author: SIMPSON, Circuit Judge: WISDOM, Circuit Judge, joined by TUTTLE, GOLDBERG and GODBOLD, .Circuit Judges,

text:
    Alan WILLINGHAM, Plaintiff-Appellant, v. MACON TELEGRAPH PUBLISHING COMPANY, Defendant-Appellee.
    No. 72-2078.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.

      Charles Marchman, Jr., Macon, Ga., Edward L. Baety, Field Atty., EEOC, Atlanta, Ga., for plaintiff-appellant.
    James M. Simons, Austin, Tex., Charles L. Reischel, EEOC, Washington, D. C., Wayne S. Hyatt, Atlanta, Ga., amicus curiae, for Roger D. Gravette.
    E. S. Sell, Jr., Macon, Ga., for defendant-appellee.
    John Bacheller, Jr., Robert W. Ash-more, Atlanta, Ga., amicus curiae, for Rollins, Inc.
    R. James George, Jr., Austin, Tex., amicus curiae, for Newspapers, Inc.
    Before BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK and RONEY, Circuit Judges.
   SIMPSON, Circuit Judge:

Alan Willingham, plaintiff-appellant, applied for employment with defendant-appellee Macon Telegraph Publishing Co., Macon, Georgia (Macon Telegraph) as a display or copy layout artist on July 28, 1970. Macon Telegraph refused to hire Willingham. The suit below alleged that the sole basis for refusal to hire was objection to the length of his hair. On July 30, 1970, he filed a complaint with the Equal Employment Opportunity Commission (E.E.O.C.), asserting discrimination by Macon in its hiring policy based on sex, and therefore in violation of Sec. 703(a), Civil Rights Act of 1964, Title 42, U.S.C., § 2000e-2(a).

The E.E.O.C. investigated the alleged discrimination and eventually advised Willingham that there was reasonable cause to believe that Macon Telegraph had violated the cited portion of the Civil Rights Act of 1964, and that he was entitled to file suit. On December 17, 1971, Willingham filed suit, alleging in ter alia that Macon Telegraph’s hiring policy unlawfully discriminated on the basis of sex. On April 17, 1972, the district court granted summary judgment in favor of defendant Macon Telegraph, finding no unlawful discrimination. Willingham v. Macon Telegraph Publishing Co., M.D.Ga.1972, 352 F.Supp. 1018. Upon Willingham’s appeal from the district court decision a panel of this circuit reversed, finding the presence of a prima facie case of sexual discrimination and directing remand for an evidentiary hearing Willingham v. Macon Telegraph Publishing Co., 5 Cir. 1973, 482 F.2d 535 (Simpson, Circuit Judge, dissenting). Upon en banc consideration we vacate the remand order of the original panel and affirm the district court.

THE FACTS

The factual background of this ease is set forth in the district court opinion and in the majority and dissenting opinion of the original panel. There is no substantial dispute between the parties as to the facts the more important of which we repeat here for convenience. Willing-ham was 22 years of age when he applied for work with Macon Telegraph in late July, 1970. Shortly before, during the Fourth of July holidays, an “International Pop Festival” was held at Byron, Georgia, a village about 15 miles from Macon. This event, attended by hundreds of thousands of young people, is described in footnote 3 to the dissenting opinion, 482 F.2d at 539:

The record shows that Macon community disapproval of long-haired males had been recently exacerbated by an “International Pop Festival” on July 3, 4, 5, 1970, at Byron, Georgia, a small community 15 miles from Macon. The crowds attracted to Byron were variously estimated at between 400,000 and 500,000 people. Bearded and long-haired youths and scantily dressed young women flooded the countryside. Use of drugs and marijuana was open. Complete nudity by both sexes, although not common was frequently observed. Of course the managing officials of the Macon Telegraph Publishing Company were peculiarly aware of community indignation over excesses during the Byron Pop Festival because of the wide publicity in its own daily newspaper. The appellee was entitled to consider that the business community of Macon, including its own advertisers, was particularly sour on youthful long-haired males at the time of Willingham’s application of July 28, 1970. It was a fair inference on the part of company officials that advertisers would share an attitude not significantly different from that of the community in general.

In short, Macon Telegraph’s management believed that the entire business community it served-and depended upon for business success-associated long hair on men with the counter-culture types who gained extensive unfavorable national and local exposure at the time of the festival. Therefore the newspaper’s employee grooming code, which required employees (male and female) who came into contact with the public to be neatly dressed and groomed in accordance with the standards customarily accepted in the business community, was interpreted to exclude the employing of men (but not women) with long hair. Willingham’s longer than acceptable shoulder length hair was thus the grooming code violation upon which Macon Telegraph based its denial of employment.

Willingham’s complaint to the E.E. O.C. and his federal suit were both grounded upon Sec. 703 of the Civil Rights Act of 1964, Title 42, U.S.C. § 2000e-2, which provides, in pertinent part, that:

(a) It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s sex . . .; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s sex

Willingham’s argument is that Macon Telegraph discriminates amongst employees based upon their sex, in that female employees can wear their hair any length they choose, while males must limit theirs to the length deemed acceptable by Macon Telegraph. He asserts therefore that he was denied employment because of his sex: were he a girl with identical length hair and comparable job qualifications, he (she) would have been employed. A majority of the original panel which heard the case agreed, and remanded the cause to the district court for a finding of whether or not the discrimination might not be lawful under the “bona fide occupational qualification” (B.F.O.Q.) statutory exception to Sec. 703. Since we agree with the district court that Macon Telegraph’s dress and grooming policy does not unlawfully discriminate on the basis of sex, the applicability of the B.F.O.Q. exception will not be considered in this opinion.

THE NATURE OF SEXUAL DISCRIMINATION

The unlawfulness vel non of employer practices with respect to the hiring and treatment of employees in the private sector, as contemplated by Sec. 703 and applied to the facts of this case, can be determined by way of a three step analysis: (1) has there been some form of discrimination, i. e., different treatment of similarly situated individuals; (2) was the discrimination based on sex; and (3) if there has been sexual discrimination, is it within the purview of the bona fide occupational qualification (BFOQ) exception and thus lawful? We conclude that the undisputed discrimination practiced by Macon Telegraph is based not upon sex, but rather upon grooming standards, and thus outside the proscription of Sec. 703. This determination pretermits any discussion of whether, if sexual discrimination were involved, it would be within the BFOQ exception.

Although our judicial inquiry necessarily focuses upon the proper statutory construction to be accorded Sec. 703, it is helpful first to define narrowly the precise issue to be considered. For two reasons, we have no question here of whether or not due process or equal protection standards need be applied. Firstly, there is no state action present giving rise to a constitutional question, and secondly, no claim of deprivation of a constitutional right is advanced. Cf. Karr v. Schmidt, 5 Cir. 1972, 460 F.2d 609 (en banc) with Lansdale v. Tyler Junior College, 5 Cir. 1972, 470 F.2d 659 (en banc) (grooming regulations within the public school systems and institutions of higher learning). Similarly, we are not concerned with discrimination based upon sex alone. That situation obtains when an employer refuses to hire, promote, or raise the wages of an individual solely because of sex, as, for instance, if Macon Telegraph had refused to hire any women for the job of copy layout artist because of their sex.

Willingham relies on a more subtle form of discrimination, one which courts and commentators have often characterized as “sex plus”. In general, this involves the classification of employees on the basis of sex plus one other ostensibly neutral characteristic. The practical effect of interpreting Sec. 703 to include this type of discrimination is to impose an equal protection gloss upon the statute, i. e. similarly situated individuals of either sex cannot be discriminated against vis á vis members of their own sex unless the same distinction is made with respect to those of the opposite sex. Such an interpretation may be necessary in order to counter some rather imaginative efforts by employers to circumvent Sec. 703.

Inclusion of “sex plus” discrimination within the proscription of Sec. 703 has legitimate legislative and judicial underpinning. An amendment which would have added the word “solely” to the bill, modifying “sex”, was defeated on the floor in the House of Representatives. 110 Cong.Rec. 2728 (1964). Presumably, Congress foresaw the debilitating effect such a limitation might have upon the sex discrimination amendment. Further, the Supreme Court, in Phillips v. Martin Marietta Corp., 1971, 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613, found expressly that “sex plus” discrimination violates the Civil Rights Act. The employer in Phillips refused to accept job applications from women with pre-school age children, but had no such policy with respect to male applicants. The defendant argued that it was not discriminating between men and women, but only amongst women, and then only with respect to a neutral fact — pre-school age children. In a short per curiam decision, the Supreme Court held that if the legislative purpose of giving persons of like qualifications equal employment opportunity irrespective of sex were to be effected, employers could not have one hiring policy for men and another for women. Thus “sex plus” discrimination against being a woman plus having preschool age children, was under the facts of that case just as unlawful as would have been discrimination based solely upon sex.

In this analytical context, then, the single issue in this case is precisely drawn: Does a particular grooming regulation applicable to men only constitute “sex plus” discrimination within the meaning of Sec. 703, as construed by the Supreme Court? Willingham and numerous amici curiae have advanced several arguments supporting an affirmative answer to the question. We proceed to consider these arguments.

The primary premise of Willingham’s position is that “sex plus” must be read to intend to include “sex plus any sexual stereotype” and thus, since short hair is stereotypically male, requiring it of all male applicants violates Sec. 703. While the Supreme Court did not explicate the breadth of its rationale in Phillips, it seems likely that Mr. Justice Marshall at least might agree with Willingham. In his special concurrence he noted that any hiring distinction based upon stereotyped characterizations of the sexes violates the Act, and went on to say that such discrimination could never be a BFOQ exception, an issue expressly left open in the majority’s per curiam opinion. Phillips v. Martin Marietta Corp., supra, 400 U.S. at 545, 91 S.Ct. at 498, 27 L.Ed.2d at 616.

Willingham finds further comfort in Sprogis v. United Air Lines, Inc., 7 Cir. 1971, 444 F.2d 1194. Plaintiff there was a female stewardess who challenged an airline rule that stewardesses were not allowed to marry, but with no such provision for male stewards or other employees. The Sprogis court found the rule to be an unlawful form of “sex plus” discrimination, relying in part on Phillips. In reference to “sex plus” the court noted that “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Sprogis v. United Air Lines, Inc., supra, 444 F.2d at 1198 (emphasis supplied). Treating the emphasized language in its broadest sense, it is possible that the court felt that all sexual stereotypes violate Sec. 703. Several district courts apparently agree with this construction, at least insofar as personal dress and appearance codes are concerned. See Aros v. McDonnell Douglas Corp., C.D.Cal.1972, 348 F.Supp. 661 (dress and grooming code constitutes sexual discrimination when applied differently to males and females); Donohue v. Shoe Corp. of America, C.D.Cal.1972, 337 F.Supp. 1357 (rule requiring short hair on men, but not on women, is prima facie violation of Sec. 703); Roberts v. General Mills, Inc., N.D.Ohio 1971, 337 F.Supp. 1055 (rule allowing female employees to wear hairnets, but requiring men to wear hats— and therefore keep their hair short — violates Sec. 703).

Finally, the E.E.O.C. by administrative decision, regulation, and on amicus brief here, fully supports Willingham’s position. In its administrative decisions, the Commission has uniformly held that dress and grooming codes that distinguish between sexes are within Sec. 703, and can only be justified if proven to be a BFOQ. See Brief for Appellant (en banc) at 17-18. The Commission’s regulations go a step further, assuming (we infer) that such codes are sexually discriminatory and asserting that “[t]he refusal to hire an individual based on stereotyped (sic) characterizations of the sexes” does not warrant the application of the BFOQ exception. Title 29 C.F.R. § 1604.2(a)(1)(h) (1973). We are mindful also that “[t]he administrative interpretation of the Act by the enforcing agency is entitled to great deference,” Griggs v. Duke Power Co., 1971, 401 U.S. 424, 434-435, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158, 165.

SEXUAL STEREOTYPES AND LEGISLATIVE INTENT

The beginning (and often the ending) point of statutory interpretation is an exploration of the legislative history of the Act in question. We must decide, if we can there find any basis for decision, whether Congress intended to include all sexual distinctions in its prohibition of discrimination (based solely on sex or on “sex plus”), or whether a line can legitimately be drawn beyond which employer conduct is no longer within reach of the statute.

We discover, as have other courts earlier considering the problem before us, that the meager legislative history regarding the addition of “sex” in Sec. 703(a) provides slim guidance for divining Congressional intent. The amendment adding “sex” was passed one day before the House of Representatives approved Title VII of the Civil Rights Act and nothing of import emerged from the limited floor discussion. Diaz v. Pan American World Airways, 5 Cir. 1971, 442 F.2d 385, 386. Ironically, the amendment was introduced by Representative Howard Smith of Virginia, who had opposed the Civil Rights Act, and was accused by some of wishing to sabotage its passage by his proposal of the “sex” amendment. Note, Employer Dress and Appearance Codes and Title VII of the Civil Rights Act of 1964, 46 So.Cal.L. Rev. 965, 968; Note, Developments in the Law-Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1167 (1971). And while it is argued that a lack of change in this section in the 1972 amendments to the Act evidences Congressional agreement with the position of the E.E. O.C., it may be argued with equal force that the law was insufficiently developed at the time the amendments were considered to support any change. We find the legislative history inconclusive at best and draw but one conclusion, and that by way of negative inference. Without more extensive consideration, Congress in all probability did not intend for its proscription of sexual discrimination to have significant and sweeping implications. We should not therefore extend the coverage of the Act to situations of questionable application without some stronger Congressional mandate.

We perceive the intent of Congress to have been the guarantee of equal job opportunity for males and females. Providing such opportunity is where the emphasis rightly lies. This is to say that the Act should reach any device or policy of an employer which serves to deny acquisition and retention of a job or promotion in a job to an individual because the individual is either male or female. The language of the Supreme Court in Griggs regarding racial discrimination applies with equal (but not greater) force to sexual discrimination: “The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” Griggs v. Duke Power Co., supra, 401 U.S. at 429-430, 91 S.Ct. at 853, 28 L.Ed.2d at 163. We expressed this thought in Diaz: “[I]t is reasonable to assume, from a reading of the statute itself, that one of Congress’ main goals was to provide equal access to the job market for both men and women.” Diaz v. Pan American World Airways, supra, 442 F.2d at 386. Indeed, the Supreme Court made the same point in Phillips by saying that “Section 703(a) of the Civil Rights Act of 1964 requires that persons of like qualifications be given employment opportunities irrespective of their sex.” Phillips v. Martin Marietta Corp., supra, 400 U.S. at 544, 91 S.Ct. at 497-498, 27 L.Ed.2d at 615.

Juxtaposing our view of the Congressional purpose with the statutory interpretations advanced by the parties to this action elucidates our reasons for adopting the more narrow construction. Equal employment opportunity may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics, such as race and national origin. Similarly, an employer cannot have one hiring policy for men and another for women if the distinction is based on some fundamental right. But a hiring policy that distinguishes on some other ground, such as grooming codes or length of hair, is related more closely to the employer’s choice of how to run his business than to equality of employment opportunity. In Phillips, supra, the Supreme Court condemned a hiring distinction based on having pre-school age children, an existing condition not subject to change. In Sprogis v. United Air Lines, supra, the Seventh Circuit reached a similar result with respect to marital status. We have no difficulty with the result reached in those cases; but nevertheless perceive that a line must be drawn between distinctions grounded on such fundamental rights as the right to have children or to marry and those interfering with the manner in which an employer exercises his judgment as to the way to operate a business. Hair length is not immutable and in the situation of employer vis á vis employee enjoys no constitutional protection. If the employee objects to the grooming code he has the right to reject it by looking elsewhere for employment, or alternatively he may choose to subordinate his preference by accepting the code along with the job.

We agree with the District of Columbia Circuit’s treatment of this problem. Dodge v. Giant Food, Inc., D.C.Cir. 1973, 488 F.2d 1333, following that court’s earlier decision in Fagan v. National Cash Register Co., 1973, 157 U.S.App.D.C. 15, 481 F.2d 1115. In Fagan, the plaintiff employee was discharged for refusal to comply with a company grooming rule because of his long hair, and sued under Sec. 703(a). Dismissal of his suit was affirmed, on the ground that hair length is not constitutionally or statutorily protected, and hence its regulation as to men but not women designed to further the employer’s legitimate business interest, is not sexual discrimination. Fagan v. National Cash Register Co., supra, 481 F.2d at 1125. Enlarging upon this principle, the court held in Dodge that hair length regulations “are classifications by sex . . . which do not represent any attempt by the employer to prevent the employment of a particular sex, and which do not pose distinct employment disadvantages for one sex. Neither sex is elevated by these regulations to an appreciably higher occupational level than the other. We conclude that Title VII never was intended to encompass sexual classifications having only an insignificant effect on employment opportunities.” Dodge v. Giant Food, Inc., supra, 488 F.2d at 1337.

We adopt the view, therefore, that distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of Sec. 703(a). Congress sought only to give all persons equal access to the job market, not to limit an employer’s right to exercise his informed judgment as to how best to run his shop.

We are in accord also with the alternative ground mentioned in both the District of Columbia Circuit cases and relied upon by Judge Bootle in his memorandum decision in Willingham: “From all that appears, equal job opportunities are available to both sexes. It does not appear that defendant fails to impose grooming standards for female employees; thus in this respect each sex is treated equally.” Willingham v. Macon Telegraph Publishing Co., supra, 352 F.Supp. at 1020. See also Dodge v. Giant Food Co., supra, 488 F.2d at 1336, Fagan v. National Cash Register Co., supra, 481 F.2d at 1124 n. 20; Boyce v. Safeway Stores, D.D.C.1972, 351 F.Supp. 402, 404. This frame of analysis removes Willingham’s complaint completely from the Sec. 703(a) “sex plus” category, because both sexes are being screened with respect to a neutral fact, i. e., grooming in accordance with generally accepted community standards of dress and appearance. Since Macon Telegraph applies this criterion to male and female applicants (see the original record at 17, Response of Defendant to Plaintiff’s Request for Admissions), the equal protection gloss has no applicability.

We are as persuaded by the arguments of Macon Telegraph and its amici supporters as we are unpersuaded by those of Willingham. Support for the latter lies in the concurring opinion of Mr. Justice Marshall in Phillips, supra. With deference, his views appear to be his alone. The fact that he separately concurred without being joined by any other justice is a fair indication that he speaks there only for himself. And while Griggs teaches that agency interpretation is due “great deference”, we, as did the District of Columbia Circuit in Fa-gan, note the equally significant qualifying explanatory statement: “Since the Act and its legislative history support the Commission’s construction, this affords good reason to treat the guidelines as expressing the will of Congress.” (Emphasis added). Fagan v. National Cash Register Co., supra, 481 F.2d at 1125, quoting Griggs v. Duke Power Co., supra, 401 U.S. at 434, 91 S.Ct. at 855, 28 L.Ed.2d at 165-166. The language of the statute as to the issue before us is anything but clear. Indeed, judicial construction was required simply to reach the abstract principle of “sex plus”; and the legislative history supports, if anything, the wisdom of narrow construction. Finally, we are in accord with the result reached in Sprogis v. United Air Lines, supra, and with much of its dicta, particularly that regarding stereotypes, but only insofar as it is intended to embrace distinctions touching immutable characteristics or protected rights.

CONCLUSION

Nothing that we say should be construed as disparagement of what many feel to be a highly laudable goal— maximizing individual freedom by eliminating sexual stereotypes. We hold simply that such an objective may not be read into the Civil Rights Act of 1964 without further Congressional action. Private employers are prohibited from using different hiring policies for men and women only when the distinctions used relate to immutable characteristics or legally protected rights. While of course not impervious to judicial scrutiny, even those distinctions do not violate Sec. 703(a) if they are applied to both sexes.

Affirmed.

WISDOM, Circuit Judge, joined by TUTTLE, GOLDBERG and GODBOLD, .Circuit Judges,

dissenting.

I dissent for the reasons stated in the original opinion of the panel. Willingham v. Macon Telegraph Publishing Co., 5 Cir. 1973, 482 F.2d 535.

      . There was evidence in the record that Will-ingham had made other applications for employment to Macon Telegraph, not all for the position of copy layout artist, but all of which were made prior to the application forming the basis for this lawsuit. For a more complete discussion see Willingham v. Macon Telegraph Pub. Co., 5 Cir. 1973, 482 F.2d 535, 539 n. 2, dissenting opinion of Simpson, Circuit Judge.

      . Congress provided that sexual discrimination would not be unlawful in a limited number of circumstances:
      Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, on the basis of his sex . in those certain instances where sex, . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, . . Title VII Civil Rights Act of 1964 Sec. 703(e)(1), Title 42 U.S.C. § 2000e-2(e)(l).

      . There can be little doubt, and Macon Telegraph does not here dispute, that distinguishing between males with short hair and those with long hair is “discrimination” in some form as that term is used in Sec. 703. There is persuasive legislative evidence that the word “discriminate” is to be construed broadly under the Act. 110 Cong.Rec. 7213 (1964).

      . See, e. g„ Note, Employer Dress and Appearance Codes and Title VII of the Civil Rights Act of 1964, 46 So.Cal.L.Rev. 965, 989-90 (1973); Note, Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L. Rev. 1109, 1171-72 (1971) (and cases cited therein).


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    Hammy MARTIN, Plaintiff-Appellant-Appellee, v. M/V WAR ADMIRAL in rem, et al., Defendants. DEEP WATER OPERATORS, INC., et al., 1 Defendants 1 Third-Party Plaintiffs-Appellees-Appellants, v. BAYOU VISTA MACHINE WORKS, INC., et al., Third-Party Defendants-Appellees, READING & BATES OFFSHORE DRILLING CO., Third-Party Defendant-Appellee-Appellant, Employers Liability Assurance Corp., Intervener-Appellee.
    No. 74-1690.
    United States Court of Appeals, Fifth Circuit.
    Feb. 10, 1975.

      C. Kenneth Deshotel, William A. Brinkhaus, Opelousas, La., for plaintiff-appellant-appellee.
    James E. Diaz, Lafayette, La., for Signal Oil.
    W. Gerald Gaudet, Lafayette, La., for Deep Water Operators.
    W. Eugene Davis, J. Louis Gibbens, New Iberia, La., for Reading & Bates Offshore Drilling.
    Wood Brown, III, Máchale A. Miller, New Orleans, La., for Bayou Vista & Employers Liability Corp.
    Joseph Wilson, Morgan City, La., for appellees.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   DYER, Circuit Judge:

Martin, a roughneck at an offshore drilling rig in the Gulf of Mexico, sustained injuries while returning to port from his worksite aboard the crewboat WAR ADMIRAL. He sued, and following a bench trial, was awarded damages based on the court’s finding that the negligence of Deep Water Operators, Inc. [Deep Water], the operator of the WAR ADMIRAL, had been a proximate cause of the accident. The judgment was reduced by 35% due to Martin’s contributory negligence, with the lion’s share of the net award going to Employers Liability Assurance Corporation, Ltd. [Employers], the workmen’s compensation insurer of Martin’s employer, as indemnification for benefits advanced to Martin.

The main issues on appeal are Martin’s claims that his judgment was erroneously small because of the court’s refusal to consider evidence of psychological disability in awarding damages, and that, as his action created the fund from which Employers recouped its compensation payments, the insurer should be required to share the cost of Martin’s attorney’s fees. Deep Water in turn appeals from the finding of its negligence underlying the judgment. We affirm the district court in all respects.

At approximately 2:30 P.M. on January 9, 1969, Martin boarded the crewboat WAR ADMIRAL to begin the four and one-half hour journey back to port from the offshore rig tender on which he worked: About halfway, he felt the urgent need to use the ship’s “head” located in the rear of the passenger cabin. The passageway to the rear was partially obstructed by luggage brought on board by other passengers, and as Martin was stepping over a duffel bag in the aisle, he was knocked off balance by the force of a wave striking the ship and fell backwards striking his hip on a footlocker. Although he was able to continue to the head and return to his seat without apparent difficulty, the injury had become so painful by the time the vessel docked that Martin had to be assisted to his car and driven to a local medical clinic by a co-worker.

At the clinic, Martin was treated by his personal physician, Dr. Deshotels, who initially prescribed conservative care to minimize swelling and pain. Dr. Deshotels later requested the consultation of orthopedist Dr. Bordelon, who performed surgery on August 12, 1969, to remove an inflamed bursal sac from Martin’s hip and to explore his knee for a possible popliteral cyst, which was not found. After a number of follow-up -visits, Dr. Bordelon discharged Martin on March 16, 1970, stating in his discharge report that:

This patient has apparently made a recovery from the injury which was previously noted. At the present time I find no evidence of physical impairment from an objective orthopaedic standpoint which would prevent the performance of normal activity.

This medical conclusion was supported by that of Dr. Saer, who examined Martin on March 26, 1970, and found that “[o]n the basis of his physical status there was nothing wrong which would prevent him doing normal activities if he wished to do so.”

Martin, however, contended that the accident had left him totally and permanently disabled. To support his claim he introduced the depositions of two psychiatrists, Dr. Cloyd and Dr. Blackburn, who testified in substance that, because of Martin’s psychological makeup, he continued to experience severe pain as a result of his injuries even though it might not be justified by his physical ailments. While both admitted that their conclusions were based on what Martin had related to them about his condition, coupled with their observation of his demeanor, they also stated their opinion that he was not consciously malingering.

The trial court awarded damages for lost wages and medical expenses up to the date of Dr. Bordelon’s discharge report of March 16, 1970, plus an allowance for pain and suffering, but denied any recovery for future disability. On this appeal, Martin argues, that in light of what he terms the “uncontradicted” psychiatric evidence of disability, this denial was erroneous. Seizing on a statement in the court’s opinion that it could not “support a reward for disability based purely on plaintiff’s past and present psychological problems,” he also suggests that the reason for the court’s refusal to award disability damages was its erroneous legal view that only pain with a demonstrable organic basis is compensable. See, e.g., Hayes v. Cele-brezze, 5 Cir. 1963, 311 F.2d 648, 654.

We cannot agree. Taken as a whole, the opinion makes it clear that the reason disability damages were denied was the court’s factual finding that Martin’s afflictions attributable to the accident, from either physical or psychological sources, were not disabling. Indeed, in the opening sentences of its consideration of the damage issue the district court stated:

In his complaint the plaintiff claims he has been totally and permanently disabled as a result of this fall in January of 1969. In determining the award of damages in this case, the Court has viewed with careful scrutiny all pertinent medical evidence. We are unable to conclude the plaintiff is presently disabled either totally or permanently.

Nor can we agree that the court’s conclusion is without substantial support in the record. In arguing that his psychological disability had been established by uncontradicted psychiatric testimony, Martin overlooks the fact that the key consideration is not the cause of pain, but its effect. To be disabling, it must at a minimum impair the plaintiff’s ability to engage in normal activity. See Gaultney v. Weinberger, 5 Cir. 1974, 505 F.2d 943. Here, Drs. Bordelon and Saer specifically testified that Martin was able to engage in normal physical activity. Moreover, as specifically noted by the district court, these findings were based on clinical examinations of Martin’s injuries, while the contrary opinions of Drs. Cloyd and Blackburn were rendered primarily from Martin’s subjective rendition of his complaints. In sum, there is substantial evidence to support the district court’s conclusion that Martin was not disabled, and it must be affirmed. McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20.

Martin’s second contention is that he should be awarded attorney’s fees out of the compensation payments recouped by Employers from his judgment. Cit-ing the insurer’s active opposition to any recovery, he relies on Chouest v. A & P Boat Rentals, Inc., 5 Cir. 1973, 472 F.2d 1026, cert. denied, 412 U.S. 949, 93 S.Ct. 3012, 37 L.Ed.2d 1002, as establishing a legal basis for the award of such fees. We decline to reach this issue because this claim for relief was not presented to the district court and will not be considered for the first time on appeal. Excavators and Erectors, Inc. v. Bullard Engineers, Inc., 5 Cir. 1973, 489 F.2d 318, 320; Kottemann v. Goodway, Inc., 5 Cir. 1971, 439 F.2d 766, 767.

Finally, we need not be detained by Deep Water’s argument that the district court was clearly erroneous in finding it liable for Martin’s injuries. The skipper of the WAR ADMIRAL himself testified that it was the duty of the crew to tell passengers to remove their luggage from the aisles; there is also adequate support in the record for the court’s finding that failure to observe this duty was a proximate cause of the accident.

Affirmed.

      . Martin also objects to the court’s decision to limit recovery of medical expenses to those incurred prior to March 16, 1970. In light of Dr. Bordelon’s discharge report of that date, which declared Martin to be medically recovered from his injuries, this conclusion as well cannot be deemed clearly erroneous. McAllister, supra.

      . Because we affirm the district court, we need not discuss any of the protective appeals filed herein.


author: TRASK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Leroy J. BUSSEY, Defendant-Appellant.
    No. 74-2476.
    United States Court of Appeals, Ninth Circuit.
    Nov. 26, 1974.

      Levi J. Smith, Portland, Or., for defendant-appellant.
    Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellee.
    Before BROWNING and TRASK, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, Senior United States District Judge, District of Montana, sitting by designation.

   OPINION

TRASK, Circuit Judge:

Leroy Bussey appeals his conviction at a trial to the court for attempted bank robbery, 18 U.S.C. § 2113(a), and for carrying a firearm during an attempted bank robbery, 18 U.S.C. § 924(c) (Supp. 1974). His plan was a rather elaborate one to force the bank manager to accompany him and his confederates from his home to the bank where the manager would open the vault door for them. The plan progressed with the aid of pistols and a shotgun to the point where the manager explained that the vault door had a time lock which would not permit anyone to open it until a much later designated time. They were convinced and left the house. A woman who was a participant told the whole story to the FBI and gave written permission for a search of the motel room where the group was staying. A search was made and incriminating evidence was obtained.

At a hearing the court denied suppression upon the ground that a valid consent had been given. The court was correct as to the common areas, United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 225 (1974), but in error as to the appellant’s personal luggage from which much of the evidence was taken.

The error was harmless in view of the overwhelming case against appellant which the Government produced. For instance, (1) the wife of the bank manager identified appellant at trial; (2) Bussey’s woman companion testified in detail about his participation in the planning and execution of the attempted robbery; (3) she also disclosed how certain guns stolen from the bank manager’s house were disposed of in a lake; they were recovered and identified at trial; and (4) another independent witness, Nick Duarte, testified to an admission of the attempted robbery by appellant. The trial court did not rely upon the suppressed evidence in its findings of fact and conclusions of law which supported the judgment. The admission into evidence of the items which should have been suppressed was harmless error. Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1577, 36 L.Ed.2d 251 (1973); Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Appellant next contends that his acts did not constitute an attempted bank robbery. His argument based upon his reading of the statute is frivolous. Next, he argues that his acts did not progress to the point of the commission of the attempt. In Giles v. United States, 157 F.2d 588 (9th Cir.), cert denied, 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 (1946), we approved a jury instruction defining attempt as “an act tending toward the accomplishment, and done in part execution of the design to commit a crime, exceeding an intent but falling short of an execution of it.” 157 F.2d at 590. In the present case the activities of the appellant clearly meet this test. See Lemke v. United States, 211 F.2d 73, 75 (9th Cir.), cert. denied, 347 U.S. 1013, 74 S.Ct. 866, 98 L.Ed. 1136 (1954).

Finally, appellant relies upon abandonment. However it is not sufficient as a defense to proceed well into the execution and then turn away because the plans are found to have been frustrated. A voluntary abandonment of an attempt which has proceeded well beyond preparation as here, will not bar a conviction for the attempt. Boyles v. State, 46 Wis. 2d 473, 175 N.W.2d 277 (1970); see W. LaFave & A. Scott, Handbook on Criminal Law 448 (1972). Appellant’s activities clearly progressed too far to be saved by what he termed an abandonment, but which more clearly appears to have been an involuntary foiling of his efforts. Finding no reversible error,

The judgment is affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel CHIARITO, Defendant-Appellant.
    No. 74-2951
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 6, 1975.
    Rehearing Denied March 6, 1975.
    Ronald I. Strauss, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Donald L. Ferguson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Appellant was convicted of importing cocaine in violation of 21 U.S.C. 952(a) and of possessing cocaine for distribution in violation of 21 U.S.C. 841(a)(1). He received concurrent four year sentences with a three year special parole term on each count. We find no merit in the appellant’s contention that the district court erred in failing to suppress as evidence cocaine obtained as the result of an alleged illegal search and seizure. We affirm.

On April 8, 1974 the appellant, enroute from Colombia, South America to Chicago, entered the United States Customs inspection area at the Miami International Airport. After successfully passing through the baggage checkpoint, but before he exited the Customs inspection area, the appellant was stopped by a customs patrol officer escorted to an inspection room and frisked. The patrol officer found a small amount of cocaine wrapped in a dollar bill in the appellant’s vest pocket. Subsequent x-rays of appellant’s personal effects revealed more cocaine hidden in the heels of his shoes.

The searches conducted by customs inspectors and customs patrol officers are, of course, limited by the Fourth Amendment’s prohibition against unreasonable searches and seizures. However, in the context of searches conducted pursuant to the customs and immigration laws, the strictures of the Fourth Amendment are ameliorated by considerations attending the regulation of movement across national borders. United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972). Stated differently, customs inspectors may predicate searches on less than the “probable cause” required in different circumstances: “Border searches are governed by the test of reasonable suspicion, rather than that of probable cause.” United States v. Mag-gard, 451 F.2d 502, 504 (5th Cir. 1971). The question on appeal is, then, whether the activities of the appellant provided the patrol officer with a reasonable basis for conducting the disputed search. In arguing that the officer had no reasonable basis to conduct a search the appellant places great weight on the fact that he had successfully negotiated the baggage checkpoint. As earlier indicated, he had not departed from the customs inspection area of the international airport. The appellant is apparently contending that his successful passage through the baggage line tolled any pri- or existing suspicion of the customs patrol officer and that any later search must be based on some additional suspicious behavior in order to be reasonable. The appellant’s position is legally untenable and is based on a conception of the customs process unsupported by facts in the record.

The customs inspection process in question involves both customs patrol officers and customs inspectors. The inspector is stationed so that he may check the luggage of incoming passengers while the patrol officer is part of a plainclothes roving inspection team. The patrol officers mingle with deplaning passengers both before and after they pass through the inspector’s checkpoint. The inspector may, in the event his suspicion is aroused, signal a patrol officer to conduct a further search subsequent to the luggage check or a patrol officer may of his own volition conduct an additional search. The record clearly shows that the baggage check is only one aspect of the customs inspection process. The inspector testified that, “ . the inspector in the booth cannot see the passenger completely. All he can see is from the waist up, and anything that’s in front of you, with the baggage in front of you, you can’t exactly see the complete posture of the man or woman in front of you. You have to depend on somebody else to do that for you. If we see it, we refer it.” In any event a suspect is not immune from further examination by customs agents by virtue of having passed an initial customs checkpoint. United States v. Maggard, 451 F.2d 502 (5th Cir. 1971). The pertinent legal issue is always whether the inspectors or the officers have a reasonable basis on which to conduct a search and this question is unaffected by the progress of the passenger through the customs process.

Customs Patrol Officer Payette, a man with more than three years of customs experience, indicated that the basis for his search consisted of the nervous appearance and actions of the appellant as well as the bulky nature of appellant’s vest. Payette also testified that the origin and ultimate destination of appellant’s flight increased his suspicion. The officer also stated that at the time he took the appellant into custody he suspected the appellant’s cameras might be subject to duty. We believe that the actions of the customs patrol officer were reasonable under the facts and in the circumstances revealed by the record. See, e. g., United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972); United States v. Maggard, 451 F.2d 502 (5th Cir. 1971).

Affirmed.

      . 19 U.S.C. § 482 is the statute relevant to this case.

      . United States v. Maggard, 451 F.2d 502 (5th Cir. 1971), cited for this proposition by the appellant is inapposite. In Maggard the patrol agents did not have a reasonable suspicion on which to base a search until they noticed the rear of the vehicle was riding low as the driver moved away from their check point. In the instant case the customs patrol officer could have reasonably searched the appellant before he passed through the luggage line. He needed no additional suspicious behavior in order to form a sufficient basis for a search.


text:
    Marvin MILLER and Covina Publishing, Inc., a corporation doing business as Collector’s Publication, Appellants, v. UNITED STATES of America, Appellee.
    No. 23-935.
    United States Court of Appeals, Ninth Circuit.
    Nov. 29, 1974.
    Burton Marks, Beverly Hills, Cal., for appellant.
    Edward J. Wallin, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
    Before BARNES, KILKENNY and TRASK, Circuit Judges.
   OPINION

PER CURIAM:

The decision and opinion of this court affirming convictions for having mailed obscene matter in violation of 18 U.S.C. § 1461, and for having transported obscene matter in violation of 18 U.S.C. § 1462, was dated September 16, 1970, and reported in 431 F.2d 655 (9th Cir. 1970). The Supreme Court, on June 25, 1973, vacated that judgment and remanded the cause to this court for reconsideration in the light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and related cases. 413 U.S. 913, 93 S.Ct. 3030, 37 L.Ed.2d 1022 (1973).

Subsequent proceedings have kept the case in litigation. Most recently it has been returned by the court en banc to the original panel for disposition. We now reaffirm the convictions and adopt our previously reported opinion in 431 F.2d 655, on the authority of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

We described the materials in our opinion, 431 F.2d at 658, and held that they were constitutionally obscene under the tests then prevailing. We find they are equally obscene under the tests of Miller v. California, supra, and Hamling v. United States, supra. We have considered the issues tendered by appellants in their rebriefing of the issues in the light of Miller and Hamling. We find that the arguments have been foreclosed to them by Hamling or are frivolous, e. g., that a conviction and incarceration would constitute cruel and unusual punishment.

The judgment is reaffirmed.


author: GEE, Circuit Judge:

text:
    Richard WHITE, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Third Party Plaintiff, v. JACKSONVILLE SHIPYARDS, INC., Third Party Defendant-Appellant.
    No. 74-1385.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.
    Rehearing Denied March 10, 1975.

      John E. Houser, Jacksonville, Fla., for third party defendant-appellant.
    Steven A. Werber, Carl M. Stewart, Jacksonville, Fla., Bill J. Sanders, Beaumont, Tex., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges. •->
   GEE, Circuit Judge:

Appellee White, injured when a lamp exploded aboard the USS SARATOGA sued Appellee United States as vessel owner asserting unseaworthiness. It, in turn, brought in Appellant Jackson Shipyards, Inc. (Shipyards), White’s employer and the owner of the lamp, as third-party defendant. Behind these straightforward matters lies, however, a complicating prequel.

White had received compensation under the Longshoremen’s and Harbor Workers’ Act (LHWA) which provides as to claims against any third person thought to be liable in damages:

Acceptance of such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award. 33 U.S.C. § 933(b).

White commenced no action within the six-months period, and Shipyards instructed its attorneys to prosecute White’s claim as statutorily assigned to it. They sued the manufacturer of the light in negligence and implied warranty. In the interim, unknown to Shipyards, White had instituted this action on the admiralty side against the United States. When hailed in here as a third-party defendant, Shipyards interposed its statutory assignment by way of defense, suggesting that it alone was the proper plaintiff. Suffering an adverse ruling, it brings this appeal.

The plain words of 933(b) come to us with a gloss. Czaplicki divines a congressional intent to permit the injured “assignor” to prosecute his claim where a conflict of interest as to the defendant and inaction on the part of the “assign-ee” exist. We have already held that the Czaplicki doctrine survived the 1959 amendments to the LHWA, amendments which abolished the former election requirement of 933(a) and granted the employee the present statute’s six-months’ leeway. McClendon v. Charente Steamship Co., 348 F.2d 298 (5th Cir. 1965). The case at bar requires us to apply present § 933 to a situation which, if it occurred to the Congress, was confided to the courts for resolution by a resounding statutory silence: What happens if, as here, the statutory assignee has a conflict of interest (and fails to act) as to one likely defendant but has no adverse interest as to (and sues) another? Is there a statutory assignment of the cause which the assignor sued on, of that he did not sue on also, or of neither?

Strictly speaking, our inquiry here is confined to the proper treatment of the cause presenting a conflict of interest and not sued on, for that is our case. Some limited consideration of the other instances is necessary, however, lest we reduce the general area to a shambles in order to tidy one corner. As to the cause here on appeal, little or no extension of the Czaplicki and Charente rationales is required to determine that it was properly brought by White. Czaplicki recognizes a continuing, practical interest of the employee in his assigned claim, authorizing him to enforce it rather than see it wear away in hostile hands. Charente discerns no reason in benefitting the third party by insuring that a perhaps-just claim against him is thus stifled. The observations apply with undiminished force to White’s claim against the United States. He must be permitted to maintain it.

On the other hand, this by no means requires that Shipyards be ousted from pursuit in White’s and its own behalf of his claim against the lamp-maker, or from its congressionally-granted bounty for bringing suit. It is true that no duplicating recovery of damages for the same injury may be had. And it is possible that procedural pitfalls for the unwary lie along the way. See, e. g., Prosser, Torts 267-8 (3d Ed. 1964). Nevertheless, if we are to give effect to the apparent congressional purposes both to permit the employee to enforce his own claim when it comes to rest in doubtful hands, but at the same time to encourage the employer-assignee to pursue such actions over as he will, our choice is clear.

Affirmed.

      . Shipyards filed its answer to the third party complaint which not only contained a general denial of White’s complaint but also set out the affirmative defense of contributory negligence and “operational negligence.” Paragraph 6 of Shipyards’ answer asserted its right to file suit for recovery of injuries to White based upon the statutory assignment of 33 U.S.C. § 933(b). White moved to strike Paragraph 6 of Shipyards’ answer because of a conflict of interest. The district court granted the motion, and it is from that order that this appeal is taken.

      . Czaplicki v. Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387 (1956).

      . Cf. Gill v. United States, 429 F.2d 1072, syl. 11 (5th Cir. 1970).


author: INGRAHAM, Circuit Judge: DUNIWAY, Circuit Judge

text:
    Stanford W. ASCHERMAN, M.D., Plaintiff-Appellant, v. PRESBYTERIAN HOSPITAL OF PACIFIC MEDICAL CENTER, INC., aka Presbyterian Medical Center, and Pacific Medical Center, aka Presbyterian Hospital of Pacific Medical Center, Defendants-Appellees.
    No. 74-1105.
    United States Court of Appeals, Ninth Circuit.
    Dec. 10, 1974.

      Brian McCarthy (argued), San Francisco, Cal., for plaintiff-appellant.
    Herbert I. Pierce, III (argued), of Crosby, Heafy, Roach & May, Oakland, Cal., for defendants-appellees.
   OPINION

Before DUNIWAY, INGRAHAM and WALLACE, Circuit Judges.

INGRAHAM, Circuit Judge:

This appeal presents the question whether a private hospital’s receipt of federal funds under the Hill-Burton Act, coupled with federal and state tax exemptions, constitutes state action sufficient to confer jurisdiction on this court under 42 U.S.C. § 1983. The district court concluded that the mere receipt of federal funds for construction of the facilities, even when coupled with the asserted tax exemptions, was an insufficient connection with the State of California or the federal government to transform the conduct of a purely private hospital into action of the state and dismissed the complaint for want of state action. We affirm.

Appellant Stanford W. Ascherman is a medical doctor who was a member of the staff at Callison Memorial Hospital. After transferring all of its liabilities and assets to the appellee, Presbyterian Hospital, Callison was closed, terminating appellant Ascherman’s staff privileges. It was suggested that Ascherman apply for staff privileges at Presbyterian Hospital, and he did so, but his application was denied. Ascherman then brought this action, contending that his staff privileges were arbitrarily and capriciously terminated in violation of his right to due process.

Only when the state becomes “to some significant extent” involved in the conduct of the affairs of a private institution can that conduct be classified as state action and thus run afoul of the Fourteenth Amendment. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). In making the determination whether the actions of the private institution are so related to the state, the courts in recent years have been confronted with the question whether receipt of federal funding can transform private conduct into conduct by the state. In Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), ' a black physician charged the Cone Hospital with racial discrimination, alleging that this discrimination violated the Fourteenth Amendment because the hospital received funds under the Hill-Burton Act. Concluding that the hospital’s exclusion of black patients and doctors was indeed state action, the Simkins court noted that not only was the hospital receiving federal funding under the Hill-Burton Act, but that the state regulations through which the federal monies were funneled specifically encouraged a policy of racial segregation. In the court’s view, the federal funding, coupled with the state’s regulatory scheme, was a sufficient connection with the state to transform the private action of the hospital into the action of the state.

More recent decisions have defined clearly the substantial relationship between the hospital and the state in Simians. By promulgating a regulatory scheme that encouraged the exclusion of blacks from the hospital, the State of North Carolina was intimately involved in the very conduct of which the plaintiff complained. Bond v. Dentzer, 494 F.2d 302 (2nd Cir. 1974); Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973); Powe v. Miles, 407 F.2d 73 (2nd Cir. 1968). See generally, H. Friendly, The Dartmouth College Case and the Public-Private Penumbra, 12 Texas L.Q. 141. The direct connection between the state and the violation of plaintiff’s civil rights was enough to convert the action of the private institution into the action of the state.

Mindful of this need for a connection between the state’s involvement and the plaintiff’s deprivation, we do not think that under the particular facts of this case the appellant has established state action. The mere receipt of Hill-Burton funds, even coupled with the alleged tax exemptions, is not a sufficient connection between the state and the private activity of which appellant complains to make out state action. The appellant cites us to no regulation, and our independent research reveals none, that authorizes the State of California or the federal government to participate in the appointment of medical doctors to the staff of Presbyterian Hospital. Since there is no state action, the termination of appellant’s staff privileges need not conform to the constitutional commands of the Fourteenth Amendment.

Affirmed.

DUNIWAY, Circuit Judge

(concurring):

I concur, but add some observations of my own.

Presbyterian Hospital is “private.” It is not owned or operated by the State of California or any of its political subdivisions. No agency of the state selects or is represented on its governing board. Thus several of the cases in which the receipt of Hill-Burton funds or the grant by the state of tax exemption, or both, are mentioned are not in point. See, e. g.: O’Neill v. Grayson County War Memorial Hospital, 6 Cir., 1973, 472 F.2d 1140, 1142-1143;. Chiaffitelli v. Dettmer Hospital, Inc., 6 Cir., 1971, 437 F.2d 429; Sosa v. Board of Managers of Val Verde Memorial Hospital, 5 Cir., 1971, 437 F.2d 173, 174; Foster v. Mobile County Hospital Board, 5 Cir., 1968, 398 F.2d 227, 230; Meredith v. Allen County War Memorial Hospital Commission, 6 Cir., 1968, 397 F.2d 33, 35.

Appellant has not shown that there is any California statute or regulation dealing with the procedure or qualifications for staffing the Presbyterian Hospital with doctors. All that is shown is that the hospital’s receipt of substantial Hill-Burton funds does subject certain of its operations to regulation by the state, and that it is exempt from state taxes. Presumably, although we need not so decide, if the hospital took some action under applicable state regulations that action would be “state action.” Our question, then, is narrow: whether other actions by the hospital, not regulated by the state, are “state action” merely because the hospital has received Hill-Burton funds, is tax exempt, and is partially regulated by the state. The answer to this question is “no.”

There are many “private” charitable organizations that receive subventions of various kinds from the state or its political subdivisions. I think that it would be most unfortunate to adopt a rule that receipt of such subventions automatically transforms everything that these organizations do into “state action.” The proposition could produce startling results. For example, if a private tax exempt university received state moneys to build and used them to build a library, would that mean that the librarian’s action in ejecting a noisy student from that library is “state action”? I cannot believe that the state action notion goes so far.

The weight of authority supports our holding that state action is not involved here. The following cases are directly in point: Jackson v. Norton-Children’s Hospitals, Inc., 6 Cir., 1973, 487 F.2d 502; Ward v. St. Anthony Hospital, 10 Cir., 1973, 476 F.2d 671, 675. These cases involve staff privileges of doctors. Also in point are Place v. Shepherd, 6 Cir., 1971, 446 F.2d 1239, 1245, involving a nurse, and Doe v. Bellin Memorial Hospital, 7 Cir., 1973, 479 F.2d 756, 761, involving a hospital rule about abortions.

Closely in point are cases dealing with other private charitable tax exempt corporations: Blackburn v. Fisk University, 6 Cir., 1971, 443 F.2d 121; Powe v. Miles, 2 Cir., 1968, 407 F.2d 73, 81; Bright v. Isenbarger, 7 Cir., 1971, 445 F.2d 412; Browns v. Mitchell, 10 Cir., 1969, 409 F.2d 593, 595-596. What I believe to be the correct rule is stated by Judge Friendly in Powe v. Miles, supra, 407 F.2d at 81: “[T]he state must be involved not simply with some activity of the institution . . . but with the activity that caused the injury.” No such involvement is shown here.

Appellant relies primarily upon a line of decisions of the Fourth Circuit, some of which, in my view, go too far in finding “state action” by a hospital because of its receipt of Hill-Burton funds. The leading case, Simkins v. Moses H. Cone Memorial Hospital, 4 Cir., 1963, 323 F.2d 959, is readily distinguishable because there the state, in applying for the funds, took advantage of a “separate but equal” provision of the Hill-Burton Act. As a result, the hospitals receiving the funds discriminated against blacks. Eaton v. Grubbs, 4 Cir., 1964, 329 F.2d 710; and Smith v. Hampton Training School for Nurses, 4 Cir., 1966, 360 F.2d 577, also involved racial discrimination. I think it fair to say that federal courts, rightly or wrongly, are more likely to find state action where race discrimination is involved than in due process types of cases, like the case at bar. However, the Fourth Circuit has gone much further, and has found, in substance, that acceptance of Hill-Burton funds has transmogrified the accepting hospital in all of its operations into a public institution. Sams v. Ohio Valley General Hospital Ass’n, 4 Cir., 1969, 413 F.2d 826; Christhilf v. Annapolis Emergency Hospital, Inc., 4 Cir., 1974, 496 F.2d 174. These cases, I think, are wrong, and we are not following them here.

       The Honorable Joe McDonald Ingraham, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.

      . 42 U.S.C. § 291 (1970).

      . Although the court in Simkins was concerned specifically with the racially discriminatory practices of the Cone Hospital, the policy of Simkins has been expanded to include other questions besides just race. Sams v. Ohio Valley General Hospital Ass’n, 413 F.2d 826 (4th Cir. 1969); see Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964).

      . Judge Friendly also authored the Powe v. Miles case, supra.


author: HASTIE, Senior Circuit Judge: PER CURIAM:

text:
    Richard PICKUS et al., Appellees, v. UNITED STATES BOARD OF PAROLE, Appellant.
    No. 73-1987.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 11, 1974.
    Decided Oct. 11, 1974.
    Rehearing Denied Dec. 10, 1974.

      Victor D. Stone, Atty., Dept, of Justice, with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, was on the brief for appellant. Earl J. Sil-bert, U. S. Atty. and Robert M. Werdig, Jr., Asst. U. S. Atty., entered appearances for appellant.
    Victor H. Kramer, Washington, D. C., with whom Richard B. Wolf, William L. McGovern, Abe Krash and Patrick F. J. Macrory, Washington, D. C., were on the brief for appellees.
    Before HASTIE, Senior Circuit Judge for the Third Circuit, and ROBB and WILKEY, Circuit Judges.

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

   HASTIE, Senior Circuit Judge:

Section 4 of the Administrative Procedure Act (hereinafter, the Act) 5 U.S.C. § 553, requires that federal agency rule-making be attended by advance public notice and opportunity for interested persons to participate through oral or written submission of data or opinion. For many years the United States Board of Parole has published guidelines which specify many of the factors which it considers in the exercise of its discretion to parole eligible federal prisoners. E. g., Rules of the United States Board of Parole (1971). It has never complied with section 4 of the Act.

In May, 1972, the appellees, three federal prison inmates, petitioned the appellant Board of Parole to conduct a public rule-making proceeding consistent with section 4 of the Act, to amend various of its stated rules. Since the Board failed to act on their petition, appellees filed their complaint in the district court in January, 1973. The complaint did not specifically request the court to declare that any of the Board’s rules had been illegally promulgated, but sought only to compel a response to the petition, pursuant to §§ 4(d), 6(d), and 10(e) (A) of the Act. In March, 1973, after appel-lees filed a motion for judgment by default, Maurice Sigler, Chairman of the Parole Board, denied appellees’ May, 1972, petition in a letter to their attorney.

The parties then presented various motions and arguments to the district court, with consequent sharpening and modifying of the issues in the case. The Board admitted that it is an agency as that term is defined in section 2(a) of the Act, 5 U.S.C. § 551(1), and moved to dismiss the complaint as mooted by Mr. Sigler’s letter denying appellees’ petition. The court accepted the Board’s concession, but correctly ruled the case not moot, because a controversy still existed over the validity of the rules then in effect. The court then suggested that those rules could be valid if and only if they were exempted from the effect of section 4. Accordingly, the case went forward on the issues of whether the denial of the inmate’s petition for a public rule-making proceeding was arbitrary, and whether the rules then in effect should be declared void for failure to comply with section 4 of the Act. Following the submission of memoranda of law, the court held that the rules were void and ordered the Board to adopt replacements in proceedings which complied with the Act. The Board has appealed from that order.

The jurisdiction of the district court is the first issue that requires consideration. 'In a number of decisions, this court has recognized Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706, as an independent source of jurisdiction that empowers district courts to review much agency action regardless of the amount in controversy. Independent Broker-Dealers’ Trade Ass’n v. Securities and Exchange Commission, 1971, 142 U.S.App.D.C. 384, 442 F.2d 132, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57; Scanwell Laboratories, Inc. v. Shaffer, 1970, 137 U.S. App.D.C. 371, 424 F.2d 859; Hurley v. Reed, 1961, 110 U.S.App.D.C. 32, 288 F.2d 844; Robbins v. Reed, 1959, 106 U.S.App.D.C. 51, 269 F.2d 242; but compare Pan American World Airways, Inc. v. Civil Aeronautics Board, 1968, 129 U.S.App.D.C. 159, 392 F.2d 483; Kansas City Power & Light Co. v. McKay, 1955, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780. Decisions of other courts of appeals on this question are irreconcilably conflicting. The Supreme Court has not clearly and explicitly settled the matter, but we read the Court’s decisions as lending significant support to the view that Section 10 of the Administrative Procedure Act does authorize district courts to entertain suits challenging the validity of agency action without regard for the amount in controversy. Citizens To Preserve Overton Park, Inc. v. Volpe, 1971, 401 U.S. 402, 91 S.Ct. 828, 28 L.Ed.2d 168; Abbott Laboratories v. Gardner, 1967, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681; Rusk v. Cort, 1962, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809, aff’g, D.D.C.1960, 187 F.Supp. 683.

We hold that the district court had jurisdiction to entertain the present complaint under the mandate of Section 10(a) of the Act, 5 U.S.C. § 702, that “a person . . . adversely affected or aggrieved by agency action . is entitled to judicial review thereof;” the provision of Section 10(b), 5 U.S.C. § 703, that the “form of proceeding for judicial review is any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction”; and the requirement of Section 10(e), 5 U.S.C. § 706, that the “reviewing court shall . . . (2) hold unlawful and set aside agency action, findings and conclusions found to be . . . (D) without observance of procedure required by law. . . .”

We have considered the Board’s argument that its promulgation of parole selection criteria is not subject to judicial review — whether or not subject to the Act — because release on parole is committed to agency discretion within the meaning of Section 10 of the Act, 5 U.S.C. § 701(a)(2), by 18 U.S.C.' § 4203(a). But we are not reviewing the granting or denying of parole in a particular case, action which may reflect an unreviewable exercise of agency discretion. We are not even reviewing the merits of the rules and standards the Board has adopted. The appellees’ complaint and our consequent adjudication address themselves solely to the procedures by which those rules may be formulated. The justiciability of such a complaint depends upon Section 10, particularly subsection (e), of the Act, as already discussed, not the discretionary character of the Board’s determinations as to when parole shall be granted. The giving of notice of rule-making and the consideration of consequent submissions by interested persons might inform, but would not otherwise impinge upon, the Board’s discretion in framing its standards and guidelines.

We turn now to the merits of the appeal. The procedure below and certain events subsequent to the entry of judgment necessitate preliminary identification of the issues that are properly before us. First, although the complaint did not specifically ask for a declaration that the rules then in effect were invalid, and although it was never formally amended, the general prayer for necessary, just, and proper relief, coupled with the above mentioned focusing of the parties’ attention upon their basic controversy about the rules’ validity, justified the district court’s adjudication of that issue. See also Rule 54(c), F.R.C.P. Thus, unless the question of the validity of the rules which the district court invalidated has since been mooted, that issue is properly before this court.

The mootness issue arises from the fact that on September 19, 1973, the Parole Board published new rules. 38 Fed.Reg. 26652, 31942. The first publication altered many of the Board’s procedures for hearing and deciding parole applications. It also placed in the Federal Register, with slight change, the criteria for parole selection which appear in the 1971 Rules, supra. Those regulations, however, were made applicable to only one part of the country, and they do not apply to two of the appellees.

The November announcement consists of a complex, detailed table which purports to state the range of months which the Board will require an inmate to serve depending upon the severity of his offense (six classifications) and his “salient factor score” (four classifications), a number computed according to factors also announced in the November publication. The November regulation apparently applies nationwide and may largely replace prior rules regarding the criteria used for parole selection, though no such statement appears. In any event, the November regulation speaks to one of the areas of Board operation which the original complaint addressed. Within that area it is a more rigid structuring of the Board’s discretion than were the criteria it replaces. Indeed, it is designed to, and almost surely will lead to, more nearly uniform decisions, and more restricted decision-making. In these circumstances, the Board’s September and November pronouncements preserve, rather than moot, the original controversy over the validity of rules adopted without compliance with Section 4 of the Act.

As it promulgated the November regulation, the Board asserted that it was not subject to the Act, the belief of the court below notwithstanding. 38 Fed.Reg. 31942. The Board reasoned then and contends on this appeal that it is not an “agency” as that term is defined in the Act, although in the district court it conceded that it is such an “agency” and subject to the Act. Appellees do not rely on that concession and we shall dispose of the Board’s present contention on its merits.

Section 2(a) of the Act defines agency for purposes of the Act as “each authority of the United States”, other than certain exclusions. None of the specified exclusions embraces the Board. Moreover, this court has said that the Act, including the definitional section, should be received hospitably. See, e. g., Soucie v. David, 1971, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1073; Chotin Towing Corp. v. Federal Power Commission, 1957, 102 U.S.App.D.C. 69, 250 F.2d 394. Legislative history, though sparse, supports a broad, inclusive reading of the Act. S.Doe.No.248, 79th Cong., 2d Sess. (1946) at 196, 253, 305, 354.

None of the Board’s arguments for exemption are impressive. The fact that the legislative history of the Act makes no reference to the Board or its unique problems is not significant because the same is true for a great number of agencies that unquestionably are covered. Indeed, the bill was not drafted as one which dealt with particular agencies by name, but rather as a regulation of particular types of functions in which agencies of the Executive Branch generally engage. S.Doc.No.348 at 191 (S.Rep.), 250 (H.R.Rep.). Thus, some types of functions were exempted, not particular Executive Departments or agencies. Such functions as this case presents were not exempted.

The Board’s legislative history argument seems, if anything, contrary to its position. The Walter-Logan bill, H.R. Bill No. 6324, 76th Cong. 3d Sess. (1940), a predecessor of the Act which President Roosevelt vetoed, contained an express exemption for the Department of Justice that would have covered the Board. S.Doc.No.145, 76th Cong., 3d Sess. (1940) at 24-25. The Act, however, contains no exemption for either the Department or the functions at issue here. Its draftsmen were familiar with the then recently ill-fated Walter-Logan bill and deliberately adopted a different scheme. Whether, as the Board argues, “the rationale for exemption of the criminal process . . . remains viable”, is irrelevant to this case since Congress abandoned that approach.

We find unpersuasive an argument of the Board that it is exempt because the Probation Service is exempt. The exemption of the latter is warranted not by the functions it performs as the Board suggests, but by its status as an auxiliary of the courts, which, unlike agencies of the executive branch, are specifically excluded.

The Board also argues that Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, holding that the due process clause does not require appointment of counsel in every parole revocation proceeding of an indigent person, suggests that the Act does not apply to the Board, because Section 6(a) of the Act, 5 U.S.C. § 555(b), authorizes counsel at agency hearings. But aside from the fact that Gagnon involved the application of the Constitution to the states, not the impact of a statutory regulation of federal administration, Section 6(a) does not suggest that the appointment of counsel is required. Hyser v. Reed, supra n. 7, 115 U.S.App.D.C. 254, 318 F.2d at 237.

A major Board contention is that, functionally viewed, its actions here at issue are exempt from the rule-making procedures because they are either general statements of policy, interpretative rules, or rules relating to agency organization, practice or procedure, all of which are explicitly exempted by Section 4 (a). We now consider each of those categories.

Several courts have ruled that agency action cannot be a general statement of policy if it substantially affects the rights of persons subject to agency regulations. Lewis-Mota v. Secretary of Labor, 2d Cir. 1972, 469 F.2d 478, 482; Texaco, Inc. v. Federal Power Commission, 3d Cir. 1969, 412 F.2d 740, 744; National Motor Freight Traffic Ass’n v. United States, D.D.C.1967, 268 F.Supp. 90, 95-97, aff’d, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19; cf., Public Service Commission of State of New York v. Federal Power Commission, 1967, 126 U.S.App.D.C. 26, 373 F.2d 816; rev’d in part on other grounds, 1968, 391 U.S. 9, 88 S.Ct. 1526, 20 L.Ed.2d 388; see also Seaboard World Airlines v. Gronouski, D.D.C.1964, 230 F.Supp. 44. As the cited cases state, that outer boundary of the general policy exemption derives from congressional purpose in enacting Section 4 — that the interested public should have an opportunity to participate, and the agency should be fully informed, before rules having such substantial impact are promulgated.

The guidelines which the Board had adopted prior to this action, Rules, supra, at 14-16, were of a kind calculated to have a substantial effect on ultimate parole decisions. They consist of nine general categories of factors, broken down into a total of 32 sub-categories, often fairly specific. Although they provide no formula for parole determination, they cannot help but focus the decision-maker’s attention on the Board-approved criteria. They thus narrow his field of vision, minimizing the influence of other factors and encouraging decisive reliance upon factors whose significance might have been differently articulated had Section 4 been followed.

The November regulation is more formula like, and hence has an even greater impact on an inmate’s chances for parole. Under that regulation the amount of time an inmate serves in prison will depend on five elements, three of which the regulation firmly controls. First, it places each offense in one of six categories of relative severity. The determination into which category a given offense falls places a particular minimum and maximum on the amount of time almost all offenders will serve. Second, an inmate’s salient factor score is determined according to rigid criteria, items A-I, 38 Fed.Reg. 31945. Under the rule, the score is computed using only those criteria, and the quantitative input of each is specified as well. Computation of the score is a purely mechanical operation. Third, the chart sets a narrow range of months of imprisonment that will be required for a given category of offense and a given salient factor score. This is not to suggest that these determinants are either unfair or undesirable, but merely that they have significant consequences. Thus, the rules which define parole selection criteria, new and old, are substantive agency action, for they define a fairly tight framework to circumscribe the Board’s statutorily broad power.

Additionally, these are not interpretative rules. As the word interpretative suggests, and as the legislative history makes clear, interpretative rules consist of administrative construction of a statutory provision on a question of law reviewable in the courts. S.Doc.No.248, supra at 18-19. Treasury Regulations interpreting the Internal Revenue Code are a prime example. The Board's statements are not interpretations of a statute’s meaning. Rather, they are self imposed controls over the manner and circumstances in which the agency will exercise its plenary power. They have the effect of law and are not reviewable except for arbitrariness. Hence, they are not the kind of action Congress undertook to exempt from statutory requirements that regulate the rule-making process. S.Doe.No.248, supra at 18-19; accord, Gibson Wine Co. v. Snyder, 1952, 90 U.S.App.D.C. 135, 194 F.2d 329; National Ass’n of Ins. Agents v. Board of Governors of the Federal Reserve System, 1974, 160 U.S.App.D.C. 144, 489 F.2d 1268.

In keeping with the type of action Congress sought to exempt, a matter “relating to practice or procedure” means technical regulation of the form of agency action and proceedings. This category too, should not be deemed to include any action which goes beyond formality and substantially affects the rights of those over whom the agency exercises authority. Certainly, it does not include formalized criteria adopted by an agency to determine whether claims for relief are meritorious. Kessler v. F. C. C., 1963, 117 U.S.App.D.C. 130, 326 F.2d 673, 679-682; Ranger v. F. C. C., 1961, 111 U.S.App.D.C. 44, 294 F.2d 240, 244; Seaboard World Airlines, supra.

Judged by the same standards, the Board’s regulations concerning parole hearings also seem not to fall within any of the exemptions from Section 4. These are no more interpretative rules, general statements of policy, matters relating to personnel, or matters left to agency discretion than are the criteria used to dispose of parole applications. The Board’s argument that these are rules of agency procedure and practice is more substantial, but, as stated above, adherence to congressional purpose counsels a construction of this exemption that excludes from its operation action which is likely to have considerable impact on ultimate agency decisions. If the regulations regarding parole hearings are likely to produce parole decisions different from those which alternatives would be likely to produce, then the exemption should not apply. On the other hand, such a regulation as Section 2.15, which merely prescribes order and formality in the transaction of Board business, is clearly within the procedure and practice exemption.

The district court properly decided that the Board’s challenged rules, as they existed when this suit was filed, were essentially invalid. Moreover, since the new guidelines for decision upon the granting of parole adopted during the pendency of this suit are invalid for the same reason, the district court’s order that any replacements be adopted in proceedings that conform to the Act continues to be appropriate and essentially correct. However, the district court shall be free to modify its judgment to specify and exclude from its mandate any existing rules of a type that, under the rationale of this opinion, could properly be adopted without notice and opportunity to be heard.

The judgment is affirmed.

ON PETITION FOR REHEARING

PER CURIAM:

The appellant has filed a petition for rehearing addressed solely to the question of the retroactive effect of our decision in this case upon past Parole Board hearings and decisions in individual cases.

Our opnion in this ease did not purport to invalidate and our decision does not have the effect of invalidating past determinations of the Board upon the merits of particular cases. Cf. Wolff v. McDonnell, decided June 26, 1974, 418 U.S. 539, at 573, 94 S.Ct. 2963 at 2983, 41 L.Ed.2d 935.

The petition for i*ehearing is denied.

      . Rules has been published in successive edition since 1930. A copy of the 1971 edition, in effect when the complaint was filed, appears in the record.

      . The petition focused on 28 C.F.K. §§ 2.14, 2.15, 2.16 and Rules at 14-16 (general factors in parole selection) but apparently contemplated the possibility of wholesale reform of the Board’s procedures. Two public interest groups were co-petitioners, but are not parties to this action.

      . This court has stayed the order of the district court pending appeal.

      . Cases which hold the Act to be an independent grant of district court jurisdiction include Bradley v. Weinberger, 1st Cir. 1973, 483 F.2d 410; Brandt v. Hickel, 9th Cir. 1970, 427 F.2d 53; Brennan v. Udall, 10th Cir. 1967, 379 F.2d 803; Deering Milliken, Inc. v. Johnston, 4th Cir. 1961, 295 F.2d 856; see also, In re School Board of Broward County, Florida, 5th Cir. 1973, 475 F.2d 1117.
      Two circuits have reached contrary decisions : e. g., Zimmerman v. United States Government, 3d Cir. 1970, 422 F.2d 326; Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 8th Cir. 1967, 370 F.2d 529; but see State Highway Commission of Missouri v. Volpe, 8th Cir. 1973, 479 F.2d 1099 (noting intervening Supreme Court decisions).
      Decisions of the Second Circuit recognize intra-circuit conflict: Toilet Goods Ass’n v. Gardner, 2d Cir. 1966, 360 F.2d 677, aff’d, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697; Aguayo v. Richardson, 2d Cir. 1973, 473 F.2d 1090.

      . The requirement that the reviewing court be one of “competent jurisdiction” can reasonably be read as a recognition of generally ajiplicable venue requirements.

      . 5 U.S.C. § 551(1) (1970) :
      For the purpose of this subchapter—
      (1) “agency” means each authority of the United States, whether or not it is within or subject to review by another agency, but does not include—
      (A) the Congress;
      (B) the courts of the United States;
      (C) the governments of the territories or possessions of the United States;
      (D) the government of the District of Columbia;
      or except as to the requirements of section 552 of this title—
      (E) agencies composed of representatives of the parties or of organizations of the parties to the disputes determined by them;
      (F) courts martial and military commissions ;
      (G) military authority exercised in the field in time of war or in occupied territory; or
      (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 of title 41; or sections 1622, 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;

      . Revocation proceedings have often been held not subject to the Act, e. g., Hyser v. Reed, 1963, 115 U.S.App.D.C. 254, 318 F.2d 225, 237 (en banc), cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315, Hiatt v. Compagna, 5th Cir. 1949, 178 F.2d 42, aff’d by an equally divided court, 1950, 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639, but whether the Board was an agency was not at issue.
      In Hurley v. Reed, supra, 110 U.S.App.D.C. at 34, 288 F.2d at 846, this court said that “the Board is clearly an administrative agency . ” although that was not the issue there.

      . This court has ruled that at least retained counsel must be permitted at revocation proceedings. Compare, Ilyser, supra, with Glenn v. Reed, 1961, 110 U.S.App.D.C. 85, 289 F.2d 462.

      . The Section 4(a) exemption is by its terms from only the notice requirement, but Section 4(b) applies only if Section 4(a) also applies.
      The Board also claims exemption under the agency personnel provision of Section 4, 5 U.S.C. § 553(a) (2), asserting that prisoners are Board personnel. AVe reject this argument as frivolous. Prisoners are a Board regulated group, not its employees.

      . For example, the September 24 promulgation dropped certain factors. Compare, e. g., Rules, supra at 15 (E, F) with 38 Fed.Reg. at 26654 (§ 2.24(e), (f)).

      . The other two factors, not controlled by the regulation, the (1) when within the specified range an inmate should be released, and (2) whether circumstances warrant departure from the chart. Given that the first of these provides some flexibility, the second is likely to receive infrequent use.


text:
    UNITED STATES of America v. Robert L. BROCK, Appellant.
    No. 73-2105.
    United States Court of Appeals, District of Columbia Circuit.
    Oct. 18, 1974.

      Richard B. Wolf, Washington, D.C. (appointed by this Court), Ted B. Babich * and Ed Beckwith, were on the brief for appellant.
    Earl J. Silbert, U.S. Atty., John A. Terry, Brian W. Shaughnessy and Justin D. Simon, Asst. U.S. Attys., were on the brief for appellee.
    Before LEVENTHAL and ROBB, Circuit Judges, and NICHOLS, Judge, United States Court of Claims.

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

       Sitting by designation pursuant to 28 U. S.O. § 293(a).

   PER CURIAM:

The appellant Brock entered a plea of guilty to two counts of an indictment alleging possession of heroin and marijuana, with intent to distribute, in violation of the Controlled Substances Act of 1970, 21 U.S.C. § 841(a).

On the basis of a presentence report the District Court ordered Brock committed for evaluation and study under 18 U.S.C. § 4208(b). On November 10, 1972 the court, pursuant to 18 U.S.C. § 4208(a)(2), sentenced Brock to imprisonment for “not more than five (5) years pursuant to the provisions of 18 U.S.C. § 4208 [a] (2), in which event defendant may become eligible for parole at such time as the Board of Parole may determine.”

The Controlled Substances- Act, under which Brock was charged and entered his plea of guilty, provides:

Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior [narcotics] conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 6 years in addition to such term of imprisonment.

21 U.S.C. § 841(b)(1)(A).

In the case of Brock this statute required the District Court to impose a special parole term of at least three years in addition to the term of imprisonment.

On April 4, 1973, some five months after he was sentenced, Brock moved to vacate and correct the sentence upon the ground that it was “illegal.” He contended the sentence should be corrected to include the special parole term and that the corrected sentence should not exceed the original sentence of not more than five years. The District Court denied the motion, holding that Brock had been sentenced under 18 U.S.C. § 4208(a)(2) and not under 21 U.S.C. § 841(b)(1)(A). On this appeal Brock renews the contention he made before the District Court. The government says that since the original sentence was illegal the court may correct it by now adding the additional special parole term of three years.

Brock contends “that his corrected sentence must be for a total of two years imprisonment and three years special parole so as not to exceed the original ‘no more than’ 5 years sentence. Thus, it is appellant’s position that a corrected sentence of, for example, five years plus three years special parole would be an impermissibly more severe sentence and thereby unlawful.” [Emphasis in original.]

The argument advanced-by the appellants has been considered and rejected by three circuit courts of appeals. Garcia v. United States, 492 F.2d 395 (10th Cir. 1974); Caille v. United States, 487 F.2d 614 (5th Cir. 1973); United States v. Thomas, 356 F.Supp. 173 (E.D.N.Y. 1972) , aff’d, 474 F.2d 1336 (2d Cir. 1973) . These decisions are based on Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1946), and we think they are sound. In our own circuit the rejection of Brock’s argument is supported by Hayes v. United States, 102 U.S.App.D.C. 1, 249 F.2d 516 (1957), and King v. United States, 69 App.D.C. 10, 98 F.2d 291 (1938).

We remand the case to the District Court with directions to correct the sentence by imposing a special parole term of at least three years. The district judge may reconsider the original sentence of five years of imprisonment in light of the three years of parole.

It is so ordered.