an initial determination regarding the need for an impact statement.


author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Andrew FUREY, Appellant.
    No. 1098, Docket 74-1410.
    United States Court of Appeals, Second Circuit.
    Argued June 5, 1974.
    Decided July 2, 1974.

      Paul B. Bergman, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., Raymond J. Dearie, David A. De-Petris, Asst. U. S. Attys., of counsel), for appellee.
    James M. Furey, Hempstead, N. Y. (Furey & Mooney, Hempstead, N. Y., on the brief), for appellant.
    Before KAUFMAN, Chief Judge, MANSFIELD and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

Andrew Furey appeals from a judgment entered in the United States District Court for the Eastern District of New York on March 8, 1974, following a non-jury trial before Hon. John F. Dool-ing, Jr., finding appellant to be a juvenile delinquent in violation of 18 U.S.C. § 5031 and committing him in accordance with 18 U.S.C. § 5034 to the custody of the Attorney General until he reaches the age of 21. The judgment is based upon an information charging that Furey possessed with intent to distribute about 1*4 pounds of opium in violation of 21 U.S.C. § 841(a) (1).

During a routine examination of incoming overseas mail, inspectors discovered the presence of opium in a 1^4 pound package which was addressed to the appellant Andrew Furey. On December 19, 1972, the package was duly delivered to Furey’s home under controlled conditions by a regular letter carrier of the U.S. Postal Service. Shortly thereafter, while two of the surveilling agents were entering appellant’s home through the front door, a third agent observed someone throwing a parcel from a back window of an upstairs bedroom, the same room in which the appellant was apprehended by the other agents. The parcel consisted of one slab of opium and another of hashish, wrapped in plastic.

Furey does not complain on this appeal about the seizure of these drugs, but rather contends that the district court erred in failing to suppress certain letters taken from a bureau in his bedroom. The argument is frivolous in view of the substantial evidence to support the district court’s findings that the agents reasonably believed that the drugs thrown from the window did not comprise all the drugs which had been delivered to Furey’s home and that the search of his bureau did not take place until after the agents had procured a warrant and had further obtained the consent of Furey’s mother to search the premises.

Furey’s other argument on appeal, however, is more substantial. Furey urges that the district court erred in denying his motion to dismiss, which was based on the ground that the Government was not ready for trial within the time prescribed by the Eastern District’s Plan for Achieving Prompt Disposition of Criminal Cases (the Plan). Under Rule 4 of the Plan “the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest.” Rule 4 further provides that if the Government is not ready within the six-month period, the indictment shall be dismissed with prejudice, unless the period has been tolled under one or more of the exceptions listed in Rule 5 or the Government’s neglect is found to have been excusable.

Furey was arraigned on the afternoon of his arrest, December 19, 1972, before Magistrate Brisach on a complaint, signed by a special agent of the United States Bureau of Customs, charging that Furey had possessed with intent to distribute 1 ^4 pounds of opium in violation of 21 U.S.C. § 841(a)(1). He was released from custody a few days later upon the giving of a $5,000 surety bond.

It soon became clear that Furey, who was born on April 23, 1955, had not yet become 18 years of age and was therefore a juvenile within the meaning of 18 U.S.C. § 5031. Because of his juvenile status, there were two ways in which the case against Furey could have proceeded: (1) as an adult offender, which would have required an express direction by the Attorney General; or (2) as a juvenile delinquent, which required the appellant’s consent. 18 U.S.C. § 5032. The determination of the alternative to be followed here was submitted to the Attorney General, although it is not clear when this was done. In any event, sometime in February or early March, 1973, the determination was made that the Attorney General would not direct criminal proceedings against Furey if he would consent to the juvenile delinquency procedure.

In March and April, 1973, there was apparently some discussion between counsel from which the prosecutor got the impression that Furey would not only consent to delinquency proceedings, but also would not contest the adjudication. Little else, however, transpired until June 18, 1973, when the Assistant United States Attorney sent a letter to defense counsel informing him that, in accordance with 18 U.S.C. § 5033, the matter would be heard to obtain consent to proceed against the defendant as a juvenile delinquent on June 21, 1973, before Hon. Orrin G. Judd, United States District Judge for the Eastern District. The hearing took place as scheduled and the information charging juvenile delinquency was filed with the defendant’s consent appended to it. Although under the Eastern District’s Local Rules, Judge Judd, having supervised the taking of the consent, would normally have been assigned the case, it was, for some unexplained reason, randomly assigned to Judge Dooling. The precise assignment date is not known but it was sometime before September 1, 1973.

Nothing further took place until October, 1973 at which time the Assistant made inquiry of Judge Dooling as to the status of the matter and an initial conference was scheduled for December 13th. At that conference defense counsel announced his intention to move for dismissal on the ground that the Government had not complied with Rule 4 of the Eastern District’s Plan. The Assistant advised that the Government was ready to go to trial, although a formal notice of readiness was not filed until December 21, 1973. On the day following the conference, the defendant filed his motion to dismiss, which Judge Dool-ing, after a hearing, denied in a memorandum and order dated December 27, 1973. Despite the fact that almost a year had elapsed between the defendant’s arrest and the Government’s expression of readiness for trial, Judge Dooling found no violation of Rule 4 of the Plan:

No purposive delay by the Government has occurred. Inadvertence and administrative confusion compounded by clerical omissions on the parts of the Assistant United States Attorney, the undersigned and the Clerk’s office have caused the delay ....
The case is one in which, if it is within Rule 4 of the Plan, falls into the class of cases in which the six months limitation period would be extended because the delay has been occasioned by exceptional circumstances within the idea of Rule 5(h).
However, June 21st, 1973, is the base-line date for this case. On that date for the first time the defendant was charged as a juvenile delinquent. The notice of readiness was filed on December 21, 1973, and on December 13, 1973, the Government unequivocally advised defendant and the Court that it was ready and willing and anxious to proceed . . . The case will, therefore, be heard on January 2, 1974, on the basis that the Government was ready within six months of June 21,1973 ....

Judge Dooling did not consider' the issue of whether the Government’s conduct here, assuming it constituted “neglect,” should be characterized as “excusable neglect.”

On January 2, 1974, the date set for the juvenile delinquency hearing, Fu-rey petitioned this court for a writ of mandamus and moved for a stay of prosecution. Circuit Judge Henry J. Friendly denied the motion for the stay and accordingly dismissed the petition for mandamus as moot. Furey v. Dooling, Docket No. 74-1004 (2d Cir. Jan. 2, 1974).

As a matter of policy we see no reason why juvenile delinquency proceedings should be excluded from the coverage of the Plan. The same policies which precipitated the enactment of rules providing for the prompt disposition of criminal proceedings are applicable whether the person charged is an adult or a juvenile. Thus, the deterrence afforded by prompt disposition, the potential prejudice to any defense arising from delay as well as the disruption and anxiety created by a criminal charge, are present whether the accused be a juvenile or an adult.

It is, of course, true that the Plan is directed toward the “Prompt Disposition of Criminal Cases,” and we have recently observed that “[proceedings under the [Federal Juvenile Delinquency] Act are plainly different from the ordinary criminal prosecution,” United States v. Torres, 500 F.2d 944, at 948 (2d Cir. June 14, 1974). It has also been recognized, however, that delinquency proceedings are not devoid of criminal aspects and the courts have carefully shunned the approach of determining the rights of juveniles by characterizing delinquency proceedings as either “criminal” or “civil.” See McKeiver v. Pennsylvania, 403 U.S. 528, 541, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (plurality opinion) . In view of the salutary purposes of the Plan, which are in no way inhibitory of the goals of the juvenile court but are rather compatible with its protective and paternalistic procedure (McKeiver v. Pennsylvania, supra, 403 U.S. at 545, 91 S.Ct. 1976 at 1986), we are persuaded that juvenile delinquency adjudications were not intended to be beyond the scope of the Plan. See also In re Gault, 387 U.S. 1, 17-18 & n. 23, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Having concluded that the Plan is applicable here, we cannot agree that the baseline is June 21, 1973, the date the information and appellant’s consent were filed. Rule 4 of the Plan expressly provides that the six-month period runs “from the date of the arrest . or the filing . . . of a formal charge upon which the defendant is to be tried . . . whichever is earliest.” (emphasis added). Here, the appellant was arrested on December 19, 1972 for the same offense that served as the basis for the delinquency adjudication.

On June 21st, the nature of the proceeding against Furey did change from that of a felony prosecution to that of a delinquency adjudication, but this does not justify ignoring the plain language of Rule 4, especially since the Government’s proof in the delinquency proceeding was no different than that which would have been required in the felony prosecution had that been pursued. It is no answer to suggest that Furey by consenting to juvenile treatment avoided the severe penalties of a felony conviction. Making a juvenile’s right to speedy adjudication depend upon his refusing to consent would introduce into the juvenile court process a factor which could be nothing but counter-productive. Counsel, faced with factual situations like that presented here (six months having elapsed prior to the consent hearing), might well feel bound to balance the risks of a felony conviction against the possibility of having the charges dismissed for failure to comply with the Plan. This would introduce a factor which is contrary to “the strong public interest in encouraging resort to the procedures for handling and treatment of juvenile delinquents established by the Federal Juvenile Delinquency Act.” United States v. Torres, supra, 500 F.2d at 949. (emphasis added).

Finally, we find no significance to the argument that a juvenile profits from delay in adjudication since he cannot be incarcerated beyond age 21. This ignores the public interest in prompt adjudication, as well as the fact that the supervision of juvenile delinquents is aimed at rehabilitation rather than punishment. We are not at all persuaded that a juvenile gains by avoiding adequate supervision today, only to suffer imprisonment for crimes committed tomorrow.

The Government has urged on this appeal that even if we consider that the six-month period began to run on the day of appellant’s arrest, we should exclude the time prior to his consent on the grounds that during that time Furey was “incompetent” to stand trial within the meaning of Rule 5(a) and “unavailable” for trial under Rule 5(d). Since we must assume that the drafters employed these terms in their ordinary usage, we reject the Government’s contentions. There is no claim that Furey may have been mentally unfit to stand trial, nor was there any question of fact as to his age. His status did not preclude prompt disposition. Moreover, he was clearly “available” within the ordinary meaning of that term. Cf. United States v. Rollins (II), 487 F.2d 409, 412 (2d Cir. 1973). At least after the Attorney General’s determination in February or early March, all the prosecutor had to do was schedule the consent hearing to determine whether the case would proceed as a delinquency adjudication or as a felony prosecution. Due diligence would have produced the appellant so far as the record before us would indicate.

The Government has also urged that the period prior to consent in juvenile delinquency proceedings should always be considered to constitute “exceptional circumstances” within the meaning of Rule 5(h). Admittedly, because of the necessity of obtaining (1) the direction of the Attorney General and (2) the juvenile’s consent, such proceedings do present distinct problems, and the district courts, upon further reflection, may find it advisable to amend their prompt disposition plans to incorporate a specific provision governing juvenile proceedings. However, as the Plan exists, we cannot accept the Government’s construction, which would again have the effect of having the six-month period commence to run on the day the information and consent are filed rather than the date of arrest, which is the clear intent of the Plan. If there is anything that Rule 5(h) was not intended to cover, it is the blanket type of exclusion proposed by the Government here. As Chief Judge Kaufman pointed out in United States v. Rollins (I), 475 F.2d 1108, 1110 (2d Cir. 1973), '“Other periods of delay occasioned by exceptional circumstances,’ was intended to cover extraordinary occasions that the drafters could not envision . . . . ” See also United States v. Favaloro, 493 F.2d 623, 625 (2d Cir. 1974). Juvenile delinquency proceedings can hardly be so characterized.

Neither can we agree with the district judge that the delay in this case was due to “exceptional circumstances.” The determination of the Attorney General came in a reasonably timely fashion. Less than four months had elapsed since the arrest and, as the district court recognized, the case presented no particular trial problems. Apparently there was an administrative mix-up in the Clerk’s Office regarding the assignment of the case and Judge Dooling did not call the case up for action, but we fail to see why these facts should be characterized as “exceptional circumstances” so as to relieve the Government of its obligation of timely filing its notice of readiness. The Eastern District’s prosecutors were well aware that the better practice was to file the notice of readiness with? the Clerk’s Office and not directly with the assigned judge. United States v. Pierro, 478 F.2d 386, 389 (2d Cir. May 9, 1973). Nor have we been presented with any unusual conditions in the United States Attorney’s Office which rise to the level of “exceptional circumstances.” See United States v. Favaloro, supra. The prosecutor here, of course, not only was under the impression that Furey would consent to delinquency proceedings but also that the proceedings would not be contested. This misunderstanding, however, does not bring the case within Rule 5(h). Unlike adult prosecutions in which plea negotiations may in some instances constitute exceptional circumstances, see United States v. Scafo, 470 F.2d 748 (2d Cir. 1972), juvenile proceedings are of such nature that there is nothing about which to negotiate. 18 U.S.C. §§ 5031 & 5034 do not distinguish underlying offenses and there is no claim here that the Attorney General’s determination was conditional on the juvenile proceedings being uncontested. Moreover, whether the proceeding is contested or not, we are advised that in the Eastern District an evidentiary hearing is held to insure that the juvenile did in fact violate the law.

Having found that the Plan is applicable and that none of the Rule 5 exceptions urged are pertinent, there still remains the possibility that the neglect of the Government here was “excusable” under Rule 4 of the Plan. See United States v. Bowman, 493 F.2d 594 (2d Cir. 1974). This was a question not considered below and therefore no findings were made on the point. We do not find the record before us is sufficiently developed to make the determination here. We are not aware that the application of the Plan to juvenile proceedings has ever been decided before this appeal. The understanding of the prosecutor of the Plan’s applicability at the time of the procedures employed below would possibly bring the case within United States v. Bowman, supra.

We therefore vacate the judgment of the district court and remand for further proceedings on the appellant’s motion to dismiss. The district court, after considering such additional evidence as may be relevant, should make findings of fact on the issue of excusable neglect. If it determines that the motion should be denied, it shall enter a new final judgment, thereby preserving Fu-rey’s right to further appellate review. In the event it determines that the motion should be granted, the charges against Furey should be dismissed.

Judgment vacated and case remanded.

      . The Plan, which, in accordance with Fed. R.Crim.P. 50(b), was adopted by the judges of the United States District Court for the Eastern District of New York and approved by the Judicial Council, became effective on April 1, 1973 and therefore governs the disposition of this case. See Hilbert v. Dooling, 476 F.2d 355, 356 n.2 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973). The Eastern District’s Plan, like that of the Southern District, adopted many of the provisions of the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (which were superseded by the district courts’ prompt disposition plans) and therefore many court decisions under those Rules have precedential value when construing provisions of the Plan. United States v. Bowman, 493 F.2d 594, 595 n. 3 (2d Cir. 1974).

      . Rule 4 of the Plan provides:
      In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a comxdaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, and if the defendant is charged only with non-capital offenses, the defendant may move in writing, on at least ten days’ notice to the government, for dismissal of the indictment. Any such motion shall be decided with utmost promptness. If it should appear that sufficient grounds existed for tolling any portion of the six-months period under one or more of the exceptions in Rule 5, the motion shall be denied, whether or not the government has previously requested a continuance. Otherwise the court shall enter an order dismissing the indictment with prejudice unless the court finds that the government’s neglect is excusable, in which event the dismissal shall not be effective if the government is ready to proceed to trial within ten days.

      . The Advisory Committee on the Rules in their notes in connection with Fed.R.Crim.P. 50(b) recognized that the public has a substantial interest in the prompt disposition of criminal matters, since “it is the certain and prompt imposition of a criminal sanction rather than its severity that has a significant deterring effect upon potential criminal conduct.” See also United States v. Rollins (II), 487 F.2d 409, 413 (2d Cir. 1973).

      . In United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971), the Supreme Court observed:
      Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.

      . Rule 5(a) directs that we exclude from the six-month period:
      The period of delay while proceedings concerning the defendant are pending, including but not limited to proceedings for the determination of competency and the period during which he is incompetent to stand trial, pre-trial motions, interlocutory appeals, trial of other charges, and the period during which such matters are sub judiee.

      . Under Rule 5(d), we exclude from the six-month period:
      The period of delay resulting from the absence or unavailability of the defendant. A defendant should be considered absent whenever his location is unknown. A defendant should be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence.

      . “Other periods of delay occasioned by exceptional circumstances” are excluded from the six-month period by Rule 5 (h).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alvin Benton CELCER and George Russel Slagle, Defendants-Appellants.
    No. 74-1631
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 5, 1974.
    Rehearing and Rehearing En Banc Denied Dec 5, 1974.
    Charles H. Erwin, Dallas, Tex., for defendants-appellants.
    Ronald G. Houdyshell, Dallas, Tex. (Court-appointed), for Slagle.
    Frank D. McCown, U. S. Atty., R. H. Stephenson, W. E. Smith, Asst. U. S. Attys., Ft. Worth, Tex., for plaintiff-ap-pellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

Appellants Alvin Benton Celcer and George Russel Slagle were indicted, with co-defendants Earnest English and William Ewing, under 18 U.S.C. § 371, for conspiracy to transport stolen goods worth $5000 or more — a Slickcraft boat and boat trailer — in interstate commerce, knowing the goods to have been stolen, in violation of 18 U.S.C. § 2314. Martin Vanaman and Jerry Birdwell were named as unindicted co-conspirators. Appellants Celcer and Slagle and co-defendant English were tried before a jury November 26 and 27, 1973, and found guilty. On this appeal Celcer seeks reversal on the grounds that: (1) the evidence was insufficient to establish his knowing participation in the conspiracy; (2) the prosecutor improperly elicited from co-conspirator Bird-well a claim of Fifth Amendment privilege and then argued that fact before the jury; and (3) the government improperly offered evidence of extraneous offenses allegedly committed by Celcer. Slagle argues that his conviction should be reversed because: (1) the prosecutor improperly commented on Slagle’s failure to produce witnesses to corroborate his defense; and (2) the trial court failed to instruct the jury that there was no evidence that any witnesses were available to corroborate or refute Sla-gle’s defense and that the jury should draw no inferences from Slagle’s failure to produce such witnesses. We affirm.

The government amply established Appellant Celcer’s knowing participation in the conspiracy. Prior to the May 23, 1971, theft of the boat and trailer from Leisure Hours boat company in Addison, Texas, Celcer went with Vanaman and Ewing to see the boat. Vanaman testified that the three of them discussed stealing the boat, and that Celcer’s pickup was to be used to deliver the boat to Salt Lake City, Utah. Celcer brought his pickup to Vanaman’s garage; when the pickup broke down in Wyoming, Celcer provided a Ryder rent truck to carry the boat the rest of the way to Utah; he took delivery of the stolen boat and trailer from Slagle and English in Salt Lake City; and he traded the boat, trailer, and pickup to one James Cullen for a B-23 bomber and parts. Celcer concedes that the evidence introduced by the government, if believed by the jury, was sufficient to establish the existence of a conspiracy. Clearly Celcer’s conduct was such that the jury could- have believed beyond a reasonable doubt that Celcer shared a common purpose with the other conspirators. We conclude that the government provided far more than the “slight evidence” needed to prove Celcer’s knowing participation in the conspiracy. See United States v. Morado, 5 Cir. 1972, 454 F.2d 167, 175, cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116; United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 830, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. We find no merit in Celcer’s claims of prosecutorial misconduct.

Appellant Slagle alleges that he was denied his right to a fair trial because the prosecutor improperly commented on Slagle’s failure to produce witnesses to corroborate his story and because the district judge did not adequately remedy the harm. Slagle sets forth the objectionable portion of the Assistant United States Attorney’s clos-. ing argument as follows:

Don’t you know if that boat, the size of it and in this condition, in the middle of the morning while you have got construction workers pounding on nails and whatever on that apartment there wouldn’t- have been one of them noticing that thing out there on the prairie, that they would bother to find out? They know where the apartment is they say now. • They didn’t bother to tell anybody about this apartment before. Now they know They wouldn’t have found out who the construction workers were, at least one and asked some people, do you remember seeing that big boat at 10:00 o’clock in the morning parked out there in the middle of a field? Think that wouldn’t have drawn some attention? (Transcript, p. 310).

This statement does not suggest the existence of any witnesses who would be available to appellant but not to the government. Although it indicates that Slagle might have called additional witnesses, it does not state that he was under any duty to do so. A full reading of the closing argument reveals that the quoted paragraph was but a small part of a lengthy attack on the credibility of Slagle’s defense.

Immediately after the objectionable comment was made the trial judge instructed the jury that “[t]he burden is on the Government.” And in its general charge to the jury the court stated:

In a criminal prosecution the burden is wholly upon the government to prove beyond doubt every essential element of the offense alleged. The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

Under these circumstances we believe that any possible error was rendered harmless beyond a reasonable doubt. United States v. Clarke, 5 Cir. 1972, 468 F.2d 890; cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James H. McCONNELL and Robert Connerly, Defendants-Appellants.
    No. 74-1808
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 12, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 15, 1974.
    Alvin M. Binder, Jackson, Miss., for McConnell.
    J. G. Hornberger, Laredo, Tex., for Connerly.

      Anthony J. P. Farris, U. S. Atty., James R. Gough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

This appeal involves McConnell and Connerly. They were jointly indicted but had separate trials. We will first consider McConnell’s case.

McConnell, a wholesale distributor of marijuana and the employer of Byrd, Connerly and others to transport the marijuana, see Byrd v. United States, 5 Cir., 1973, 483 F.2d 1196; 5 Cir., 1974, 494 F.2d 1284, was apprehended as the result of a chain of events which began with the search of Byrd’s vehicle and his subsequent arrest. The chain included a credit card found in the Byrd vehicle which was issued to McConnell; the fact that McConnell paid Hertz for the lease to Byrd of the vehicle in which Byrd was apprehended; and later, some months after Byrd was sentenced, a statement from Byrd as to McConnell’s endeavors and the modus operandi thereof.

Relying on the holding of this court that the Byrd vehicle search was illegal, McConnell contends that his apprehension and conviction falls under the fruit of the poisonous tree doctrine. His problem, however, is in his lack of standing to contest the search of the Byrd vehicle.

The trial of McConnell was to the district court without a jury. The comprehensive findings and conclusions of the district court, include, inter alia, a finding that the Byrd vehicle was leased to Byrd in Houston on the credit of McConnell, arranged by McConnell with Hertz in Jackson, Mississippi through the use of an American Express card.

The search was not against McConnell; there was no defalcation as to him. Altizer v. United States, 5 Cir., 1973, 477 F.2d 846. In addition, there was no showing whatever that appellant had a reasonable expectation of privacy with respect to the Byrd vehicle. United States v. Mendoza, 5 Cir., 1973, 473 F.2d 692 at 695, 696; United States v. Bell, 5 Cir., 1972, 457 F.2d 1231 at 1239. See generally Alderman v. United States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Mancusi v. Deforte, 1968, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154.

McConnell urges conduct on the part of the district court and a probation officer as an impropriety amounting to error in the failure of the court to grant his motion to suppress. The facts were that at the sentencing of Byrd, the court learned of his employment by McConnell and that McConnell had employed counsel for Byrd. The court advised the probation officer to explain to Byrd that his lawyers might have a conflict of interest as between McConnell and Byrd. This advice was given, in turn, to Byrd and some four months later he made his statement implicating McConnell. We have carefully reviewed this occurrence and its various elements. We find no error.

As to Connerly’s case, no nexus whatever is shown between Connerly and the search of Byrd’s vehicle. Connerly was an employee of McConnell, just as was Byrd, and was paid by the trip to transport marijuana from the Mexican border to various American cities. The evidence was entirely sufficient to warrant the conviction by the court in a non jury trial on the count charging a conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C.A. § 841(a)(1). The case against Connerly as well as against McConnell was proved beyond peradventure by the testimony of two other McConnell employees, co-conspirators Price and Webb.

Affirmed as to McConnell and Connerly.


text:
    David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants (two cases). David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants, Robert G. Nelson et al., Intervenors-Appellants (two cases). David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., and National Association for the Advancement of Colored People, Defendants-Appellees, Guey Heung Lee et al., Plaintiffs in Intervention-Appellants. David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants.
    Nos. 71-1877, 71-1878, 71-2105, 71-2163, 71-2189 and 72-2980.
    United States Court of Appeals, Ninth Circuit.
    June 21, 1974.

      Thomas M. O’Connor, City A tty. (argued), George K. Krueger, Deputy City Atty. (argued), Vivian Hannawalt (argued), Quentin L. Kopp (argued), San Francisco, Cal., for defendants-appellants.
    Arthur Brunwasser (argued), San Francisco, Cal., for plaintiffs-appellees.
    J. Anthony Kline (argued), San Francisco, Cal., for amicus curiae.
    Before MERRILL, KOELSCH and BROWNING, Circuit Judges.
   OPINION

PER CURIAM:

This litigation was initiated by parents of black children attending public elementary schools in the San Francisco Unified School District. They seek desegregation of those schools. The schools of the District have never been subject to a statutorily imposed “dual school system” separating blacks from whites. The plaintiffs contend that acts of de jure segregation have been committed by the School Board with the result that the responsibility fell upon the Board to desegregate the school system. The district court ruled in favor of the plaintiffs upon this issue and called upon the parties to submit plans for accomplishing desegregation. Two plans were submitted, one by the plaintiffs and one by the defendants. Both plans provided for" the balancing not only of blacks and whites but of Chinese-Americans and other ethnic groups as well.

Before court hearings on the plans were scheduled to commence, parents of children of Chinese ancestry attending public elementary schools in the district sought leave to intervene. They additionally sought an order shortening time for service of the moving papers so that their application might be ruled upon in time for them to participate in those hearings. The district court refused to shorten time, and the hearings were held without their participation. Thereafter, the district court denied their application to intervene.

The court approved both plans and directed defendants forthwith to carry out desegregation of the elementary schools in the manner provided by one or the other of the two plans. Its findings and judgment are set forth in 339 F.Supp. 1315 (N.D.Cal.1971). Defendants elected to follow the plan which they themselves had submitted. They have been operating under that plan ever since.

I. De Jure Segregation

(Nos. 71-1877, 71-1878, 71-2163, and . 71-2189)

District-wide integration has been the goal of the School Board for some time, and the plan under which it is now operating had been designed by it, prior to commencement of the instant suit, as a long-range plan to be accomplished gradually over a period of years. The question before us is not the desirability of district-wide integration, but whether the constitutional rights of the litigants necessitate immediate, court-ordered desegregation.

More particularly, this appeal presents the question whether the district court applied correct standards in determining that acts of de jure segregation were committed by the defendants. Since this case does not involve a statutorily created dual school system, we delayed taking submission of the case until the filing of the opinion of the Supreme Court in Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). In Keyes, as here, the contention was that the “School Board alone, by use of various techniques such as the manipulation of student attendance zones, school site selection and a neighborhood school policy, created or maintained racially or ethnically (or both racially and ethnically) segregated schools throughout the school district, entitling petitioners to a decree directing desegregation of the entire school district.” 413 U.S. at 191, 93 S.Ct. at 2689. In discussing the standards for determining whether de jure acts of segregation had been committed by a school board, the Court states:

“We emphasize that the differentiating factor between de jure and so-called de facto segregation to which we referred in Swann [v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 17-18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)] is purpose or intent to segregate.”

413 U.S. at 208, 93 S.Ct. at 2697 (emphasis in original).

This court, in Soria v. Oxnard School District Board of Trustees, 488 F.2d 579 (9th Cir. 1973), has construed Keyes as requiring for any finding of unconstitutional segregation a “determination that the school authorities had intentionally discriminated against minority students by practicing a deliberate policy of racial segregation.” 488 F.2d at 585.

Keyes and Soria were filed after the decision by the district court in this case. Quite understandably, therefore, the district court made no finding as to whether the School Board possessed the requisite segregatory intent. On the contrary, the district court treated proof of such intent as unnecessary. “In the context of segregation,” it held, “[the term de jure] * * * means no more nor less than that the school authorities have exercised powers given them by law in a manner which creates or continues or increases substantial racial imbalance in the schools. It is this governmental action, regardless of the motivation for it, which violates the Fourteenth Amendment.” 339 F.Supp. at 1319. As Keyes and Soria have now made clear, the district court thereby applied an erroneous legal standard in determining that a constitutional violation had occurred.

Although the record contains evidence relevant to the question of the School Board’s intent, it is not at all clear that the evidence is sufficient to permit a fair resolution of this issue. Because the litigants, like the district court, did not focus upon the issue of intent, we cannot be confident that all of the relevant and reasonably available evidence is now before us. The case must be remanded to afford an opportunity to reexamine the record on the issue of intent. Upon remand the district court will permit the parties to offer such additional evidence as they may desire pertaining to that issue.

The school district has been operating under the court-ordered desegregation plan since September, 1971. As in So-ria, “we shall not at this time undo that result.” 488 F.2d at 588. Therefore, the injunction shall remain in effect until the final resolution of the litigation, unless the district court in its discretion modifies it.

Nos. 71-1877, 71-1878, 71-2163, and 71-2189 are vacated and remanded for further consideration in light of Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), and Soria v. Oxnard School District Board of Trustees, 488 F.2d 579 (9th Cir. 1973), and in accordance with the views here expressed.

II. Intervention

(No. 71-2105)

Parents of elementary school children of Chinese ancestry claim entitlement to intervene as a matter of right under Rule 24(a)(2), F.R.Civ.P. They oppose the compulsory reassignment of such students to schools outside the area in which they reside. Alleging, inter alia, that such reassignment will make it impossible for such children to attend community schools offering education in Chinese language, art, culture and history, they contend, on constitutional and equitable grounds, that they are not properly bound by the court’s decree, or that, if they are so bound, they are entitled to participate in the fashioning of that decree.

Rule 24(a)(2) permits timely intervention when the applicant shows: (1) an interest relating to the property or transaction which is the subject of the action; (2) that the disposition of the action may as a practical matter impair or impede his ability to protect that interest; and (3) that the interest is not adequately represented by existing parties.

Appellants claim a sufficient interest in the outcome of the action to satisfy the first requirement of the rule. In Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175, 180 (1969), the District of Columbia Court of Appeals, sitting in banc, concluded that the “concern [of parents seeking intervention in a desegregation suit] for their children’s welfare” was sufficient under the circumstances to satisfy that requirement. We adopted the general rationale of Smuck in Spangler v. Pasadena City Board of Education, 427 F.2d 1352, 1353 (9th Cir. 1970), but there we reached a different result because the third requirement of the rule was not satisfied. Moreover, other courts have recognized that, for purposes of Rule 24(a)(2), all students and parents, whatever their race, have an interest in a sound educational system and in the operation of that system in accordance with the law. That interest is surely no less significant where, as here, it is entangled with the constitutional claims of a racially defined class.

The second requirement of the rule, that the applicant be “so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest,” is similarly satisfied. It is true that here the denial of intervention may leave appellants the practical alternative of asserting in a subsequent lawsuit that the new policies adopted by the school district are unconstitutional. However, appellants additionally seek to influence the manner in which the school district exercises its admitted discretion in formulating and implementing such policies. The denial of intervention may eliminate appellants’ opportunity to challenge new policies which, although they may not be constitutionally required, are nevertheless constitutionally permissible. See Smuck, supra, 408 F.2d at 180-181. Moreover, the actual outcome in the court below — the approval of plans balancing the very class appellants claim to represent — demonstrates that their interest may indeed be affected.

The third requirement for intervention of right is that the applicant’s interest not be “adequately represented by existing parties.” The district court found that “[t]he vague and conclusory allegations of the complaint in intervention are insufficient to overcome the presumption that government officials are adequately representing the interests of all citizens.”

The factual situation before us bears a similarity to that in Trbovich v. United Mine Workers of America, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), in which the Supreme Court held that there was sufficient doubt about the adequacy of representation of a complaining union member by the Secretary of Labor in a suit to set aside an election of union officials to warrant the union member’s intervention of right. Here we cannot agree with the district court’s conclusion that the school district, which is charged with the representation of all parents within the district and which authored the very plan which appellants claim impairs their interest, adequately represents appellants. Nor do we agree with appellee’s contention that the other intervenors in the action, a group of racially mixed parents, adequately represent appellants’ distinct viewpoint.

The remaining question is whether appellants’ application was timely made within the meaning of Rule 24(a)(2). Here, where appellants filed their application eleven days after the proposed plans were filed, but prior to entry of the court’s ultimate decree, the district court ruled “that to allow intervention at this juncture would unduly delay and prejudice the rights of the original parties.” Despite some authority to the contrary, we ordinarily might well conclude, on the facts before us, that the district court acted within its discretion in denying the application as “untimely.” However, our disposition today of the related appeals — vacating and remanding the main case below for reconsideration while leaving the injunction in force — substantially reduces any prejudice to the rights of the original parties and thus undercuts the basis of the district court’s ruling.

On the peculiar circumstances of this case and in view of our disposition of the related appeals, No. 71-2105 is vacated and remanded with instructions to permit appellants to intervene in accordance with the views here expressed.

III. Attorneys’ Fees

(No. 72-2980)

The district court entered an order awarding appellees $24,637.50 in attorneys’ fees. Appellants took a separate appeal from this order. We vacated submission of this appeal to await the decision of the Supreme Court in Bradley v. School Board, 472 F.2d 318 (4th Cir. 1972), cert. granted 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973), vacated 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (May 15, 1974),-a case involving similar issues. Appellees present three theories in support of the award of fees, each of which assumes a successful plaintiff. Because of our view that the main case must be remanded for further fact-finding, it remains to be seen which party will ultimately prevail on the merits. As matters now stand, therefore, a decision on the attorneys’ fees issue would be premature. Accordingly, we vacate the order awarding attorneys’ fees and remand for further consideration by the district court when the litigation has been resolved on the merits.

It is so ordered.

      . See Note, Keyes v. School District No. 1: Unlocking the Northern Schoolhouse Doors, 9 Harv.Civ.Rights-Civ.Lib.L.Rev. 124, 149: “[I]t is now clear that a finding of de jure segregation has basically three prerequisites: (a) school board action (b) with a purpose to segregate (c) which in fact produces segregation in the system” (emphasis added).
      It was with reference to this requirement that Justice Powell disagreed with the majority in Keyes. He stated :
      “The net result of the Court’s language, however, is the apjjlication of an effect test to the actions of southern school districts and an intent test to those in other sections, at least until an initial de jure finding for those districts can be made. Rather than straining to perpetuate any such dual standard, we should hold forthrightly that significant segregated school conditions in any section of the country are a prima facie violation of constitutional rights.”
      413 U.S. at 232, 93 S.Ct. at 2709.
      Further:
      “I would hold, quite simply, that where segregated public schools exist within a school district to a substantial degree, there is a prima facie case that the duly constituted public authorities . . . are sufficiently responsible to warrant imposing upon them a nationally applicable burden to demonstrate they nevertheless are operating a genuinely integrated school system.”
      413 U.S. at 224, 93 S.Ct. at 2705.
      The Court in Keyes specifically reserved the issue of “whether a ‘neighborhood school policy’ of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting de jure segregation.” 413 U.S. at 212, 93 S.Ct. at 2699.
      We understand the reserved question to be whether it is sufficient to show intentional discriminatory action by someone other than the school board resulting in racially divided neighborhoods, to which the school board applies a “neutral” neighborhood school policy. Cf. Kelly v. Guinn, 456 F.2d 99, 106 n. 7 (9th Cir. 1972). Engrafting a neighborhood school policy onto such involuntary neighborhoods may be sufficient ratification of the illicit intent of others to preclude the necessity for showing a purpose by the school board itself to segregate. At this stage of the litigation, this issue is not presented.

      . The district court took pendent jurisdiction over plaintiffs’ claim that racial segregation also violates state law, specifically 5 Cal.Admin.Code §§ 14020-21. Plaintiffs did not seriously press the pendent claim in this court. Further, it is clear from the district court’s opinion that the remedy ordered was based upon the constitutional violation, rather than upon a violation of state law. Therefore, we do not decide whether it was a proper exercise of the district court’s discretion, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), to accept pendent jurisdiction over a state claim where the impact of the state law is as uncertain as it is here. See Jackson v. Pasadena School District, 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878 (1963); San Francisco Unified School District v. Johnson, 3 Cal.3d 937, 958, 92 Cal.Rptr. 309, 323, 479 P.2d 669, 682 (1971). Cf. Mayor v. Educational Equality League, 415 U.S. 605, -, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974).

      . Rule 24(a) (2) provides:
      “(a) Intervention of right.
      “Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

      . The Smuck court looked to the policies underlying the rule, observing as follows at 379-180:
      “The goal of ‘disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process’ may in certain circumstances be met by allowing parents whose only ‘interest’ is the education of their children to intervene. In determining whether such circumstances are present, the first requirement of Rule 24(a) (2), that of an ‘interest’ in the transaction, may be a less useful point of departure than the second and third requirements, that the applicant may be impeded in protecting his interest by the action and that his interest is not adequately represented by others.
      “This does not imply that the need for an ‘interest’ in the controversy should or can be read out of the rule. But the requirement should be viewed as a prerequisite rather than relied upon as a determinative criterion for intervention. If barriers are needed to limit extension of the right to intervene, the criteria of practical harm to the applicant and the adequacy of representation by others are better suited to the task.”

      . See United States v. Board of School Commissioners of Indianapolis, Indiana, 466 F.2d 573, 575 (7th Cir. 1972); Hatton v. County Board of Education of Maury County, Tennessee, 422 F.2d 457, 460-461 (6th Cir. 1970); Atkins v. State Board of Education of North Carolina, 418 F.2d 874, 876 (4th Cir. 1969); Moore v. Tangipahoa Parish School Board, 298 F.Supp. 288, 293 (E.D.La.1969).

      . The Court observed at 538-539, 92 S.Ct. at 636:
      “The statute [29 U.S.C. § 482(b)] plainly imposes on the Secretary the duty to serve two distinct interests, which are related, but not identical. First, the statute gives the individual union members certain rights against their union, and ‘the Secretary of Labor in effect becomes the union member’s lawyer’ for purposes of enforcing those rights. [Citation omitted.] And second, the Secretary has an obligation to protect the ‘vital public interest in assuring free and democratic union elections that transcends the narrower interest of the comjdaining union member.’ [Citation omitted.] Both functions are important, and they may not always dictate precisely the same approach to the conduct of the litigation. Even if the Secretary is performing his duties, broadly conceived, as well as can be expected, the union member may have a valid complaint about the performance of ‘his lawyer.’ Such a complaint, filed by the member who initiated the entire enforcement proceeding, should be regarded as sufficient to warrant relief in the form of intervention under Rule 24(a) (2).”
      The Court also observed at 538 n. 10, 92 S.Ct. at 636:
      “The requirement of the Rule [24(a)(2)] is satisfied if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal. See 3B J. Moore, Federal Practice n 24.09-1 [4] (1969).”

      . If the application was untimely, intervention must be denied. N. A. A. C. P. v. New York, 413 U.S. 345, 346, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973). Moreover, the question of “timeliness” is a matter for the discretion of the trial court and is to be determined from all the circumstances of the ease. Id. at 365-366; see also Tesseyman v. Fisher, 231 F.2d 583, 584 (9th Cir. 1955); Pellegrino v. Nesbit, 203 F.2d 463, 465-466 (9th Cir. 1953).

      . In Cascade Natural Gas Co. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967), the Supreme Court, without discussing timeliness, permitted Cascade, after entry of a consent judgment, to intervene of right in additional j)roeeedings involving the formulation of a divestiture decree. The Court noted that Rule 24(a) (2) “applies to ‘further proceedings’ in pending actions.” 386 U.S. at 135-136, 87 S.Ct. at 937. Similarly, in Hodgson v. United Mine Workers of America, 153 U.S.App.D.C. 407, 473 F.2d 118 (1972), the court, citing Cascade, observed at 129:
      “Timeliness presents no automatic barrier to intervention in postjudgment proceedings where substantial problems in formulating relief remain to be resolved.”
      Other courts, however, have refused to treat Cascade as a “carte blanche” for intervention, or accept it as applying except to an extraordinary fact situation. See, e. g., United States v. Blue Chip Stamp Co., 272 F.Supp. 432, 435-436 (C.D.Cal.1967), aff’d, Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580, 88 S.Ct. 693, 19 L.Ed.2d 781 (1968); Spangler v. Pasadena City Board of Education, 427 F.2d 1352, 1354 n. 3 (9th Cir. 1970), and cases cited therein.