The single issue raised by this appeal is the validity of the dismissal-with-prejudice sanction of Rule 4 of the Eastern District Plan for the Prompt Disposition of Criminal Cases (the "Plan").1 The government challenges (1) the power of the Judicial Branch to promulgate a rule requiring such a sanction, and (2) the validity of Rule 50(b), F.R.Cr.P.,2 which required the district court to adopt such a plan. It also urges that Rule 50(b) does not authorize the sanction of dismissal with prejudice. Rejecting these arguments, the district court upheld the Rule and dismissed the information in this case on its authority. We affirm.

This is the second time that this case has been before this Court with regard to the application of the Plan. Upon an earlier appeal by defendant Andrew Furey, who had been adjudicated a juvenile delinquent, see 18 U.S.C. § 5031 et seq., we vacated the judgment of conviction originally entered by the Eastern District of New York, holding that under the Plan the information must be dismissed for failure of the government to file a notice of readiness within six months unless the government's neglect to do so was "excusable," which would, under Rule 4, enable the government to avoid dismissal, provided it was ready to proceed to trial within 10 days. We remanded the case to the district court to determine whether the neglect was excusable. United States v. Furey, 500 F.2d 338 (2d Cir. 1974). Upon remand Judge Dooling, after a hearing, concluded that the neglect, while understandable, was not excusable and on August 26, 1974, a judgment was accordingly entered granting Furey's motion to dismiss the information with prejudice for failure to comply with Rule 4, from which the government appeals.

In accordance with the requirements of Rule 50(b) the Eastern District Plan was adopted by the judges of the United States District Court for the Eastern District of New York and approved by the Second Circuit Judicial Council, effective April 1, 1973, as a means of minimizing undue delay and furthering the prompt disposition of criminal cases. Under the Plan these objectives were to be accomplished primarily through the prescription of strict time periods within which criminal cases must be prepared by the government for trial. Like the earlier Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, after which it was modeled, see United States v. Furey, supra, 500 F.2d at 340 n. 1, the Plan did not mandate trial within a certain time period, but instead aimed to achieve its goal by concentrating on "prosecutorial delay as a means of implementing the public interest in disposition of criminal charges with reasonable dispatch," Hilbert v. Dooling, 476 F.2d 355, 357 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S. Ct. 56, 38 L. Ed. 2d 123 (1973). It was substantially the same as all other such plans adopted by the district courts within the Second Circuit, being almost an exact copy of the Model Plan drafted by the Circuit Council of the Second Circuit. Since the events giving rise to the present appeal all occurred prior to the enactment of the Speedy Trial Act of 1974, P.L.No. 93-619 (Jan. 3, 1975), 1974 U. S. Code Congressional and Administrative News, p. 2407, which is not retroactive, the Plan governs the instant proceeding, cf. 1 U.S.C. § 109; United States v. Fiotto, 454 F.2d 252 (2d Cir.), cert. denied, 406 U.S. 918, 92 S. Ct. 1769, 32 L. Ed. 2d 117 (1972). We need not consider the effect of the Speedy Trial Act on the continued applicability of the present Plan.

Rule 4 (like Rule 4 of the Second Circuit Model Plan) is the heart of the scheme, requiring the government to "be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest." If the government should fail to meet this deadline, and if the offenses charged were non-capital, the defendant could obtain a dismissal of "the indictment with prejudice unless the court finds that the government's neglect is excusable, in which event the dismissal shall not be effective if the government is ready to proceed to trial within ten days." The Plan also provides for the exclusion of certain periods from the six-month limit, thus relieving the government of responsibility for delays not within its control.3

Furey first contends that consideration of the validity of Rule 4 is precluded by the limited terms of our earlier remand and by our earlier decision which, he argues, impliedly upheld the Plan and thus constitutes the law of the case. We disagree. Although we directed the district court to consider and rule on certain issues, United States v. Furey,supra, 500 F.2d at 344, we did not limit it to those questions. The district court on remand and this Court on further appeal are free to consider any issue not clearly foreclosed by our previous opinion especially where, as here, the new issue is one that was not presented and was not necessary to the disposition of the earlier appeal. Our previous decision constitutes the law of the case only as to those issues specifically presented to and decided by the Court on that appeal. See, e. g., Cataphote Corp. v. Hudson, 422 F.2d 1290, 1296 (5th Cir. 1970); Salvoni v. Pilson, 86 U.S.App.D.C. 227, 181 F.2d 615, 619, cert. denied, 399 U.S. 981, 70 S. Ct. 1030, 94 L. Ed. 1385 (1950); Connett v. City of Jerseyville, 110 F.2d 1015, 1018 (7th Cir. 1940). Since the validity of Rule 4 does not fall within that category, we are free now to resolve that issue.4

As the government concedes, the federal courts have long had the power to dismiss indictments for unexcusable delay by the government in prosecution. This authority stems from two independent historical sources and its exercise is governed by different standards, depending upon the origin. The primary source is, of course, the Sixth Amendment which guarantees to all persons a speedy trial. That guarantee is intended to prevent prejudice to the "defendant's ability to present an effective defense," United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468 (1971). It also protects the accused from the emotional distress that results from "uncertainties in the prospect of facing public trial or of receiving a sentence longer than, or consecutive to, the one he is presently serving uncertainties that a prompt trial removes," Strunk v. United States, 412 U.S. 434, 439, 93 S. Ct. 2260, 2263, 37 L. Ed. 2d 56 (1973). Once there has been a determination, after consideration of the factors prescribed by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), that a defendant's Sixth Amendment right to a speedy trial has been denied, the remedy invariably is dismissal of the charges or indictment with prejudice, e. g., Strunk v. United States, supra, 412 U.S. at 439-40, 93 S. Ct. 2260; United States v. Provoo, 350 U.S. 857, 76 S. Ct. 101, 100 L. Ed. 761 (per curiam), aff'g Petition of Provoo, 17 F.R.D. 183 (D.Md.1955), which bars any further prosecution.

The federal courts also possess the inherent power, derived from the common law, to dismiss a case for want of prosecution, whether or not there has been a Sixth Amendment violation, e. g., Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S. Ct. 194, 9 L. Ed. 2d 127 (1962); District of Columbia v. Weams, 208 A.2d 617 (D.C.Mun.App.1965); Ex parte Altman, 34 F. Supp. 106 (S.D.Cal.1940); cf. United States v. Cartano, 420 F.2d 362, 363 (1st Cir. 1969), cert. denied,397 U.S. 1054, 90 S. Ct. 1398, 25 L. Ed. 2d 671 (1970); Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312, 314-15 (1967). Restated in Rule 48(b), F.R.Cr.P., see Advisory Committee Notes to Rule 48, 8A Moore's Federal Practice P 48.01, this power is independent of Sixth Amendment considerations, being an outgrowth of the court's supervisory authority with respect to its own jurisdiction. Its exercise has traditionally been within the court's discretion, United States v. Aberson, 419 F.2d 820 (2d Cir.), cert. denied,397 U.S. 1066, 90 S. Ct. 1497, 25 L. Ed. 2d 687 (1970). It has been used, for instance, to relieve the defendant of hardship occasioned by the government's attempts to marshall its case for prosecution after unforeseen delay, Mann v. United States, supra; District of Columbia v. Weams, supra, and to protect the public interest "in the prosecution of those accused of crime without the procrastination of which the processes of law are sometimes guilty," United States v. Mark II Electronics of Louisiana, Inc., 283 F. Supp. 280, 283 (E.D.La.1968), which a prompt trial facilitates by preserving the proof, maximizing the deterrent effect of the prosecution, and minimizing the risk that pending trial the accused may commit other crimes, flee or threaten witnesses, ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, Approved Draft, 1968, 10-11. Dismissal under this power may be without prejudice, e. g., Cohen v. United States, 366 F.2d 363 (9th Cir. 1966), cert. denied, 385 U.S. 1035, 87 S. Ct. 771, 17 L. Ed. 2d 682 (1967); Mann v. United States, supra, or with prejudice, White v. United States, 126 U.S.App.D.C. 309, 377 F.2d 948 (1967); District of Columbia v. Weams, supra; 3 Wright, Federal Practice and Procedure § 814, at 319 (1969).

Cases cited by the government for the proposition that dismissal with prejudice is proper only when the Sixth Amendment is invoked are not only distinguishable but do not support such a rule. In Cohen v. United States, supra, it was never decided whether dismissal with prejudice is permissible. Rather, the main issue faced by the court was whether dismissal for non-prosecution could ever be without prejudice. That issue was decided affirmatively and reindictment was permitted, since the trial judge clearly "contemplated the possibility of a new indictment, because of his specific reference to 'any subsequently returned indictment against the defendant.' " 366 F.2d at 367. The same is true of Mann v. United States, supra. See Hilbert v. Dooling, supra, 476 F.2d at 361. United States v. Mark II Electronics of Louisiana, Inc., supra, superficially appears to support the government's position with the statement that "dismissal of an indictment on nonconstitutional grounds under Rule 48(b) does not preclude reindictment." 283 F. Supp. at 284. It appears to us, however, that the court meant only that the character of the dismissal (with or without prejudice) is within the trial court's discretion, as it cited Mann v. United States, supra, which, as we have noted, held only that dismissal without prejudice is permissible and not that it is the only form of dismissal possible. Finally, United States v. DiStefano, 464 F.2d 845 (2d Cir. 1972); United States v. Chase, 372 F.2d 453 (4th Cir.), cert. denied, 387 U.S. 907, 87 S. Ct. 1688, 18 L. Ed. 2d 626 (1967); and United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959) (en banc), are distinguishable on similar grounds. Hilbert v. Dooling, supra, 476 F.2d at 361-62.

Since it is within the court's inherent power to dismiss a prosecution with prejudice for prosecutorial delay not rising to constitutional dimensions, the district court surely may adopt a rule governing the exercise of that power. The Eastern District Plan thus constitutes no substantive change in the law. It simply regulates the exercise of the court's power over its own jurisdiction. While the Plan was partially intended to further the public interest by ending procedural delays attributable to immense court backlogs undermining public confidence in the courts, see Advisory Committee Notes to Rule 50(b), F.R.Cr.P., Rule 50(b), 18 U.S.C.A. (Supp.1975), we see no reason why the courts cannot exercise their existing supervisory powers to remedy such a crisis of confidence. It is not at all uncommon for litigants to lose their rights irretrievably because of their failure to adhere to court-created rules, e. g., Rules 37(b) and 41(b), F.R.Civ.P., which are designed not to protect rights of litigants but to facilitate the prompt processing of litigation, see Sibbach v. Wilson & Co., 312 U.S. 1, 61 S. Ct. 422, 85 L. Ed. 479 (1941). Thus the dismissal remedy cannot be denominated substantive merely because it can operate to cut off the right of the government to prosecute. Furthermore, the adoption of such a rule is not a matter resting exclusively within Congress' jurisdiction merely because it involves a policy determination that might also have been made by Congress. Regardless whether the rule is labelled "legislative" or "judicial," Congress and the federal courts have concurrent power over matters of practice and procedure, see 28 U.S.C. § 2071.5

The second prong of the government's attack is aimed at the validity of Rule 50(b) itself, which requires the adoption of a plan for the prompt disposition of criminal cases. The contention is that this is not a rule of "pleading, practice and procedure" within the meaning of 18 U.S.C. § 3771,6 but an improper delegation of the Supreme Court's rulemaking power and an unlawful attempt by the district courts to avoid essential Congressional review in the adoption of procedural rules. The government, however, misunderstands the import of Rule 50(b). It in no way delegates the Supreme Court's rulemaking power to the district courts. Nor does it circumvent Congressional review of rules adopted under § 3771. Instead, it merely controls and coordinates within a specific area (prompt disposition of criminal cases) the existing rulemaking power of the district courts, which does not depend on § 3771 but is derived independently from 28 U.S.C. § 2071. That statute empowers the district courts to prescribe rules for the conduct of their business and requires that these rules be consistent with rules promulgated by the Supreme Court. Such plans (including Rule 4) being within the authority of the district courts, the Supreme Court, acting in its supervisory capacity, had the power to direct that they be promulgated in order to "eliminate technicalities and delays in criminal cases."7

When Rule 50(b) was submitted for Congress' consideration (and possible veto) prior to its becoming effective, Congress was clearly confronted with the issue of whether the rule conformed to the requirements of § 3771. That Congress was well aware of its own powers in the matter is attested to by its recent rejection of the Proposed Federal Rules of Evidence, P.L. No. 93-12 (Mar. 30, 1973), 1973 U.S.Code Congressional and Administrative News 11. Yet, despite ample opportunity to invalidate Rule 50(b) as failing to meet the requirements of § 3771, Congress chose to remain eloquently silent, permitting the rule to become effective. In these circumstances the words of the Supreme Court with regard to the Federal Rules of Civil Procedure in Sibbach v. Wilson & Co., supra, 312 U.S. at 15, 61 S. Ct. at 427, are apposite:

"The value of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress. It is frequently . . . employed to make sure that the action under the delegation squares with the Congressional purpose. Evidently the Congress felt the rule was within the ambit of the statute as no effort was made to eliminate it from the proposed body of rules . . . ." (Footnote omitted).

As the government has failed to carry the heavy burden of upsetting a rule adopted pursuant to § 3771, cf. Hanna v. Plumer, 380 U.S. 460, 471, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965), we are persuaded by Congress' implicit approval of Rule 50(b).

The final argument raised against Rule 4 is that Rule 50(b) was not intended to authorize the adoption of the sanction of dismissal with prejudice. The government cites early drafts of Rule 50(b) and the Model Plan circulated by the Administrative Office of the United States Courts, neither of which included this sanction, as evidence of the intent of the rule drafters. The answer is that Rule 50(b) does not give the district courts any powers that they do not already possess either under common law (inherent power to dismiss with prejudice) or under § 2071 (power to make their own rules). It simply mandates that these powers be exercised to achieve a specific goal. It does not tell them which powers to exercise or how to exercise any particular powers. Whether the drafters of Rule 50(b) envisioned the use of dismissal with prejudice as a sanction is not relevant so long as the rule does not preclude the district courts from exercising that power. There is no indication that Rule 50(b) was so intended.

Moreover, we find it difficult to imagine drafting an effective Plan for the Prompt Disposition of Criminal Cases without the sanction of dismissal with prejudice. Such a provision is, in our view, necessary to put teeth into the scheme, see Hilbert v. Dooling, supra, 476 F.2d at 358-59. If the government prosecutor is not faced with complete and absolute discharge of the defendant upon failure to diligently prosecute, he will be less likely to live up to the spirit and letter of the Plan, see ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, Approved Draft, 1968, 40-41. Additionally, the defendant may suffer more from dismissal and reindictment than from one continuing indictment (albeit for a long period). Reindictment may necessitate retaining new counsel, duplication of legal and investigative effort and may occupy more of the defendant's time, all at increased cost in terms of money and psychological strain. In view of these considerations, we do not believe that Rule 50(b) was intended to limit or prevent the use of dismissal with prejudice, if the district court in question found that this sanction was necessary for the effectiveness of its plan.

Our interpretation of Rule 50(b) as not precluding dismissal with prejudice is consistent with the provisions of the recently-enacted Speedy Trial Act of 1974, which set substantially shorter time limits for prosecution of federal crimes than those contained in the Eastern District Plan and imposes severe sanctions, including dismissal with prejudice, if those limits are exceeded.

The judgment of the district court dismissing the information is affirmed.