author: MURPHY, District Judge.

text:
    Irene Mitchell PALLIN, Plaintiff-Appellee, v. UNITED STATES of America and Edward Elmer Mitchell, Jr., Defendants-Appellants.
    No. 71-1624.
    United States Court of Appeals, Ninth Circuit.
    April 1, 1974.
    As Modified on Denial of Rehearing May 30, 1974.

      Carl Strass (argued), George R. Hyde, Dept. of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., Shiro Kashiwa, Asst. Atty. Gen., San Francisco, Cal., for defendants-appellants.
    William C. Wunsch (argued), Faulkner, Sheehan, Wunsch & Hartman, San Francisco, Cal., for plaintiff-appellee.
    Before ELY and TRASK, Circuit Judges, and MURPHY, District Judge.

       Honorable Thomas F. Murphy, Senior United States District Judge, Southern District of New York, sitting by designation.

   OPINION

MURPHY, District Judge.

Defendant-appellant, Edward Mitchell, Jr., and his sister, plaintiff-appellee, Irene Mitchell Pallin, are both enrolled Indians of the Yurok Tribe. Both sought thé same tract of land as an Indian allotment. The tract, 160 acres of the public domain located north of Hoopa in Humboldt County, California, was originally patented in 1907 to Nancy Burrill, grandmother of Edward and Irene. Since Nancy Burrill lived on land previously allotted to her on the Hoopa Valley Indian Reservation, she allowed her son, Edward Mitchell, Sr., father of the litigants, to establish a home on the public domain allotment. Edward Mitchell, Sr. occupied and improved the land. After his death his wife, Theresa Mitchell, lived on the land until 1953. Appellee Irene has occupied the allotment since 1953.

The Bureau of Indian Affairs eventually discovered that Nancy Burrill had illegally received both the 160-acre public domain allotment and the prior allotment on the Hoopa Valley Indian Reservation. Accordingly, on May 16, 1957, the public domain allotment patent was cancelled and the land restored to the public domain pursuant to the Act of April 23, 1904, as amended, 25 U.S.C. § 343.

On July 16, 1957, Irene and her brother Edward simultaneously filed Indian allotment applications for the 160-acre tract of land under Section 4 of the General Allotment Act of 1887, as amended, 25 U.S.C. § 334. As a result of a drawing in September 1957 to determine the priority of the two applications, the Bureau of Land Management (“BLM”) awarded Irene -the entire tract. On appeal, the decision was vacated by the BLM Director because the land had not been classified.

Since 1934 land in the public domain may not be disposed of by an Indian allotment until it has been classified as irrigable, nonirrigable agricultural or nonirrigable grazing land. The regulatory scheme was changed in 1934 when the Secretary of the Interior, pursuant to Executive Order 6910, withdrew all public lands in the ten western states from settlement. “Thereafter, classification by the Secretary was a prerequisite to * * * Indian settlement. Section 7 of the Taylor Grazing Act, 43 U.S.C. § 315(f), authorized the Secretary ‘in his discretion, to examine and classify any lands withdrawn or reserved’ by the executive orders. Bronken v. Morton, 473 F.2d 790, 793 (9th Cir. 1973).” Kale v. United States, 489 F.2d 449 (9th Cir., 1973).

On remand a BLM examiner recommended that 80 acres of the tract be classified as nonirrigable' agricultural land and 80 acres be classified as nonirrigable grazing land. The examiner’s report described the land as steep, rough terrain with several drainages and two small creeks. Valuable improvements had been made by the litigants’ parents. Approximately 12 acres of land had been cleared. The grazing area was almost entirely covered by valuable timber. There were several structures in various states of disrepair. Most of the improvements, including a house, barn and fences, were located on the agricultural portion. The examiner concluded that:

“While it would not be considered an economic unit by itself, the tract would constitute a good home, with a few repairs being made, for an individual who might obtain employment in the number of lumber mills located in the Hoopa Valley and has been proven so in view of the long and continued occupancy by Mrs. Theresa Mitchell and her children.” (Emphasis ours.)

The examiner indicated that the equities favored Edward because he was willing to provide a home for his mother and therefore recommended that he be awarded the improved portion of the tract, the nonirrigable agricultural land,, and that Irene be awarded the unimproved portion, the nonirrigable grazing land.

The recommendations of the examiner were accepted by the BLM and on July 5, 1960, a patent for the 80 acres of non-irrigable grazing land was issued to Irene and a patent for the 80 acres of non-irrigable agricultural land was issued to Edward. Irene then petitioned the BLM Director to cancel the patents and to divide the land differently. The petition was dismissed. The Secretary of Interi- or affirmed the decision of the Director of the BLM.

Pursuant to 25 U.S.C. § 345 and 28 U.S.C. § 1353, Irene brought the present suit against the United States and her brother in the District Court for the Northern District of California claiming that she had been wrongfully denied her right to an allotment by the Government and that the allotment issued to her brother was contrary to law. Notwithstanding the prior classification of the land by the Secretary of the Interior, the District Court found the entire tract to be nonirrigable grazing land, also that Edward was statutorily ineligible for an allotment. Accordingly, it ordered the cancellation of his patent and the issuance of a patent for that land to Irene in addition to the lands already allotted to her.

The District Court’s principal findings of fact and conclusions of law are quoted in the margin. It will be observed that it refrained from stating what standard of review it applied in reversing the Secretary’s classification of the 80 acres allotted to Edward, and likewise refrained from stating its reason for cancelling Edward’s allotment and ordering the issuance of a trust patent for those lands to the plaintiff Pallin. We surmise that Edward’s allotment was cancelled because the Court found he was an Indian living on an Indian Reservation at the time he applied for the allotment. Such Indians are specifically excluded by 25 U.S.C. § 334 from allotments of non-reservation land.

We therefore are called upon to decide what is the proper standard of review by a District Court of the Secretary of Interior’s decision in granting these allotments in an action brought pursuant to 25 U.S.C. § 345 and 28 U.S.C. § 1353. Such a determination in turn fixes the scope of appellate review of factual determinations by a trial court. Cf., F.R. C.P. 52. In addition, we must decide whether it was error to review and reverse the Secretary’s classification of the tract.

It is common ground that the District Court held a trial de novo on the classification by the Secretary of the 160 acres allotted to Irene and Edward. It heard and accepted the testimony of an associate timberland and timber properties appraiser employed by the Humboldt County Assessor’s Office, who opined that no portion of the 160-acre tract constituted agricultural land but admitted on cross-examination that he applied the standards of the Humboldt County Assessor’s Office and did not know what standards the Secretary of Interior applied in the classification of lands under the Taylor Grazing Act (Tr. 15). Cf., Regulations 43, C.F.R. § 176.-9(b) (I960). It also obviously rejected the testimony of Edward Mitchell and his mother and another relative to the effect that a considerable part of the tract was used for agricultural purposes for many years.

Although the scope of review by a District Court of Indian allotments made by the Secretary of Interior is not crystal clear, we are satisfied that in an action brought by an Indian under 25 U.S.C. § 345 and 28 U.S.C. § 1353, Congress has given to the District Court original jurisdiction to determine whether, in actions involving the right to an allotment under the General Allotment Act, 25 U.S.C. § 334 the Secretary acted within the limits Congress has placed on him. Hopkins v. United States, 414 F. 2d 464 (9th Cir. 1969); Finch v. United States, 387 F.2d 13 (10th Cir. 1967), cert. denied, 390 U.S. 1012, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968).

In Hopkins we held:
25 U.S.C. § 345 and 28 U.S.C. § 1353 give district courts original jurisdiction of actions involving the right to an allotment under the General Allotment Act. Plaintiffs’ contention that the Secretary exceeded powers conferred upon him by the governing statutes is subject to judicial review in such a suit.” (Citations and footnote omitted.) 414 F.2d at 466.

Sections 345 and 1353 give the District Court original jurisdiction of actions involving the right to an allotment under the General Allotment Act, 25 U. S.C. § 334. Both plaintiff Irene and her brother Edward were, in fact, given an allotment. What was at issue in the court below was Irene’s claim (1) that Edward was not entitled to an allotment because (a) he was living on an Indian Reservation at the time he applied and (b) that he had not made settlement on such land, and (2) that she alone was entitled to the entire tract of 160 acres because (a) she had made settlement and was living on it since 1953 and (b) the entire tract of 160 acres was nonirrigable grazing land and (c) that under the General Allotment Act she was entitled to an allotment of 160 acres of non-irrigable grazing land.

The rights to an allotment thus put in issue were (1) Edward’s right to an allotment, and (2) Irene’s right to the entire 160 acres.

We hold that the District Court quite properly received evidence negating Edward’s right to an allotment. Such evidence tended to prove that at the filing time he was living with his wife on an Indian Reservation and was therefore statutorily ineligible for an allotment of land in the public domain. 25 U.S.C. § 334. The District Court accordingly had the power to order his allotment cancelled. 25 U.S.C. § 345.

Every case but one that we have found has consistently held that the trial court could review the facts before the Secretary in determining whether the plaintiff Indian had a right to an allotment. United States v. Pierce, 235 F.2d 885 (6th Cir. 1956) (Agua Caliente Band of Mission Indians had the right to have their allotments equalized and the lower court could proceed to do just that unless it was assured that the Indian Service would proceed with diligence) ; Sloan v. United States, 118 F. 283 (C.C.D.Neb.1902), appeal dismissed, 193 U.S. 614, 24 S.Ct. 570, 48 L.Ed. 814 (1904) (reviewed evidence on the issue whether plaintiffs were members of the Omaha Tribe so as to be entitled to allotment in the tribal reservation); Waldron v. United States, 143 F. 413 (C.C.D.S.D.1905) (the court found on evidence that plaintiff was in fact an Indian and entitled to an allotment); Guyett v. McWhirk, 154 F. 784 (C.C.D. Or.1907) (two Indians applied for allotment of the same parcel of land, and reviewing the evidence the court affirmed the decision of the Interior Department that defendant had the superior right); Sully v. United States, 195 F. 113 (C.C. D.S.D.1912) (contrary to the Department of Interior, the court held on evidence that plaintiff was of Indian blood and entitled to an allotment). In Daniels v. United States, 247 F.Supp. 193 (W.D.Okl.1965), the plaintiff, in an action undoubtedly brought under 25 U.S. C. § 345 although jurisdiction was not discussed, sought a grant of an Indian allotment to a specific tract of land which the Secretary of Interior had refused to classify and open for entry as requested by plaintiff in an Indian allotment application. The district court held previously that the decision of the Secretary was subject to judicial review under the provisions of the Administrative Procedure Act and determined that a trial de novo was improper, since all proper factors appeared to have been considered and weighed in the Secretary’s decision. This case has not been followed by any other case on the issue of the application of the Administrative Procedure Act in an Indian allotment case.

Whether Irene was entitled to the entire 160-acre tract presented an entirely different issue to the District Court. As we indicated above, the regulatory scheme of Indian allotments was changed in 1934 when the Secretary of Interior withdrew all public lands in the ten western states from settlement. Thereafter, classification by the Secretary was a prerequisite to Indian settlement, so that at the time of Irene’s application for the allotment of the 160-acre tract settlement was not a condition precedent, and before any allotment could be made the Secretary was authorized by § 7 of the Taylor Grazing Act, 43 U.S.C. § 315f, “in his discretion, to examine and classify any lands withdrawn or reserved” by the Executive Orders. (See p. 29 swpra.) Thus, the principal question presented, with reference to Irene, was whether or no the District Court properly held a trial de novo concerning the Secretary’s classification of the tract.

We hold that it was error for the District Court to conduct such a trial and that it lacked jurisdiction to review the Secretary’s classification.

25 U.S.C. § 345 and 28 U.S.C. § 1353 give to the District Court original jurisdiction in actions involving the right to an allotment to review the decision of the Secretary of Interior. The classification of lands in the public domain by the Secretary of Interior is not a duty or obligation imposed on him by the General Allotment Act of 1887, as amended (25 U.S.C. § 334), but rather by § 7 of the Taylor Grazing Act (Act of June 28, 1934), 43 U.S.C. § 315f, which reads in part:

“The Secretary of the Interior is hereby authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (numbered 6910), * * * which are more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this chapter, * * *. Such lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry: * * (Emphasis supplied.)

It is obvious that the two Acts, the General Allotment Act and the Taylor Grazing Act, serve two different purposes, and what we said above concerning the jurisdiction of the District Court under § 345 and § 1353 relates exclusively to an Indian’s right to an allotment. The Taylor Grazing Act, particularly § 7, imposes the duty on the Secretary of Interior to classify the lands withdrawn pursuant to the Executive Orders, and such classification, Congress said, was to be in his discretion.

Such discretion is specifically excluded from review by the Administrative Procedure Act, 5 U.S.C. § 701(a) (2), for there it is provided:

“(a) This chapter applies, according to the provisions thereof, except to the extent that—
******
“(2) agency action is committed to agency discretion by law.”

Although we have been unable to find any case, nor has any been referred to us, which deals specifically with classification by the Secretary of the Interior for Indian allotment purposes, except Daniels, supra, similar attacks on the Secretary’s classification by non-Indians have been held nonreviewable. Sellas v. Kirk, 200 F.2d 217 (9th Cir.), cert. denied, 345 U.S. 940, 73 S.Ct. 831, 97 L. Ed. 1366 (1953). Cf., Lutzenhiser v. Udall, 432 F.2d 328 (9th Cir. 1970).

In Bronken v. Morton, 473 F.2d 790 (9th Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 51, 38 L.Ed.2d 62 (1973), an action was brought by holders of Valentine scrip to review the Secretary of Interi- or’s refusal to issue patents to public lands. There we said:

“While it is true, as the district court observed, that the Secretary’s discretion in classifying public lands is quite broad, it is equally true that this discretion is not absolute. His decisions are beyond judicial scrutiny only when he possesses discretion, and he acts within the limits Congress has placed on this discretion.” 473 F.2d at 794.

In Bronken the Secretary’s discretion in making a classification decision was limited by a 1964 statute which mandated that classification was to be made “under existing law.” The Secretary’s land-use regulations, adopted in 1966, could not be applied to pre-1966 applications.

The classification made by the Secretary in Pallin was not limited in any wise by any Congressional mandate or statute.

In any event, the District Court could not hold a trial de novo on the classification issue under the Administrative Procedure Act. The Supreme Court, in Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), said:

“. . . de novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions.” 411 U. S. at 142, 93 S.Ct. at 1244.

Pallin is not a case in which factfinding procedures were inadequate, nor is it a proceeding to enforce administrative action. Cf., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

The Secretary, however, was in error in granting an allotment to each of the litigants because he applied the wrong standard. In short, the standard is whether the acreage, whatever it is (agricultural or grazing), will provide a home and furnish a livelihood to an Indian and his family by farming, grazing livestock, or both. In Hopkins, supra, we defined the purpose of the General Allotment Act as follows:

“ * * * And the legislative history of the Act supports the conclusion that one of the standards to be applied by the Secretary in making the determinations required by section 1 is whether the reservation lands selected for allotment are capable of yielding support for an Indian settler and his family. If the lands are too poor to accomplish this purpose, the Secretary is not to approve the allotment.
“Section 4 of the General Allotment Act, applicable to Indians not residing on a reservation, is to be read with the same limitations. This section expressly provides that allotments to non-reservation Indians are to be made in the same ‘quantities and manner’ as allotments to reservation Indians under section 1. Moreover, the legislative purpose to authorize allotments only upon lands which the Secretary determined could provide a home and furnish a livelihood by farming, raising livestock, or both, applies to the General Allotment Act as a whole.
“Section 4 of the General Allotment Act has long been so construed by the Secretary of Interior, and is so construed today. Judicial authority is to the same effect.” (Footnotes omitted.) 414 F.2d at 468.

What the Secretary did in this case was to adopt the reasoning of his subordinate, namely, that equity favored the giving of 80 acres to Edward, who had promised to permit his mother to live on the land, and 80 acres to Irene because of her settlement, despite the fact that there was a specific finding that the land itself could not support an Indian and his family.

The judgment of the District Court is affirmed insofar as it ordered the cancellation of Edward Elmer Mitchell, Jr.’s allotment, and" reversed in all other respects, and the matter remanded to the Secretary for action consistent with this opinion. Each party to bear its own costs.

Judgment affirmed in part and reversed in part.

      . The land is described as the ESWW and S% SEt4 of Section 29 Township 10 North, Range 4 East, Humboldt Meridian, California.

      . The Examiner’s report stated:
      “When, first considering the possibility of awarding the tracts to one of the subject applicants the Bureau requested that the Bureau of Indian Affairs, since they were possibly more intimately acquainted with the domestic affairs of these two people, make any suggestions or recommendations, in relation to the equities involved. They replied as follows: ‘In relation to the equities involved, it has been the opinion of this office that Mrs. Theresa Mitchell or her assignees may be entitled to major equities in any improvements or values, if any, that can be considered apart from the land values involved. If land equities, established through long use are involved, it would appear that members of the (Mitchell) family willing to provide a home for the mother might perhaps warrant strong consideration for that portion of the tract where the improvements were made by Mrs. Mitchell and her husband. Mrs. Pallin, being one of the younger members of the family, has contributed little labor and little or no money to the establishment of the improvements or to the development of the land. Perhaps Mrs. Pallin could be alloted the unimproved portion of the former allotment, with the improved eighty acres being awarded to Edward Elmer Mitchell, Jr., who is apparently willing to grant the mother the right to use the home for the balance of her life time.’ “The above would indicate a strong desire on the part of the local Bureau of Indian Affairs personnel to make amends for the mistake made by the federal government in non-cancellation of the Nancy Burrill allotment, No. 108 some fifty-three years ago with the consequent quasi-occupancy of the land since 1907. There is the implied feeling that Mrs. Mitchell or her descendants have some possessary rights in the improvements and the land that should be recognized. If this be the case, then the attached attestation by Mrs. Mitchell that she preferred her son, Mr. Edward Elmer Mitchell, Jr. receive any rights that she might have in the original allotment should also he recognized and the portion of the lands with the house and other improvements should be awarded to the son, with the remainder of the land being awarded to the daughter.
      “The subject tract is located in an area where such a tract of public domain would be isolated from other public (vacant) domain of any great size, would be extremely difficult to administer, would be highly susceptible to logging trespass and would eventually be disposed of in the normal course of proper management and in placing the land to its highest and best use.
      “In view of the above, it is recommended by the undersigned that: The S% SE14 Section 29, T. 10 N. 2, R. 4W, H.M. be classified as non-irrigable grazing land, that the E% SW% Section 29, T. 10 N. R. 4W, H.M. be classified non-irrigable agricultural and that both be disposed of under the regulations of 43 OPR 176.
      “I further recommend, in view of the existing equities involved, the past use and occupancy of the land, and the desires of the heir to the quasi-legal trustee and original occupant of the land that the subject lands be awarded to the subject applicants as follows:
      S % SE % to Mrs. Irene Mitchell Pallin under Indian Allotment 054321 E y¡ SW y. to Mr. Edward Elmer Mitchell under Indian Allotment 054320.”

      . Irene Mitchell Pallin, Decision of the Secretary of the Interior, A-28766 (September 21, 1962).

      . “§ 345. Actions for allotments
      “All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment Act or under any grant made by Congress, or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper district court of the United States; and said district courts are given jurisdiction to try and determine any action, suit, or proceeding arising within their respective jurisdictions involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty (and in said suit the parties thereto shall be the claimant as plaintiff and the United States as party defendant) ; and the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him, but this provision shall not apply to any lands held August 15, 1894, by either of the Five Civilized Tribes, nor to any of the lands within the Quapaw Indian Agency : Provided, That the right of appeal shall be allowed to either party as in other cases.”

      . “§ 1353. Indian allotments
      “The district courts shall have original jurisdiction of any civil action involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any Act of Congress or treaty.
      “The judgment in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him; but this provision shall not apply to any lands held on or before December 21, 1911, by either of the Five Civilized Tribes, the Osage Nation of Indians, nor to any of the lands within the Quapaw Indian Agency.”

      . See United States v. Fairbanks, 171 F. 337, 338 (8th Cir. 1909), aff’d, 223 U.S. 215, 32 S.Ct. 292, 56 L.Ed. 409 (1912) for a discussion of parties defendant other than the United States.

      . “FINDINGS OF FACT
      # * H¡ H= H¡
      “4. On July 17, 1957, defendant Edward Elmer Mitchell, Jr. was not settled upon, using or occupying said land and has not at any time since said date settled upon, occupied or used said land.
      “5. On July 17, 1957, defendant Edward Elmer Mitchell, Jr. was residing on the Hoopa Valley Indian Reservation in the State of California.
      “6. On July 17, 1957 and at all time thereafter said land has constituted non-irrigable grazing land.
      Hs H* sfc H* *
      “CONCLUSIONS OF LAW
      “1. Defendant Edward Elmer Mitchell, Jr. was not statutorily eligible for allotment of the 160-acre tract of land in the County of Humboldt, State of California, described as the E% SW% and the S% SE% of Section 29, Township 10 North, Range 4 East, Humboldt Meridian, on July 17, 1957 when he made application for allotment of said land to him, nor at any time thereafter, nor is he now eligible. The issuance of a trust patent for said land to defendant Edward Elmer Mitchell, Jr. on July 5, 1960 was contrary to law.
      “2. On July 17, 1957 and at all times thereafter plaintiff Irene Mitchell Pallin was and is statutorily eligible for allotment to her of the 160-tract of land in the County of Humboldt, State of California, described as the E% SW% and the S% SE*4 of Section 29, Township 10 North, Range 4 East, Humboldt Meridian.
      “3. Plaintiff Irene Mitchell Pallin is entitled to a judgment cancelling the trust patent issued to defendant Edward Elmer Mitchell, Jr. on July 5, 1960 for the 80-acre tract of land in the County of Humboldt, State of California, described as the E% SW% of Section 29, Township 10 North, Range 4 East, Humboldt Meridian and directing the issuance to her of a trust patent for said land.”

      . The language of this section has remained unchanged since 1954. See 43 C.F.R. § 2530.0-8 (a) (2) (1972).

      . “§ 336. Allotments to Indians making settlement
      “Where any Indian entitled to allotment under existing laws shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall he entitled, upon application to the local land office for the district in which the lands are located, to have the same allotted to him or her and to his or her children in manner as provided by law for allotments to Indians residing upon reservations, and such allotments to Indians on the public domain as herein provided shall be made in such areas as the President may deem proper, not to exceed, however, forty acres of irrigable land or eighty acres of nonirrigable agricultural land or one hundred sixty acres of nonirrigable grazing land to any one Indian; * * (Emphasis ours.)

      . In fact settlement before classification would be a trespass. Kale v. United States, supra.


source: Caselaw Access Project

author: ROSS, Circuit Judge.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, and Graphic Arts International Union, AFL-CIO-CLC, Intervenor, v. COMMERCIAL LETTER, INC., Respondent.
    No. 73-1247.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 11, 1974.
    Decided April 22, 1974.

      Paul J. Spielberg, Atty., N. L. R. B., Washington, D. C., for petitioner.
    Jerome Kalishman, Clayton, Mo., for respondent.
    Bruce S. Feldacker, St. Louis, Mo., for intervenor.
    Before VOGEL, Senior Circuit Judge, LAY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

This case comes before us upon the application of the National Labor Relations Board (NLRB) for enforcement of a bargaining order issued by it against Commercial Letter, Inc. of St. Louis, Missouri (the company). Once before this unfair labor practice (ULP) case has been before this Court, at which time we refused to enforce the NLRB’s order. N.L.R.B. v. Commercial Letter, Inc., 455 F.2d 109 (8th Cir. 1972). In this prior decision the Court remanded the entire matter to the NLRB so that it could hold hearings on certain objections which had been raised by the company regarding the union certification election which had been held earlier among a unit of twelve of its employees and which had resulted in a narrow victory for the union, the Lithographers and Photoengravers International Union (LPIU). On remand, the NLRB assigned the case to an administrative law judge who held two days of hearings on the company’s objections in June, 1972. The law judge found that the company’s objections had no merit, that the questioned election had been fair and that a bargaining order should issue. The Board issued a supplemental decision in November, 1972, affirming the judge’s decision and again ordering the company to bargain with the union. It is this order which the NLRB seeks to have enforced. We grant enforcement.

In 1973, the NLRB was asked to amend the certification of the LPIU as bargaining representative of the company’s twelve employees to reflect the merger of that union with another union, the International Brotherhood of Bookbinders, to form the Graphic Arts International Union (GAIU) and the later merger of two locals of the GAIU to form Local 505. A hearing was held by a hearing officer on both amendments and the Regional Director then issued the order substituting the certification of Local 505 for Local 252. The Board granted review of this decision, and affirmed the Regional Director’s action.

The company advances three arguments to support its position that enforcement of the bargaining order should be denied. First, it asserts that there was no substantial evidence for the Board’s finding that the representation election had been free of irregularities and was valid. Second, it urges that the hearing and decision on remand should not have been in the ULP case, but rather in the representation case so that the company could decide to bargain if the result went against it without being branded as having committed an unfair labor practice. Third, it argues that it has no duty to bargain with GAIU Local 505 anyway because the mergers and resultant changes in bylaws of the union so changed the nature of the certified representative that the NLRB erred in amending the certification rather than ordering another representation election.

I.

The first two arguments need not and do not detain us for long. The controversy in the ease had its origin in the events leading up to the representation election held in August, 1970. The details are set out in our previous opinion. N.L.R.B. v. Commercial Letter, Inc., supra, 455 F.2d at 111. Basically, the company refuses to bargain because it claims that the election was tainted by certain prejudicial acts of the union. It maintains that the union needlessly subpoenaed ten of the twelve prospective members of the bargaining unit to a hearing held in June, 1970, to determine the appropriate unit. It further argues that the manner in which the union reimbursed these employees for their attendance was deliberately designed to and did influence their votes in the representation election. The union paid the employees for lost wages after the individual employees went to the union hall and filled out vouchers. At least one of these payments was made on the eve of the election.

Originally the Regional Director and the Board dismissed these claimed irregularities without a hearing and certified the union as bargaining representative. When a ULP charge was subsequently filed due to the company’s refusal to bargain, the Board granted a summary judgment against the company, still with no hearing on the election charges having been held. It was this lack of an evidentiary hearing which this Court found objectionable in the earlier opinion. N.L.R.B. v. Commercial Letter, Inc., supra, 455 F.2d at 114.

Now, however, this hearing has been held and the NLRB has determined, based on the record made therein, that the union did not act improperly, that the free choice of the employees was not affected and that the election was valid. The Board’s overall conclusion as to the validity of the election must be sustained as long as it is supported by substantial evidence on the record considered as a whole. National Labor Relations Act § 10(e), 29 U.S.C. § 160(e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). After careful review of the record in this case, particularly the evidence adduced at the hearing after the remand, we are convinced that there is substantial evidence to support the Board’s determination.

Specifically, there is ample evidence to find that the union subpoenaed the relatively large number of employees in the good faith belief that they might be needed to establish the union’s case in the hearing on the appropriate bargaining unit. There is no indication that the company objected at the time. There is also substantial evidence to find, as the Board did, that the union routinely paid all its members and prospective members for time lost on union business by reimbursing their lost wages; that all persons seeking such reimbursement had to go to the union hall to fill out vouchers; and that this procedure was not designed to influence the outcome of elections. Finally, there is adequate evidence to conclude that none of the payments made in this case were designed to nor did they affect the employees’ free choice in the election.

We conclude that the Board’s factual determination is supported by substantial evidence on the record as a whole and must be upheld.

When this case was originally remanded to the NLRB by this Court it was not clearly indicated in the opinion in what setting the evidentiary hearing should be held. N.L.R.B. v. Commercial Letter, Inc., supra, 455 F.2d at 114. The company contends that the ULP proceedings should have been dropped and the hearing held in the context of its original request for review of the certification granted by the Regional Director. This would mean that the company would then have the option, if it lost on the merits, of agreeing to bargain without being found guilty of a ULP. The NLRB takes the position here that the hearing should be in the context of the ULP case and that upon a finding that the election and resultant certification were valid, the company could be found guilty of an unfair labor practice for its failure to bargain from the date of the certification.

We agree with the Board. As already noted, the Court did not specify the nature of proceedings on remand. The major thrust of our earlier decision was that it denied the company due process of law to find it guilty of a ULP without ever giving it a hearing on its allegations regarding the election. We did not, however, state that the company must be given the option of avoiding the ULP charge if it lost on the merits. What we did say was:

At some point in the administrative process the employer is entitled to have an opportunity to present the evidence upon which he relies and to question the evidence upon which the Board relies, and to submit this evidence for consideration by the Board and by this court in proceedings to enforce or set aside the Board’s order.

Id. 455 F.2d at 114. (Emphasis supplied.)

That is precisely what has happened here. The company has had its opportunity to present and rebut evidence. Its evidence has been reviewed by an administrative law judge, the Board, and now this Court. Certainly this company has been given adequate due process.

Finally, there is a sound policy behind forcing employers to litigate their claims regarding contested elections in the setting of a ULP case after they refuse to bargain. Unless they risked being branded as having committed an unfair labor practice, every employer who did not want a union could challenge every election and refuse to bargain no matter how frivolous the claim. He would have nothing to lose, and considerable time to gain.

II.

The company launches a twofold attack on the Board’s action in amending the certification of the bargaining representative to reflect certain mergers which occurred within the union. First, it asserts that the changes caused by these mergers were so great as to call into question the representative status of the union; therefore, the members of the unit should be allowed to approve or disapprove in another representation election. Along this same line, the company argues that its employees in the unit were never given the opportunity to vote on the two mergers which took place and that this fact alone should prevent the NLRB from amending the certification.

Secondly, the company urges that the elections which did occur were not carried out with proper procedural safeguards to insure due process. It points to a number of alleged discrepancies in the handling of the voting ranging from unaccounted for ballots to lack of secrecy. When such safeguards are missing, it is contended, the Board should not amend a certification to reflect the results of such an election.

The facts relating to the mergers are as follows:

On September 4, 1972, a merger was effected between the Lithographers and Photoengravers and the Bookbinders union. This merger was approved by the membership of both unions, including the members of LPIU Local 252, the certified bargaining representative of the twelve employees involved in this case. However, none of the employees of Commercial Letter, Inc. were, as yet, union members, since no collective bargaining agreement had been entered into between the company and the union; and, as nonmembers, they did not vote. The product of this international merger was the Graphic Arts International Union, AFL-CIO-CLC (GAIU). LPIU Local 252 became GAIU Local 252. There appears to have been little or no change in the day-to-day operations of Local 252 as a result of the merger of the two unions.

About June 1, 1973, GAIU Local 252 merged with another GAIU local in St. Louis, Local 209. Again, this merger was approved in an election involving the active members of Local 252; although, as before, the employees in the company’s unit were not given the opportunity to vote since they were not union members. The result of this merger was the formation of GAIU Local 505.

There were also two further elections —one after each merger was completed —-to approve a new set of bylaws first for the new international union and then for the new local. Union members of Local 252 (not including employees of the company), voted in both of these and approved the changes.

Whether or not a merged union should continue to be considered the bargaining representative of a unit of employees depends on a factual determination — is it a continuation of the old union under a new name or is it a substantially different organization? N.L.R. B. v. Hershey Chocolate Corp., 297 F.2d 286, 293 (3rd Cir. 1961); Carpinteria Lemon Association v. N.L.R.B., 240 F.2d 554, 557 (9th Cir. 1956), cert. denied, 354 U.S. 909, 77 S.Ct. 1295, 1 L.Ed.2d 1427 (1957).

Such a factual determination is for the Board to make initially and we are precluded by law from reexamining its decision so long as it is supported by substantial evidence on the record as a whole. National Labor Relations Act, § 10(e), 29 U.S.C. § 160(e); Universal Camera Corp. v. N.L.R.B., supra, 340 U. S. at 487-488, 71 S.Ct. 456; Carpinteria Lemon Association v. N.L.R.B., supra, 240 F.2d at 557.

We are satisfied that there is substantial evidence in this record to support the NLRB’s finding that GAIU Local 505 is, in fact, a continuation of LPIU Local 252 and is not a substantially different organization. The merger at the international level resulted in virtually no change in the operation of Local 252. The same contracts were still being administered by the same personnel in the same way as before the merger. Membership in the local remained the same. It retained its old officers, address, assets, liabilities, books, bank account, equipment, furniture and other properties. GAIU Local 252 adopted the bylaws of the former LPIU Local 252 in toto.

The merger of Local 252 and Local 209 presents a closer question, but there is, clearly, substantial evidence to support the Board’s decision. Local 252 had two thousand members to 209’s three hundred. Only one former officer of 209 is an officer of Local 505. All of the officers of Local 252 retained their offices in Local 505. The same collective bargaining agreements are administered by the same personnel in the same manner as before. Shop stewards are the same. Grievances are handled in the same way. Local 505 absorbed the property, assets and liabilities of both Local 252 and 209. The same individual who organized the company’s employees involved here will be responsible for contract negotiations with the company.

We recognize that there was conflicting evidence before the Board on this factual question. The local’s bylaws were changed to include a probationary membership period which had not been in Local 252’s bylaws although the testimony was that this bylaw change merely reflected the past practice of Local 252. There had been a change in the dues structure of the locals. And the relative financial stake of each member of the old Local 252 in the international and the local had been decreased somewhat by the respective mergers. Nonetheless, we cannot say that the Board abused its discretion in deciding as it did; for, as already noted, there is substantial evidence on the record to support its view as well.

We reject the company’s first argument that all prospective members of a union must be given the chance to vote on internal union reorganization. The Board has specifically held that certain probationary employees who would be forced to join the union at a later date under a union security clause need not be given the right to vote on mergers which do not materially change the relationship between the bargaining representative and the unit employees, espedally if the votes of the probationary employees could not have changed the election result. Hamilton Tool Co., 190 N.L.R.B. No. 114 (1971), 77 L.R.R.M. 1257, 1260; North Electric Co., 165 N. L.R.B. No. 88 (1967), 65 L.R.R.M. 1379, 1380. The conclusion must be that a mere prospective interest in union affairs does not mean that an employee who is not a union member need be given the chance to vote on internal union restructuring, absent a showing, at least, that the votes of those employees could have changed the result of the election. In this case the votes of the twelve company employees could not have changed the result of any of the elections.

Dickey v. N.L.R.B., 217 F.2d 652 (6th Cir. 1954), relied upon heavily by the company is easily distinguishable and simply does not stand for the proposition that all unit employees must be allowed to vote on all union changes, even though not members of the union. Rather, it is a case in which the court disagreed with the Board on the scope of the changes in the union and held that these changes were so substantial as to call into question the representative status of the union. Id. at 655. Such was not the case here.

In Union Carbide and Carbon Corp. v. N.L.R.B., 244 F.2d 672 (6th Cir. 1957), also cited by the company, there is no discussion of whether or not unit employees were allowed to vote' on the merger of their union with another at an international level. All that the court held therein was that the changes in the bargaining representative were not so substantial as to call into question the union’s representative status. Id. at 673.

Retail Clerks International Association v. N.L.R.B., 125 U.S.App.D.C. 389, 373 F.2d 655 (1967), is a case closely analogous to this one. In that case the court found that the merger of certain locals of the same international union did not change the relationship between the units and their bargaining representative. There was no showing that the members of the units had approved of the mergers in an election; but the court, nonetheless, allowed the Board to amend the certification to reflect the mergers. Id. at 657.

NLRB decisions cited by the company are also distinguishable. Factory Services, Inc., 193 N.L.R.B. No. 102 (1971), 78 L.R.R.M. 1344, is a case in which the local to which the unit belonged was going out of existence and being totally absorbed by a much larger local covering a much larger geographic area. This was not a merger in which the same personnel would be administering the same contracts in the same way. The larger local simply sent its personnel in to take over the operation of the smaller one. In these circumstances the Board refused to amend the certification for the unit whose members had not been allowed to vote on these changes. In short, Factory Services was a finding by the Board that the new local was not a continuation of the old. Factory Services, Inc., supra, 78 L.R.R.M. at 1345-46. Rinker Materials Corp., 162 N.L.R.B. No. 156 (1967), 64 L.R.R.M., 1223, presents a similar situation. Again, the thrust of the Board’s decision seems to be based on the degree of change in the nature of the local, although it also faults the failure of the unit employees to vote in the merger election.

In summary, we conclude that there was substantial evidence to support the Board’s conclusion that the new local was a continuation of the old local. Since the changes were, then, primarily in the internal makeup of the union, there is no requirement that prospective members be allowed to vote on them.

The company also contends that the procedures used in conducting the various merger elections in the St. Louis local did not rise to the standards necessary to insure due process and that therefore, these elections and resultant mergers were invalid. We find no merit to this argument.

The relevant testimony and evidence indicate that in all four elections the following procedures were used: An attempt was made to provide every active and inactive union member with a ballot. For those who were actually working in a union shop, ballots along with plain white envelopes were picked up by shop chairmen at the local’s headquarters. These ballots were then distributed by the shop chairmen to union members, who signed for them. The members were free to vote or not to vote. At any rate, they did so in private, placed the marked ballot in the envelope and returned it to the shop chairman, initialing a list to indicate they had returned the ballot. Ballots and envelopes were mailed to all inactive members and all those whose shop chairmen did not get to headquarters to pick up blank ones. Since those receiving ballots were free to not vote and to not return them, many of those distributed were never returned.

The company makes two specific complaints. First, it points to testimony given by an executive vice-president of Local 505 to the effect that it is possible that some voted ballots were not picked up or counted. It notes that the number of unreturned ballots could have changed the outcome of any of the elections. Therefore, it argues, none of the elections should be considered valid. Secondly, it urges that the election procedure did not provide adequate safeguards to insure secrecy.

The Regional Director considered all of the company’s claims and found properly that there was no support in the evidence for any of them. There is no indication that any voted ballots were, in fact, not counted by the canvassing committee of the local. Nor is there any indication that the secrecy of any of the member’s votes was violated.

We point out that the Board has never laid down hard and fast rules regarding the manner in which merger elections must be conducted. In North Electric Co., supra, 65 L.R.R.M. at 1380, relied upon by the company, all that was said was that the vote was “taken by secret ballot.” This was at a meeting attended by only 55 of 238 union members. Id. at 1379 and n. 4. Nowhere in that case does the Board say that this is the required procedure.

In Hamilton Tool Co., supra, 77 L.R. R.M. at 1258, the vote on affiliation was carried out quite formally, with each voter at the special meeting going into an enclosed voting booth to mark his ballot. Again, however, the Board did not mandate this method of election but rather the Board pointed out that such merger elections need not measure up procedurally to the Board’s own standards in representation elections and set the standard for these elections in the following language:

While the procedures used during this union election may not measure up to the standards the Board demands for its own elections, on the facts of this case, we are not willing to find that the procedures used were so lax or so “substantially irregular” as to negate the validity of the election . . . .”

Id. at 1260.

Likewise, in Fall River House, Inc., 198 N.L.R.B. No. 164 (1972), 81 L.R.R. M. 1056, 1056-57, the Board noted that it does not amend certifications to reflect mergers when such change occurred “under circumstances that do not indicate that it reflected a majority view.”

This indicates a flexible position on the part of the Board; one designed to insure that the facts of each particular case are reviewed. The Board is not locked into a rigid requirement of certain specific election procedures. Rather, the NLRB fact finder must weigh the evidence and be satisfied that the election was carried out in such a way as to reflect the majority view.

In the instant case we are satisfied that this was done. A review of the record clearly supports the decision of the Regional Director.

Enforcement of the Board’s bargaining order is granted.

      . The bylaws of Local 505 provide that all candidates for regular membership shall serve a probationary period of twelve months. During this period they are to attend specified educational meetings, and they also are ineligible to receive strike benefits or sacrifice benefits from the International Union Defense Fund. On the other hand, they are not required to contribute to that fund. While a probationary member, an employee may not change employment without the consent of a local officer in charge of employment; and probationary membership is not transferable to another local.

      . We note that none of the employees, the people most intimately concerned with election procedures for the union, has complained about the procedures used here. As we have found, the company illegally refused to bargain. If it had bargained and entered into a contract after the representation election in 1970, the employees would have been required to join the union and could have voted in the merger election. In these circumstances it would be unfair to allow the company to rely on the inability of its employees to vote in the merger election.

      . Executive Vice-President Mantei of Local 505 testified that it was “possible” that some voted ballots had not been counted. However, there is no proof that this actually occurred. There were comments typed on one of the exhibits, which was a tally sheet used in one of the elections, which might have indicated that some voted ballots at specific shops were not picked up and counted. However, the testimony about these typed in comments is confusing and Mantei stated at one point in his testimony that these notations merely meant that the shop chairmen had not picked up blank ballots before the election and that these had been mailed out to the affected members instead.


author: BUTZNER, Circuit Judge: ALBERT V. BRYAN, Senior Circuit

text:
    Homer BUSH, Appellant, v. The UNITED STATES POSTAL SERVICE et al., Appellees.
    No. 73-2040.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 7, 1973.
    Decided April 29, 1974.

      Thomas M. Chattin, Charleston, W. Va., for appellant.
    Jean A. Staudt, Atty., U. S. Dept. of Justice (Irving Jaffe, Acting Asst. Atty. Gen.; Robert E. Kopp, Atty., Dept. of Justice; and John A. Field, III, U. S. Atty., for the Southern District of West Virginia, on brief), for appellees.
    Before BRYAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.
   BUTZNER, Circuit Judge:

Homer Bush appeals from an order of the district court that dismissed his complaint against the United States Postal Service and some of its officers for failure to prosecute. The dismissal was with prejudice, and because such a severe sanction cannot be justified on this record, we reverse.

Bush instituted this action on November 1, 1972. His attorney directed the marshal to serve process on the named defendants and the United States Attorney. On December 11, before a responsive pleading was filed, Bush’s attorney amended the complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. Inexplicably he twice directed the marshal to serve the amended complaint on the postmaster and failed to request that the United States Attorney be served. On one set of the instructions for service on the postmaster, he indicated that two copies of the complaint were for the Attorney General and one copy was for the United States Attorney. The record does not disclose what happened to these copies.

On January 5, 1973 the United States Attorney, unaware of the amended complaint, requested an additional thirty days to plead. His motion was granted, and on February 6 he filed an answer. A month later, he filed a motion to dismiss the original complaint. A hearing on the motion, which had been set for April 9, was continued to April 26 at the request of Bush’s attorney to avoid a scheduling conflict.

When counsel appeared on April 26 for the hearing, the United States Attorney learned for the first time of the amended complaint. He requested and was granted three weeks to file responsive pleadings, including a motion to dismiss. At the conclusion of the hearing, Bush’s attorney inquired whether the court intended to hear the motion “twenty-one days from now.” The district judge responded that he would set a date for the hearing “after the pleading is filed.”

The United States Attorney filed a motion to dismiss on May 15. The same day he gave notice to Bush’s attorney that he would bring the motion on for hearing June 1. Bush’s attorney did not appear on June 1. The court, noting that a return receipt indicated that the notice was received by the attorney’s office on May 16, dismissed the action under Rule 41(b) for failure to prosecute.

Three days later Bush's attorney learned that the action had been dismissed. He then moved to set aside the order of dismissal on the grounds that he did not have actual notice of the June 1 hearing, that his failure to attend the hearing arose out of mistake or excusable neglect, that Bush had never evidenced intent to abandon the prosecution, and that dismissal had been ordered without notice to Bush and without an opportunity to be heard. He supported this motion by his own affidavit and that of his secretary. Without further hearing, the court denied the motion to reconsider.

Recently, reviewing cases that interpret Rule 41(b), we said:

“A district court unquestionably has authority to grant a motion to dismiss for want of prosecution. Fed.R.Civ.P. 41(b). Indeed, as the Supreme Court held in Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the trial court can take such action on its own motion. But courts interpreting the rule uniformly hold that it cannot be automatically or mechanically applied. Against the power to prevent delays must be weighed the sound public policy of deciding eases on their merits. See generally, Wright & Miller, Federal Practice and Procedure: Civil §§ 2369, 2370 (1971). Consequently, dismissal ‘must be tempered by a careful exercise of judicial discretion.’ Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967). While the propriety of dismissal ultimately turns on the facts of each case, criteria for judging whether the discretion of the trial court has been soundly exercised have been stat- . ed frequently. Rightfully, courts are reluctant to punish a client for the behavior of his lawyer. Edsall v. Penn Central Transportation Co., 479 F.2d 33, 35 (6th Cir. 1973). Therefore, in situations where a party is not responsible for the fault of his attorney, dismissal may be invoked only in extreme circumstances. Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970). Indeed, it has been observed that ‘[t]he decided cases, while noting that dismissal is a discretionary matter, have generally permitted it only in the face of a clear record of delay or contumacious conduct by the plaintiff.’ Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967). Appellate courts frequently have found abuse of discretion when trial courts failed to apply sanctions less severe than dismissal. See, e. g., Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir. 1971) ; Flaksa v. Little River Marine Construction Co., 389 F.2d 885, 887 (5th Cir. 1968); Dyotherm Corp. v. Turbo Machine Co., 392 F.2d 146, 148 (3d Cir. 1968). And generally lack of prejudice to the defendant, though not a bar to dismissal, is a factor that must be considered in determining whether the trial court exercised sound discretion. Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir. 1965).” Reizakas v. Loy, 490 F.2d 1132 (4th Cir. 1974).

This record does not depict a history of deliberate delay. Nor does it establish that Bush was responsible for any derelictions of his attorney. The clumsiness attending the instructions for service of the amended complaint did not prejudice the government. Nor, indeed, does the government appear to have been prejudiced by the failure of Bush’s attorney to appear for the June 1 hearing on the motion to dismiss. In short, tested by precedents construing Rule 41(b), the case presents an instance for the imposition of lesser sanctions than the ultimate penalty of dismissal with prejudice.

Accordingly, the judgment is reversed, and the case is remanded with directions that it be reinstated. We, of course, express no opinion about its merits.

ALBERT V. BRYAN, Senior Circuit

Judge (concurring specially):

Save for the peculiar circumstance of this case I would affirm the dismissal for plaintiff’s failure to prosecute. The excepting circumstance is that the hearing day of the motion was not fixed by the court but was simply noticed by adversary counsel. Otherwise, I think, we would be usurping the prerogative and discretion vested in the trial judge by Rule 41(b), as well as by the law generally, to dismiss for want of prosecution. While it was incumbent upon Bush’s attorney either to appear or explain why he could not, his default was not as serious as a disregard of the court’s order.

Had there been an order, I would unhesitatingly say, on the facts of this case, that the instant neglect would justify a dismissal for lack of prosecution. The operation of a court is acutely disrupted by an attorney’s inattention to his case, once it is on the docket. The gravity of it is recognized in the inherent authority of the court, as well as in Rule 41(b), to dismiss sua sponte and without previous notice of its intention. Link v. Wabash Railroad Co., 370 U.S. 626, 629, 632, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Nor need the court first find that the other party was prejudiced, for the law presumes injury. States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9 Cir. 1970).

If not deliberate, the conduct here of the plaintiff’s attorney was so unwarranted as to be equatable with an intentional ignoring of his obligations. The court rarely is directly in touch with the client; it must accept the latter’s representation that the attorney speaks and acts for him. Indeed, it has no other choice. Surely the client cannot complain if the court accepts this assurance, even to his detriment. Advancement of the present case and those following was severely hampered by the dereliction of the attorney.

Determination of whether an attorney’s conduct amounts to a failure to prosecute, I would leave to the trial judge. He is the best arbiter of the incidence of the behavior. The court is entrusted and charged with complete control of its docket and, unless it is allowed free rein to fulfill this responsibility, expedition of litigation cannot be expected. Kenney v. California Tanker Company, 381 F.2d 775, 777 (3 Cir. 1967), cert. denied, 390 U.S. 904, 88 S.Ct. 817, 19 L.Ed.2d 870.

      . The record does not contain proof that the person who signed the receipt was an employee of Bush’s attorney. At oral argument, Bush’s attorney stated that the recipient of the notice was a secretary employed by another attorney who shared office space, but who was not otherwise associated with him.