*1 gas industry, natural vestors though granted al- HARBIN, Jr., Appellant, Robert E. opportunity for a guaran- return”, means “fair are no competition. teed freedom from risk or COLUMBIA, Appellee. DISTRICT OF would, Such in a ease such as assurance No. 18203. this, deprive competitors of the Appeals United States Court of compete, inhibit efficient allocation of re- District of Columbia Circuit. deny sources and ultimate consumers the Argued April 21, 1964. they prices which lowest entitled. July 3, Decided In order to determine whether 1964. P-R is consistent with the wel rate consumers, fare Board of ultimate following: should consider at least the (a) brought The restraint about ability Lynchburg, P-R rate partial requirements customers, other
do business with the lowest-cost source supply, or, put in terms of the exclu dealing cases, sive the extent to which forecloses,
the P-R rate tends fore competitors close, of Columbia from a substantial share shares of a substan markets; (b)
tial market or the indi
vidual and total increase in costs which requirements would be borne full cus rate, tomers in the absence of the P-R if permitted the Commission Columbia to raise its rates to that level which would
provide ; (c) a “fair return” if either substantially restrictive, alternate is ap
whether “fair return” could be propriately reduced, to minimize the bur
den to customers.3 Judge BURGER, (dissenting in part concurring part): I un- am able to ing. has stand- conclude that majority However, since the decides agree standing, I with has disposition their case on the mer- its, apart question from stand- Washing- ing, Judge I would concur Judge Fahy’s opinion ton’s except Part II. In this connection it relevant to note bear an “excessive” sliare of the bur- Lynchburg’s contention that substantial- den. The Commission should also ascer- ly administratively prac- all of Columbia’s sales are to cus- far tain so as it is suppliers tomers that have access to alternative ticable the extent to which supply. sources of competition with Transco, will bo forced to raise their it Were found that the P-R schedule rates, as a result of the business taken were less restrictive and that the restric- compatible Columbia under the P-R schedule. tion was the minimum with a concept return”, reasonable And the Commission should also make- “fair it would still be to determine clear what it moans “fair return” Lynchburg being required whether “fair share.” *2 evening undisputed that on It is the
July 14, 1962, Metropolitan a Police ser- geant assigned Corps” re- to “Canine the report a radio that housebreak- ceived ing progress K at 15th and was Streets, Upon N. arrival at that lo- W. cation that the officers were informed running suspected was housebreaker through alley. sergeant, an The accord- ing fugitive affidavit, to the “who his saw my respond stop. did to not order Tara, police dog, Thereupon I the released fugitive.” may the not arrest We thought police doubt that officer the the dog might fugitive, but he “arrest” the did not do so. dog appel- Instead, upon the the turned lant in the arm and and bit him right leg. ap- part the lower newspaper, employee pellant, of a local step his had been seated outside on place employment. The District’s an- Washington, Koonz, Jr., Joseph leisurely H. swer Mr. admitted “was he E. Ger- C., sitting eating Messrs. Martin whom properly D. with his down and
n el,
E.
and William
Ashcraft
C.
Lee
dog’s
lunch
time.” After the
at-
at the
Washington,
C.,
Jr.,
on
D.
were
O’Neill,
sergeant’s
upon
appellant,
tack
brief,
appellant.
for
states,
“then recovered
affidavit
Corpora-
Barton,
requested
Asst.
Mr. Harbin
Mr. Richard W.
trol of
I
tion
Counsel
I continxxed
remain where he was while
Gray,
H.
Messrs. Chester
with whom
immediately
I
re-
the chase
*.1
Korman,
Counsel,
Corporation
D.
Milton
alley
transported Mr.
turned to the
Counsel,
Corporation
Pi'incipal Asst.
Washington Hospital Cen-
Harbin to the
Pair,
Corporation Coun-
Asst.
B.
Ilubext
ter for treatment.”
sel,
brief,
appellee.
were
alleged
appellant’s complaint had
Washing-
Before Wilbur
Miller,
K.
the owner of the
the District was
Judges.
Danaher, Circuit
ton police dog,
“especially
Tara,
trained to
beings
upon
in and
attack certain human
Judge:
DANAHER,
*
*
was,
streets
July
injuries
therefore,
on
known or should have
This
suffered
was bitten
1962 when he
nature
known
to be
vicious
dog
i-unning
dog
large. The
admitted-
at
complaint
disposition.”
ly belonged
of Columbia
allege
had
officer
read further
by Metropolitan Police
.and
used
was
dog
negligently
control
failed to
performance
In
duties.
on a leash or under
which was not then
judgment
was entered
District Court
dog
when
form
restraint.
the Dis-
appellee
its claim
suddenly
attacking
had “re-
engaged in the
trict
then
of Columbia was
given by”
sponded
the of-
a command
performance
function.
of a
appellant was
ficer
time
at a
disposition
acquiesce
in the
We do not
eating
lawfully
his lunch.
seated and
.appellant’s claim.
housebreaking.
culprit
later convicted
meanwhile arrested the
who was
Other officers
according
complaint,
Again,
(1961)’
ed.”
to the
Thus
“(1)
allegedly
for:
liable
authorizes the Commissioners to settle’
failing
supervision
equity
provide proper
claims whether at law
as-
failing
against
dog; (2)
properly train the
serted
the District of Columbia.
*3
failing
dog;
(3)
take the
to otherwise
whenever
cause
action
of
protection
precautions
of
“(a)
negligence
of
Arises out
gener-
against
and harm
risk
wrongful act,
either of commis-
ally
reasonably anticipated.”
to be
omission,
sion or
of
officer or
employee of the District of Columbia
appellee
admit-
answer had
in its
negligence
whose
acts the
dog,
it had trained
ted that
Columbia,
private
a
in-
if
pre-
Tara,
purpose
detecting,
“for the
dividual,
prima
would be liable
facie'
venting
arresting
that
and
crime”
respond
irrespective-
damages,
by
appellant
that
had
bitten
the
dog.
been
negligence
whether such
occurred
urged
in defense that
It was
per-
or such acts were done in the
Metropolitan
operation
District’s
of the
municipal,
govern-
a
or a
formance of
governmental
Department
Police
is a
mental
said District
function of
by
doctrine
sov-
function controlled
* * -x-_(Emphasis added.)
ereign immunity.
“(b) Arises out of the existence
points
The District
to our
of facts and circumstances which
Columbia,2 where, cit
Urow District
place the claim
within the
ing
general
many
cases,
* *
that
observed
we
principles of law
*.
sovereign immun
abolition of
the rule
[announced in our decided cases.]”
ity
by the Ju
is not to be undertaken
Clearly
ample
the Commissioners had
diciary.
that
Our
2 observed
footnote
authority
compromise
claim
this
an
Congress
adopting
Tort
the Federal
innocent citizen who
an
was attacked
consciously ex
Claims Act in 1947 had
unleashed, unmuzzled
Tara had
provisions.
cluded the District
from its
been commanded to “arrest” a human be-
recently
Even as
1960 the District
as
ing
alley
appellant
in an
where the
Non-Liability
Employee
Columbia
Act3
cededly
be, quietly seated,
had a
only
provided
had
limited modification
eating
dog
his
lunch.
had been
immunity
opera
defense of
as to
released
was out of control.4 The of-
tion of
owned and controlled
vehicles
spoke
biting
ficer
of his actions after the
the District.
We do not doubt that
dog.”
“recovered
control of the
general
prevails.
rule still
“private
Obviously, a
individual” could
But
are other sections of
there
have been liable to the
both be-
the Code which
not to have been
seem
of D.C.Code, 47-2005, supra,
cause
example, D.C.Code,
considered. For
§ the rule at common law.5 And the Dis-
(1961) provides
any person
that
private
trict stands in the shoes of that
owning
dog
“shall be liable in a civil
compromises
individual as to
under sec-
dog
any damage
action
902, supra, irrespective
done
said
per-
tion
injury
formance of a
to the full
inflict-
function.
amount of the
U.S.App.D.C. 350,
351,
running dog
351,
2. 114
bad overtaken the
and then
F.2d
316
352,
previous training,
denied,
826,
swerved. Whatever
its
cert.
375 U.S.
84 S.Ct.
dog
apparent
69, 11
(1963).
then
confu-
L.Ed.2d 59
“turned
sion,”
appellant.
and attacked the seated
(1901),
to 1-920
74
§§ 1-921
Richardson,
U.S.App.
In
Scharfeld v.
76
Capital
Stat. 519. And see
pany
Transit Com
378,
340,
D.C.
133 F.2d
Danaher PER CURIAM. judgment of the District Court is Judge affirmed. to' Chief Bazelon votes America, UNITED STATES of opinion; affirm for reasons stated in his Appellant, Judge Burger to affirm on votes Judge the basis of of District Reyes CONVENTO,Appellee.
Rolando F.Supp. (D.D.C.1962). Hart. 210 *5 No. 17805. Judge. BAZELON, Appeals Court United States Chief District of Columbia Circuit. Appellee Unit- Convento in the enlisted 16, Navy Argued Philippine ed in Jan. States Islands 1964. 1953, continuously served until 1957 July 7, Decided 1964. Diego, he re-enlisted San Cali- fornia, and has continued to serve with- interruption present out until the time. correctly The District Court held was eligible for naturalization the ex- under provisions pediting 1440(a) of 8 U.S.C. § honorably as one who ac- “served * tive-duty in the status naval * * * forces of the United States during period 25, beginning June ending July 1, 1955,” “at or time enlistment induction ** States, [was] the United lawfully admit- whether not he [was] permanent, ted the United States appeals, residence.” The Government must, claiming that both conditions above be satisfied the same enlistment. Easing requirements naturalization country our those who have served Among fully expediting provisions, States no to the United other admitted pres- residence,” specified period period permanent under since residence required exemption im- physical presence from is law means of those ent this yearly migrant quota requirements. qualify 1440. Alien enemies § who under January 100; loyalty Philippine quota as of is without naturalized prefer- waiting (for investigation ordinarily required list all under 8 including non-preference, categories, ence § U.S.C. 1153) 11,184. significant, however, U.S. § elimi- see 8 U.S.C. Most require- State, (1) Dept, No- 1440(a) Bulletin Visa Office nation 1964). (Jan. 15, applicant ment been “law- have