author: DYER, Circuit Judge:

text:
    Steve COLLINS et al., Plaintiffs-Appellants, v. Mitchell WOLFSON, Alfred McCarthy, William D. Pawley, Jack Kassewitz and Garther Reeves, Individually and as members of the Board of Trustees of the Miami-Dade Community College, et al., etc., Defendants-Appellees.
    No. 73-3381.
    United States Court of Appeals, Fifth Circuit.
    Aug. 9, 1974.

      Richard H. Frank, Tampa, Fla., for plaintiffs-appellants.
    Kenneth L. Ryskamp, Miami, Fla., for def endants-appellees.
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.
   DYER, Circuit Judge:

This case, involving disparate claims by seven college instructors against the trustees of Miami-Dade Community College, began with a complaint by four teachers at Miami-Dade whose employment contracts were not renewed for the 1973-74 school year. The instructors alleged that their respective nonrenewals were effected pursuant to an arbitrary and subjective set of criteria employed by the Board of Trustees in ascertaining which teachers would not be rehired upon the school’s implementing a reduction in size in college personnel. In addition to the complaint of subjective criteria, one of the four instructors, Collins, expressly charged that his nonrenewal was retaliatory in nature to punish him for participation in a well-publicized political demonstration at the Democratic National Convention in July 1972. Two instructors, Rivas and Riley, who like Collins were untenured, made no allegations of retributive nonrenewals but simply complained of the arbitrary nature of the Board’s evaluative criteria. The fourth instructor, Hernhuter, essentially tracked the claims of Professors Rivas and Riley, but alleged additionally that he enjoyed Miami-Dade’s genre of tenure, a “continuing contract,” and that this vested property interest was not summarily defeasible by the Board’s couching the termination as a “reduction in force” rather than as a discharge.

In an amended complaint, three additional instructors joined as plaintiffs alleging that, although their employment was not terminated, their constitutional rights were violated by a college official’s depositing in their files an uncomplimentary memorandum charging neglect of duty for their unexcused absence from campus on the morning of February 7, 1973, and inviting their response to these charges.

The district court dismissed the entire suit for failure by all plaintiffs to state a claim for relief under 42 U.S.C.A. § 1983. The court held, first, that Collins had failed to exhaust his administrative remedies; second, that Rivas and Riley, as nontenured faculty members, could be nonrenewed for any reason other than a constitutionally impermissible one; third, that Hernhuter, although tenured, was employed under a contract expressly providing for his termination if his position were discontinued, and that he failed to allege unconstitutional discrimination in connection with his discharge ; and fourth, that the three allegedly maligned instructors had not alleged nonrenewal or termination, or that the memoranda contents were false. We affirm, albeit for different reasons, except as to Hernhuter, whose claims should have withstood the trustees’ motion to dismiss.

COLLINS AND RILEY

At the outset, we dispose of the appeal of Collins and Riley as moot. Both individuals have been reemployed by Miami-Dade pursuant to the college’s policy of granting priority in hiring, when vacancies subsequently occur, to faculty members who were nonrenewed because of a reduction in force. As a result of their restoration, neither appellant continues to have a live controversy with the trustees. See Geduldig v. Aiello, 1974, - U.S. -, 94 S.Ct. 2485, 40 L.Ed.2d - (certain plaintiffs’ subsequent receipt of benefits under California’s disability insurance system held to moot their complaint of unconstitutional policies excluding them from participation). Removing these plaintiffs does not terminate this litigation, of course, as other complainants remain, cf. Richardson v. Ramirez, 1974, - U.S. -, 94 S.Ct. 2655, 40 L.Ed.2d -. Accordingly, we proceed to the contentions of the remaining complainants.

RIVAS

With the elimination of Collins and Riley from the litigation, only Rivas remains as a nonrenewed, nontenured instructor. At bottom, Rivas contends that the trustees, although competent not to renew his contract for any lawful reason whatever, may nonetheless not base nonrenewal on subjective evaluative criteria incapable of objective application. This contention will not withstand analysis, even accepting the questionable proposition that the Board’s criteria are undefinable.

To consider Rivas’ argument in proper perspective, two points must be borne in mind. First, Rivas does not claim that he was dismissed or discharged at all; rather, he alleges that his contract was not renewed due to a reduction in the size of Miami-Dade’s faculty. Second, he nowhere avers that his nonrenewal was retaliatory in nature to punish the exercise of his constitutional rights. Instead, his entire claim reduces to a contention that these allegedly subjective criteria in and of themselves deny his First and Fourteenth Amendment rights.

First, we can find no conceivable First Amendment claim embodied in Rivas’ complaint, for he leaves to mere conjecture the possibility that subjective standards could mask an improperly grounded failure to renew. To bring himself within the purview of section 1983 under this theory, however, Rivas must allege that the trustees’ employing these criteria actually operated in some manner to deprive him of presently enjoyable First Amendment rights, or to punish him for their previous exercise, and this he has utterly failed to do.

Unless his own exercise of First Amendment freedoms was either stymied or punished by the existence or implementation of these standards, no First Amendment violation is stated. See Perry v. Sindermann, supra, -, Keyishian v. Board of Regents, 1967, 385 U.S. 589, 605-606, 87 S.Ct. 675, 17 L.Ed.2d 629; Shelton v. Tucker, 1960, 364 U.S. 479, 484-485, 81 S.Ct. 247, 5 L.Ed.2d 231.

As to his Fourteenth Amendment claims, Rivas readily concedes that his status at Miami-Dade did not rise to the level of a “property” interest in continued employment demanding protection of the Due Process Clause, inasmuch as he lacked tenure in the form of a continuing contract. Board of Regents v. Roth, 1972, 408 U.S. 564, 577-578, 92 S.Ct. 2701, 33 L.Ed.2d 548. Instead, Rivas contends that nonrenewal under these circumstances stigmatized him to such an extent as to abridge his interests in “liberty” protectible under the Fourteenth Amendment. Although all would agree that Rivas has directly suffered from his nonrenewal, we are equally convinced that this result is constitutionally insignificant.

That governmental labeling of an individual with a badge of disgrace constitutes a deprivation of “liberty” cannot be gainsaid. Thus the Supreme Court has indicated that charging an individual with dishonesty or immorality, Board of Regents v. Roth, supra, at 573, 92 S.Ct. 2701, or publicly branding him in essence as anti-socially enslaved to spirits, Wisconsin v. Constantineau, 1971, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515, so infringes liberty interests of the individual as to require significant procedural protections. But these holdings do not aid Rivas, as he would have it, for he has not been degradingly labeled by his nonrenewal. The precise reason for the trustees’ failing to renew Rivas’ contract was not any alleged wrongdoing on his part but simply that someone on the faculty had to go because of a necessary reduction in staff size. In fact, by definition a reduction in force means that someone who otherwise would likely be invited to stay must be relieved. Employing admittedly general criteria or guidelines is thus confined to determining who among qualified instructors is more or less expendable, rather than deciding who on the faculty has so misbehaved as to warrant dismissal for cause. There is simply no “stigma” or “badge of infamy” associated with this sort of nonrenewal.

Indeed, once the need arose to reduce the staff, the Board could employ any device or standard to implement the reduction, such as arbitrarily drawing lots or otherwise leaving the decision to chance, so long as the actual reason for the particular separation was not retribution against the instructor’s constitutionally protected conduct. As we have already seen, Rivas made no allegation that his nonrenewal stemmed from any retaliatory animus harbored by the trustees.

Thus under any view of his constitutional doctrines, Rivas has failed to state a claim cognizable under section 1983.

HERNHUTER

The foregoing discussion concerning Rivas’ constitutional arguments is fully applicable to much of Hernhuter’s contentions, as he too alleges simply that the use of subjective criteria, without more, contravenes the Constitution. But Hernhuter’s claims do arise in a concededly different posture than Rivas’, since Hernhuter was employed under a continuing contract. Consequently, Hernhuter clearly enjoyed a property interest deserving of constitutional protection upon its termination. See Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. 2701.

One incident of constitutional protection against state deprivation of property interests is that, at some point, notice and a hearing appropriate to the particular circumstances must be afforded. Bell v. Burson, 1971, 402 U.S. 535, 542, 91 S.Ct. 1586, 29 L.Ed.2d 90. We conclude that Hernhuter should have been permitted by the court to establish entitlement to such a hearing, the purpose of which would be to assure that his position was in fact “discontinued” within the meaning of the contract and, if he was instead the victim of a “reduction in force,” that the trustees made their decision pursuant to their previously announced criteria. Moreover, in granting the motion to dismiss, the court prematurely concluded that Hernhuter was properly terminated due to discontinuance of his position, for we are unenlightened as to whether “discontinuance of position” within the meaning of his contract means the same thing as “reduction in force” within the ambit of Miami-Dade policy. We therefore conclude that despite the vulnerability of Hernhuter’s arguments with respect to the Board’s criteria per se, he did state a claim under section 1983 sufficient to withstand a motion to dismiss.

Finally, we affirm the district court’s judgment with respect to the three instructors, Wernert, McLeod and Killbride, whose brief adventure away from campus on behalf of collective bargaining was memorialized in unfavorable memoranda from a college administrator. Lodging these memos, without more, in the instructors’ respective files gives rise to no constitutionally based grievance. Importantly, the instructors ■make no allegation that any disciplinary action or sanction has been taken, or that any is even presently threatened against them, or that the presence of these memos will block future promotions or other perquisites of academic life. Moreover, there is no averment that the presence of these documents has in any manner checked their exercise of First Amendment rights. We accordingly fail to discern from the complaint that these instructors have suffered any injury in fact, since they continue in their respective posts and do not allege to have been chilled one iota in exercising First Amendment rights.

No cause of action was stated by these three instructors, and their complaint was therefore properly dismissed.

Affirmed in part; reversed in part; and remanded

      . By so holding, we need not address the issue of Collins’ failure to exhaust administrative remedies, an omission relied upon by the district court in granting the motion to dismiss. But see Steffel v. Thompson, 1974 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505; Preiser v. Rodriquez, 1973, 411 U.S. 475, 492-493, n. 10, 93 S.Ct. 1827, 36 L.Ed.2d 439; McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.

      . On the contrary, of the nonrenewed instructors, only Collins alleged that his non-renewal stemmed in part from official disapproval of his constitutionally protected activities.

      . This necessity of injury stems from the language of section 1983, which provides in pertinent part:
      Every person who, under color of any statute, ordinance, regulation . . . subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . . (Emphasis supplied).

      . The precise nature of Ileralmter’s property interest, as defined by his employment contract, will of course have to be determined by reference to established constitutional principles. See Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15.

      . Nor does the existence of the memoranda, without more, stigmatize or disgrace these instructors so as to deprive them of “liberty.” Since their employment continues with Miami-Dade, these memos are not being circulated to potential employers so as to impair their job prospects. Thus this case is unlike Wellner v. Minnesota State Jr. College Board, 8 Cir. 1973, 487 F.2d 153, where charges of racism were leveled against an instructor who was subsequently nonrenewed by reason of these allegations. In view of the besmirching effect the discharge had on the instructor’s reputation, the court held that before this disgrace could be visited on him, a hearing would have to be provided so that he could attempt to clear his name. It was in light of this degrading nonrenewal that the court ordered the records purged of references to the instructor’s alleged racism.


source: Caselaw Access Project

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, et al., Respondents.
    No. 73-3626.
    United States Court of Appeals, Fifth Circuit.
    Aug. 9, 1974.

      Elliott Moore, Deputy Assoc. Gen. Counsel, Peter M. Bernstein, Atty., N. L. R. B., Washington, D. C., Harold A. Boire, Director, Region 12, N. L. R. B., Tampa, Fla., for petitioner.
    Gerald Schilian, New York City, for respondents.
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.
   DYER, Circuit Judge:

The principal question posed by the Board’s application for enforcement is whether the Union violated section 8(b)(2) and (1)(A) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., by causing the employer to deduct union dues from wages pursuant to dues checkoff authorizations given prior to the severance of employees who were later rehired. Also presented is the subsidiary question whether the Board’s decision to decline referral to arbitration of the issue here presented was a proper exercise of its discretion. We agree with the Board that there, was a violation of the Act by the Union, and that the Board properly exercised its discretion with respect to arbitration. Accordingly, we enforce the Board’s order in full.

The facts are simple and undisputed. The employees in question had each signed dues checkoff authorization cards. Two employees voluntarily terminated their relationship with the Yellow Cab Company, their employer, during a strike and went to work for another taxicab operation. One employee returned to Yellow Cab about four months later, and the other returned after about five months. Another employee voluntarily quit his employment and was rehired ten months later. Two others were discharged by the Company because of “chargeable accidents,” but after some two years had passed they, too, were rehired. In each instance the employees made a clean break with the Company. Upon being rehired, all of the employees lost their seniority. None of the employees executed new authorizations. In spite of this, the Union requested and secured the deduction of union dues from their wages.

The issue to be decided is finely drawn. The Board’s position is that when an individual severs his employment relationship, he also severs any obligation under a signed checkoff authorization, and that the obligation cannot be revived until the individual has signed a new authorization. The fundamental issue, therefore, is whether severance has in fact occurred, and not why. The Union counters that a reasonable revocation procedure is that set forth in section 302 of the Act, reproduced on the checkoff cards signed by the charging parties, and that the Board’s powers in this respect are, or should be, circumscribed by the criminal provisions of that section. Accordingly, the terms of the checkoff cards should control the relationship between the parties.

Basic to the Union’s argument is the fact that employment in the taxicab industry is highly transient in nature. The Union contends that the financial impact on the local unions of “in again-out again” members could be potentially devastating and render the Union impotent in dealing with employees. We are unpersuaded either that such dire consequences will flow from the Board’s rule or that the Union’s position is sound.

It is obvious that the checkoff is nothing more than a method of paying dues. The employment relationship is intrinsically involved, and it would seem to necessarily follow that a termination of that relationship terminates the checkoff authorization, irrespective of any incidental effect on union security. Equally obvious is the fact that all the Union has to do if and when an employee is rehired is to obtain a new authorization.

The Union, however, suggests that the Board’s powers are delimited by the proscriptions of section 302 of the Act. A short answer to this contention was made by the Second Circuit in N. L. R. B. v. Penn Cork & Closures, Inc., 2 Cir. 1967, 376 F.2d 52, 55, cert. denied, 389 U.S. 843, 88 S.Ct. 89, 19 L.Ed.2d 109. There the court said:

The union contends that the Board is without authority to brand as an unfair labor practice any checkoff arrangement not illegal under § 302. The conclusion does not follow. Congress’ determination that only certain checkoff arrangements should give rise to criminal penalties, § 302(d), or be enjoinable, § 302(e), did not immunize all others from scrutiny under § 8 by the agency given responsibility for carrying out the declaration of policy in § 1.

The Union next turns its attack on the Board’s findings as not being supported by substantial evidence on the record as a whole. To support its contention the Union assumes, arguendo, that a complete severance of the employment relationship voids a dues checkoff authorization, and then argues that the record does not support the conclusion that the employees were completely severed. This is accomplished by adopting the “standard” established by the N.L. R.B. in Industrial Towel and Uniform Service, 195 N.L.R.B. 1121, enforcement denied, 6 Cir. 1973, 473 F.2d 1258, a case in which the Board found that the employee in question had no intention of returning and had no reasonable expectancy of reemployment. However, the Board held in Industrial Towel “that when an individual severs his employment relationship, he also severs any obligation under a signed checkoff authorization and that such obligation cannot be revived until the individual has signed a new authorization.” The Sixth Circuit did not reject the Board’s theory. It simply found that since the employee left the company because of illness and later returned to work at a new position commensurate with her reduced physical abilities she was not rehired as a new employee. “Since [the employee] did not sever her employment relationship and since no revocation of the checkoff authorization form was attempted, the authorization continued to be valid. . . .” Id. at 1261.

Under its open-ended interpretation of Industrial Towel, the Union relates the several employees’ motivations for leaving the Company and their subjective notions of their chances for reemployment, and concludes that two of them always considered themselves to be employees of Yellow Cab and in reality had no intention of remaining with the other taxicab company; that the absence of two drivers for four and five months respectively was an intentional subterfuge with the object of prematurely terminating their relationship with the Union; and that the two employees who were fired used the Union to regain their employment. All of this adds up, says the Union, to only one conclusion, that there was no severance of the employment relationship. We disagree.

The Union’s argument and the questions posed in its brief — “What does it mean then, when a driver leaves a particular company and returns sometime later ? Has he really quit ? Is his employment relationship severed? Does he feel that he will never be permitted to return? Should a union have to get a newly signed card every year? Or every six months? What standards shall we apply to determine when an employment hiatus becomes a complete severance of the employment relationship?” — underscore the merit of the Board’s position that in determining whether there has been a permanent severance, the Board will not consider the employee’s motivation for leaving his employment or his subective thoughts concerning his chances for reemployment. If a severance has in fact occurred, that ends the matter. We agree with the Board that “[t]o require the Union and the employer to look into and then evaluate an employee’s motivation for severing his employment would place a burden on them far greater than that envisioned by the Act.” The objective test relieves the parties of the possibility of unfair labor practice sanctions being imposed if their analysis of subjective motivation differs from that of the Board, and defines what otherwise would be an uncertain and litigious area. We therefore reject the Union’s position “that requires a probe of an employee’s subjective motivations . involving an endless and unreliable inquiry.” N. L. R. B. v. Gissel Packing Co., 1969, 395 U.S. 575, 608, 89 S.Ct. 1918, 1937, 23 L.Ed.2d 547.

All agree that the dues checkoff arrangement must be with the employee’s consent, and that an employer who checks off union dues from an employee’s pay and remits the proceeds to the union without the employee’s written authorization violates section 8(a)(2) and (1) of the Act. Chun King Sales, Inc., 126 N.L.R.B. 851 (1960). A checkoff authorization containing language that it is irrevocable is not necessarily controlling. See N. L. R. B. v. Penn Cork & Closures, supra, 376 F.2d at 55-56. Since the fundamental basis for the checkoff is the voluntary consent of an employee, a severance of employment extinguishes the effectiveness of the checkoff, and it is not automatically renewed if the employee subsequently reenters the Company’s employ.

We turn now to the Union’s assertion that the NLRB should have deferred to the arbitration process the matters here in issue since they are arbitrable under the collective bargaining agreement. Collyer Insulated Wire, 192 NLRB 837 (1971). The Union concedes that its interests are different than those of the charging parties but suggests that there is no showing that the Company would not have undertaken to fully litigate their position. We are wholly unpersuaded.

The interests of the employees and the Union are in direct conflict in this case. The interests of Yellow Cab were not affected, and it could not be expected to undertake the protection of the employees, especially in view of its initial acquiescence in the Union’s improper demand that the dues checkoff be resumed without new authorizations when the employees were rehired. The Company was neither under an obligation to nor did it invoke the grievance-arbitration procedure in behalf of the employees.

While the Board may defer to arbitration where a dispute presents issues cognizable under both the Act and the collective bargaining agreement, Associated Press v. N. L. R. B., D.C.Cir. 1974, 492 F.2d 662, the mere presence of an arbitration clause in a bargaining agreement does not foreclose the Board’s jurisdiction and consideration of an unfair labor practice which also constitutes a breach of the agreement. Office and Professional Employees International Union, Local 425 v. N. L. R. B., 1969, 136 U.S.App.D.C. 12, 419 F.2d 314. See also N. L. R. B. v. Strong, 1969, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed.2d 546; Carey v. Westinghouse Electric Corp., 1964, 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320.

We think it is especially desirable, if not required, that the Board make sure that the parties’ rights are safeguarded by refusing to defer to arbitration in those cases in which the interests of the charging party are not in substantial harmony with the party expected to fairly and effectually process the grievance through arbitration proceedings.

Enforced in full.

      . In pertinent part the authorization provides : “This authorization and assignment shall be irrevocable for tire term of the applicable contract between the Union and the Company, or for one year, whichever is the lesser, and shall automatically renew itself for successive yearly or applicable contract periods thereafter, whichever is the lesser, unless I give written notice to the Company and the Union at least 60 days and not more than 75 days before any periodic renewal date of this authorization and assignment of my desire to revoke the same.”

      . Section 302, 29 U.S.O.A. § 186, makes it unlawful for an employer to pay money to a representative of a union, but there is an exception “with respect to money deducted from tlie wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner.”

      . See note 2 supra.

      . The Union’s contention that employee Cercy’s revocation letter was ineffective because it was received on the 76th day rather than the 75th day before the renewal date, computed by including both terminal dates, is without merit. The Board properly followed the rule set forth in 29 C.F.R. § 102.114(a) : “In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default after which the designated period of time begins to run, is not to be included.”
      We also agree with the Board that absent an exception by the Union to the Administrative Law Judge’s findings that employees Miller and Abbott suffered dues checkoffs after their effective revocation of their membership and authorization cards, the Union may not challenge the findings before this Court. N. L. R. B. v. Ochoa Fertilizer Corp., 1961, 368 U.S. 318, 322, 82 S.Ct. 344, 7 L.Ed.2d 312; Nix v. N. L. R. B., 5 Cir. 1969, 418 F.2d 1001, 1009.


author: KRAFT, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Pedro Pablo BARCENAS, Defendant-Appellant.
    No. 73-3575.
    United States Court of Appeals, Fifth Circuit.
    Aug. 5, 1974.

      Charles Farrar, Coconut Grove, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Kerry J. Nahoom, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   KRAFT, District Judge:

This appeal by Pedro Pablo Barcenas (Barcenas) stems from his conviction, together with Chambless and Suarez, of possession of cocaine with intent to distribute and of distribution of cocaine on July 31, 1972, upon the first two counts of a four-count indictment. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. The last two counts charged only Chambless and one Chiong with like offenses on September 6, 1972.

Chambless entered a guilty plea during the trial. The jury found Barcenas and Suarez guilty on Counts 1 and 2 and Chiong guilty on Counts 8 and 4. Suarez and Chiong filed timely appeals, which resulted in affirmance of the conviction of Suarez and reversal of Chiong’s conviction, because of insufficient evidence. United States v. Suarez, 5 Cir. 1973, 487 F.2d 236.

Barcenas’ appeal was separately heard by this Court, long after the disposition of the appeals of Suarez and Chiong, because Barcenas, through no fault of his, filed his appeal much later after obtaining the requisite permission.

Appellant’s first contention is that he was denied a fair trial, because the government improperly introduced, as appellant views it, evidence of his prior conviction for another crime. Appellant’s concept of the situation is not wholly accurate. The prime question is whether what did happen, as herein detailed, was plain error under F.R.Cr.P. 52(b).

A full review of the trial record reveals that there was ample, though not overwhelming, evidence to support Barcenas’ conviction. Essentially, the government’s case rested on the testimony of special agent Forteza of the Bureau of Narcotics and Dangerous Drugs. Since Barcenas did not testify, his entire defense was based on the testimony of his co-defendant, Chambless, who, admitting his own guilt, absolved Barcenas as his innocent dinner guest. Hence, the pivotal issue was one of credibility between Forteza and Chambless.

In the exculpatory phase of his direct examination Chambless testified that: he had invited Barcenas to dinner two or three days before July 31; he had known Barcenas eight or ten years; Barcenas arrived at Chambless’ home with Suarez, while Forteza was there; Chambless did not know Suarez, whom Barcenas brought along for the ride; Barcenas ate, while Suarez watched television; Barcenas was not in the bedroom during the drug sale by Chambless to Forteza; Barcenas had not given him any folder or the like with cocaine in it and, in this respect, Forteza was not telling the truth; Barcenas had nothing to do with the possession or the distribution of the cocaine.

In the prosecutrix’ effort to undermine the credibility of Chambless, the following transpired in cross-examination:

“Q. You said that you had invited Barcenas for dinner ?
A. Yes.
Q. And you had known him for — did you say eight or ten years ?
A. Yes.
Q. Do you know where he was in 1965?”

To the last question, instead of responding “Yes” or “No”, the witness replied:

“A. I think he was in jail.
Q. Do you know for what reason? A. I don’t know.
Q. Did you see him any time after 1965, up until this time when you invited him for dinner ?
A. No.
Q. So you did not see Mr. Barcenas from 1965 until you invited him for dinner that night?
A. I had seen him a few days prior to that day. So, I invited him to come to my house because he had just returned from Los Angeles.”

Barcenas’ appellate counsel, who did not represent him at the trial, argues, with unwarranted vigor, that the prosecutrix knew Barcenas was in jail in 1965 and that she “deliberately, with intent to prejudice” Barcenas, elicited that fact. Chambless’ direct testimony that he knew Barcenas eight or ten years and the implication, that Barcenas was a close friend invited to dinner, entitled the prosecutrix, by proper questions, to elicit, if she could, information which would cast real doubt on the purported closeness of the relationship, by showing that Chambless had not, in fact, seen Barcenas during the period of more than seven years immediately preceding the alleged invitation to dinner. Contrary to the emphatic assertion of appellant’s present counsel, the prosecutrix’ awareness of Barcenas’ earlier imprisonment may just as well have led her to conclude that, despite his testimony and its implication, Chambless had never seen Barcenas between 1965 and July, 1972 and, so, led to a permissible effort to establish that fact by cross-examination. Absent contrary evidence, the prosecutrix is presumed as innocent of intentional impropriety, as was Barcenas when charged with crime.

The prosecutrix’ question was not improper. The non-responsive answer of Chambless, Barcenas’ witness, created the problem. That answer was not an affirmative statement that Barcenas was in jail, but rather “I think he was in jail.”

It is noteworthy that, to the end of that part of the interrogation, quoted supra, Barcenas’ trial counsel interposed no objection, voiced no motion to strike, requested no cautionary instruction nor mistrial. Following Chambless’ last quoted answer, the prosecutrix continued:

“Q. What was he doing in Los Angeles?”

At that juncture, appellant’s trial counsel stated:

“Your Honor, I am going to object and if I may approach the Bench just briefly?”

The trial judge assented and the record then discloses an unreported Bench conference, outside the hearing of the jury and the court reporter. Apparently, whatever transpired there satisfied Barcenas’ trial counsel and removed any concern he may have had, since proceedings were then resumed without objection, motion, request or statement by appellant’s counsel, and a different and unobjectionable question was asked by the prosecutrix. Barcenas filed no motion for new trial. If the prejudice flowing from the occurrence was as grave as Barcenas’ appellate counsel now asserts, he is, indeed, second-guessing Barcenas’ trial counsel upon the typewritten record long after the event.

This Court has heretofore stated: “An appellate court will not review actions of omission or commission by a trial court unless the defendant makes known to the court the action which he desires the court to take or his objection to the action taken by the court and the grounds therefor.” United States v. Thomas, 5 Cir. 1970, 429 F.2d 407, 408. Where the trial court has accorded all the relief requested or has had no request for relief, a reversal can only be based on appropriate application of the plain error rule. We, therefore, must determine whether the trial judge’s failure to order a mistrial sua sponte, as a consequence of Chambless’ answer, was “plain error affecting substantial rights” of Barcenas.

In determining plain error: “Each case stands upon its own peculiar facts and circumstances as to whether a defendant has been afforded a fair trial. * * * Whenever this Court is of the opinion that a defendant has been denied a fair trial, it must set aside the judgment of conviction.” Benham v. United States, 5 Cir. 1954, 215 F.2d 472, 474; see, also Helms v. United States, 5 Cir. 1964, 340 F.2d 15, 19.

Generally, evidence of prior crimes is inadmissible for the purpose of showing either the defendant’s criminal character or his propensity to commit crime, though such evidence is admissible, if relevant, for other' purposes. United States v. Abshire, 5 Cir. 1972, 471 F.2d 116. In the ease sub judice evidence that Barcenas had committed some earlier crime would have been inadmissible at the time of Chambless’ answer. However, Chambless’ non-responsive answer, “I think he was in jail” was not an affirmative statement that Barcenas had committed a crime, had been convicted of or charged with a crime or was in jail. While use of such words as “jail”, “prison”, “arrest” are, generally, to be avoided, where irrelevant, the mere utterance of the word does not, without regard to context or circumstance, constitute reversible error per se. One may be in jail as a convicted criminal, an accused awaiting trial, a material witness or even, in this day and age, in protective custody. One is not necessarily in jail because another “thinks” he is.

A careful review of many cases, including Odom v. United States, supra, (conviction reversed), Leonard v. United States, 5 Cir. 1967, 386 F.2d 423, (conviction affirmed), United States v. Johnson, 5 Cir. (decided February 7, 1974), 489 F.2d 139, (conviction affirmed), United States v. Harbolt, 5 Cir. (decided March 14, 1974), 491 F.2d 78, (conviction affirmed) impels the conclusion that the case sub judice falls between Harbolt, supra, and Leonard, supra.

We entertain no doubt that Barcenas suffered no prejudice and are satisfied, from the entire record, that he was afforded a fair trial, devoid of plain error. In reaching that conclusion we considered that: the prosecutrix' question was not so framed as to elicit the answer given; Chambless’ non-responsive answer was not an affirmative statement that Barcenas was in jail; Barcenas’ trial counsel quite apparently felt that no prejudice had occurred, but might occur if the Los Angeles question was pursued, as demonstrated by a complete omission to take any responsive action, except the Bench conference; the jury returned a verdict of guilty against Suarez, who, likewise, was involved by Forteza’s testimony and absolved by Chambless’ testimony, but against whom the evidence was not as strong and concerning whom no statement as “I think he was in jail” was made.

The second ground for reversal now pressed by appellant, but never raised in the court below, is that the verdict was indefinite and ambiguous, because the jury was not given a “verdict form” which provided for a finding on the lesser included offense of simple possession of cocaine under 21 U.S.C. § 844(a).

Upon request the trial judge charged the jury that, if the jury found that the defendants did possess the cocaine, but did not intend to distribute it, the jury, on Count 1, might find them guilty of the lesser included offense of simple possession. The jury’s written verdict found Barcenas guilty on Count 1 and on Count 2 “as charged in the indictment”. Its oral verdict was identical. The jury was polled and the verdict was again affirmed. No request for clarification of the verdict on Count 1 was made upon its rendition or when the jury was polled, nor was the question of ambiguity raised by motion for new trial or at the time of sentence.

Again, as in consideration of Barcenas’ first contention and for -the same reasons, we must apply the plain error rule.

Appellant cites Glenn v. United States, 1969, 137 U.S.App.D.C. 120, 420 F.2d 1323 as factually identical and, so, highly persuasive. To the contrary, we opine that that case is readily distinguishable. It involved a one-count indictment charging “housebreaking”, an offense which included a lesser crime of “unlawful entry”. The jury was instructed on the elements of both offenses and returned a one-word verdict of “guilty”. In the case sub judice Barcenas was named in two counts, both of which related to the same cocaine on the same day and only the first of which included a lesser offense. The verdict on each count was not just “guilty”, but “guilty as charged in the indictment”. Count 1 specifically charged Barcenas with possession of the cocaine with intent to distribute and Count 2 with distribution.

The evidence against Barcenas, which the jury accepted, was that he participated in the distribution, by Chambless, of the same cocaine which Barcenas had brought and delivered to Chambless only a moment or so before Chambless sold it to special agent Forteza. The evidence on behalf of Barcenas, who did not testify, was that he did not possess or participate in the distribution of the cocaine, but was an innocent, unknowing bystander, who had just arrived at Chambless’ home as an invited dinner guest.

Absent a determination to render an inconsistent and perverse verdict, it is impossible to perceive how this jury, under the evidence before it, could have adjudged Barcenas guilty of distribution and, simultaneously, have found that he possessed, without intent to distribute, the same cocaine, which he had just delivered to Chambless. The verdict on Count 1 — “guilty as charged in the indictment” — was free from ambiguity and the omission to furnish a “verdict form” to provide for a possible finding on the lesser included offense was not plain error, since the finding of guilt of the greater offense eliminated any necessity for consideration of the lesser.

After full review we find no merit in appellant’s final contention that the prosecutrix’ closing argument was improper and prejudicial.

The judgments are affirmed.

      . Cert. denied March 18, 1974; 415 U.S. 981, 94 S.Ct. 1572, 39 L.Ed.2d 878.

      . See opinion of Bell, J., concurring specially, in Odom v. United States, 5 Cir. 1967, 377 F.2d 853, 860 for good analysis of procedure.


author: PHILLIPS, Chief Judge.

text:
    WESTWOOD CHEMICAL, INC., Plaintiff-Appellant, v. MOLDED FIBER GLASS BODY COMPANY, Defendant-Appellee.
    No. 74-1016.
    United States Court of Appeals, Sixth Circuit.
    Argued April 11, 1974.
    Decided June 27, 1974.
    As Amended July 9, 1974.

      Marshal I. Nurenburg, Cleveland, Ohio, for plaintiff-appellant; T. A. TeGrotenhuis, Cleveland, Ohio, on brief.
    William H. Webb, Pittsburgh, Pa., for defendant-appellee; John M. Webb, Pittsburgh, Pa., and Warren Daane, Cleveland, Ohio, on brief.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.
   PHILLIPS, Chief Judge.

This is an appeal from the decision of the District Court wherein Westwood Chemical, Inc. was held to be estopped from asserting the validity of claims 5, 10, 12 and 13 of United States Patent No. 2,742,378. We affirm.

For an extensive discussion of the facts of this case reference is made to the opinion of District Judge William K. Thomas, reported at 181 U.S.P.Q. 134 (N.D. Ohio 1973). A summary of the pertinent facts will be stated in this opinion to' the extent necessary to dispose of the issues presented on appeal.

This action began in 1963 when West-wood sued the Molded Fiber Glass Body Co. (MFG) for infringement of United States Patent No. 2,742,378, issued April 17, 1956, which relates to “Fillers Having Vinyl Siloxane Groups Bonded to the Surface Thereof and Copolymers Thereof with Ethylenically Unsaturated Polymerizable Monomers.” In subsequent years Westwood sued a number of other companies on the patent, including the Owens-Corning Fiberglas Corporation. It was agreed that the Owens-Corning suit would be the first to be tried and that the result in that case would be binding on the parties. MFG, however, did not enter into that stipulation.

The District Court declared the ’378 patent invalid, under 35 U.S.C. §§ 102 (a, f, g) and 103, in Westwood Chemical, Inc. v. Owens-Corning Fiberglas Corp., 317 F.Supp. 201 (N.D.Ohio 1970). On appeal, this court modified and affirmed the trial court’s holding of invalidity, limiting it to the claims that were actually in issue, i. e., claims 1, 3, 4, 6-8, 11, 14, 15-19, 21, 23-26 and 28. 445 F.2d 911 (6th Cir. 1971). Our affirmance was based on the grounds of obviousness, 35 U.S.C. § 103. Westwood’s petitions for rehearing before this court and for certiorari were denied. 405 U.S. 917, 92 S.Ct. 941, 30 L.Ed.2d 786 (1972).

Thereafter, this court affirmed the District Court’s dismissal, pursuant to the stipulation, of the actions against certain other parties. Westwood Chemical, Inc. v. Johns-Manville Fiber Glass, Inc., 477 F.2d 1160 (6th Cir. 1973).

MTG, relying on its position as a customer of the defendants in the Owens-Corning and Johns-Manville suits, and on Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), amended its answer to assert the defenses of res judicata and co-lateral estoppel on the basis of this court’s decision in the Owens-Corning case.

Judge Thomas denied the res judicata defense and MFG has not appealed from that part of the court’s decision. With respect to collateral estoppel, Judge Thomas conducted a full trial on the merits and held that the four claims in issue were for the same invention involved in Owens-Corning and presented the same questions decided in that litigation. He further held that Westwood had had a full and fair opportunity to litigate the validity of its patent in that suit. Thus, MFG was allowed to assert the judgment in Owens-Corning as an estoppel in this suit.

This appeal raises the following issues: 1) Is the defense of collateral estoppel available to bar the assertion of the validity of unadjudicated claims when such claims present the same questions that were decided in the litigation of the adjudicated claims? 2) Do the claims in issue present the same questions that were decided in the prior suit? 3) Did Westwood have a full and fair opportunity to litigate the validity of its patent in the prior suit.

I.

As is necessary to the application of collateral estoppel pursuant to Blonder-Tongue, supra, resort first must be had to the decision itself. On its face Blonder-Tongue does not limit the defense to adjudicated claims, but rather speaks in terms of “issues” and “questions”. The Court stated:

“Moreover, we do not suggest, without legislative guidance, that a plea of estoppel by an infringement or royalty suit defendant must automatically be accepted once the defendant in support of his plea identifies the issue in suit as the identical question finally decided against the patentee or one of his privies in previous litigation. Rather, the patentee-plaintiff must be permitted to demonstrate, if he can, that he did not have ‘a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time.’ ” (Emphasis added.) (Footnote omitted.) 402 U.S. at 332-333.

Since collateral estoppel is a defense grounded in public policy and notions of judicial administration, we see no reason to limit its application solely to adjudicated claims. Indeed, in a comprehensive discourse on the subject, the Supreme Court did not so limit it.

Thus, we hold that, subject to the Blonder-Tongue exceptions, collateral estoppel is available as a defense when unadjudicated claims present questions of fact identical to the questions presented in the adjudicated claims; when each unadjudicated claim merely restates, without significant difference, an adjudicated claim; and when none of the unadjudicated claims defines an invention separate and apart from the invention defined in the adjudicated claims.

Westwood contends that such a holding is inconsistent with 35 U.S.C. § 282 which provides that “each claim of a patent . . . shall be presumed valid independently of the validity of other claims.” We see no inconsistency. To the extent the statute requires all claims to be considered as separate entities, our holding is in accord. Westwood had a full trial on the merits of the claim identity issue, and the decision of Judge Thomas shows that the four claims were each considered separately. To the extent that the statute allocates the burden of proof of invalidity and places it squarely on the shoulders of the defendant, so too must the party asserting collateral estoppel establish claim identity. To the extent that § 282 quantifies the defendant’s burden of proof, the presumption is overcome upon a finding that the unadjudicated claims are identical with claims that have been adjudicated invalid. Just as the presumption of validity has been rebutted when claims are held invalid, so it is also when unadjudicated claims are identical to invalid claims.

Westwood also places reliance on Bourns, Inc. v. Allen-Bradley Co., 480 F.2d 123 (7th Cir.), cert. denied, 414 U.S. 1094, 94 S.Ct. 726, 38 L.Ed.2d 551 (1973), wherein the court limited collateral estoppel to claims that had been adjudicated in the prior action. We do not find Bourns persuasive. In that case the trial court had allowed a plea of estoppel because it concluded that the prior action had resulted in the invalidation of all claims of a patent. The United States Court of Appeals for the Seventh Circuit reversed, noting that the prior action had only invalidated certain claims and should not operate as an estoppel as to all claims. Bourns was decided on a motion for summary judgment and claim identity was not an issue in the case. To the extent Bourns may be relevant to this case, it was eroded in Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 484 F.2d 905, 908-909 (7th Cir. 1973). See also, Technograph Printed Circuits, Ltd. v. Martin-Marietta Corp., 474 F.2d 798, 801-802 (4th Cir.), cert. denied, 414 U.S. 880, 94 S.Ct. 68, 38 L.Ed.2d 125 (1973).

II.

Judge Thomas, after reviewing all the evidence relevant to collateral estoppel, stated:

“Upon all the evidence it is determined and concluded that by a preponderance of all the evidence defendant Molded Fiber Glass Company has shown that unadjudicated claims 5, 10, 12 and 13 present questions of fact identical to the questions presented in the adjudicated claims; that each merely restates, without significant language differences, an adjudicated claim; and that none of these four unadjudicated claims defines an invention separate and apart from the inventions defined in the adjudicated claims.” 181 U.S.P.Q. at 147.

Upon consideration of the briefs, the oral arguments of counsel and the record, we affirm Judge Thomas' holding of claim identity for the reasons set forth in his opinion, 181 U.S.P.Q. at 141-48.

Central to Judge Thomas’ finding of claim identity was his interpretation of the claims in light of the specification. Relying on Noll v. O. M. Scott & Sons Co., 467 F.2d 295, 298-299 (6th Cir. 1972), cert. denied, 411 U.S. 965, 93 S.Ct. 2143, 36 L.Ed.2d 685 (1973), West-wood contends that it was error to narrow the scope of the claims in light of the specification. In Noll we stated:

“It is often stated that the claims define the invention and that limitations in the specification will not be incorporated into unambiguous claims to uphold their validity. See Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 336 U.S. 271, 277, 69 S.Ct. 535, 93 L.Ed. 672 (1949) (Graver I). Yet it is also stated ‘that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.’ United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 713, 15 L.Ed.2d 572 (1966). We have considered the numerous cases on this issue and find the limitation-construction distinction to be unworkable. For example, in Graver I, the Court refused to ‘limit’ claims broadly reciting metallic silicates to those operative metallic silicates set forth in the specification, while in Adams, claims omitting any recitation of an electrolyte were ‘construed’ to require a water electrolyte. See also Sun Ray Gas Corp. v. Bellows—Claude Neon Co., 49 F.2d 886, 888-889 (6th Cir. 1931). Further, even if we were to adopt this distinction we are of the view that the present case is indistinguishable from Graver I.
“The trustees further urge that the rule applied by the District Court is logically inconsistent with the doctrine of equivalents. Under that doctrine, subject matter not literally embraced by the claim language will be held to be an infringement if it ‘do[es] the same work in substantially the same way, and accomplish [es] substantially the same result.’ Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950) (Graver II). The patent specification in the Graver cases described welding fluxes containing a major portion of one of nine specific metallic silicates, including manganese silicate. Some claims were directed specifically to alkaline earth metallic silicates, others generically to metallic silicates. The former were held valid and the latter invalid for overclaiming, the evidence showing that some metallic silicates not named in the specification were inoperative as fluxes. See Linde Air Prod. Co. v. Graver Tank & Mfg. Co., 167 F.2d 531 (7th Cir. 1948). As noted above, the holding of invalidity of the generic claims was upheld in Graver I. The infringer used a flux containing manganese silicate, not an alkaline earth metallic silicate. It was held that the valid specific claims were infringed by application of the doctrine of equivalents on the ground that manganese silicate was equivalent to an alkaline earth metallic silicate. This ruling was upheld in Graver II. Thus as we read the two Graver decisions, overly broad claims may not be narrowed to the limitations set forth in the specification, but narrow claims may be broad-ended to embrace ‘equivalent’ subject matter.” (Emphasis added.) Id.

Westwood has seized upon the italicized language, supra, in support of its argument, without giving consideration to the language of Graver I. In Graver I the Court specifically noted that resort to the specification was justified when the claims were ambiguous. 336 U.S. at 277. There is no question that the claims which Judge Thomas interpreted in light of the specification, i. e. adjudicated claims 3, 7, 11 and 15, were ambiguous. The specification was relied upon to construe the claims and to provide specific definitions for certain claim terminology.

The logical extension of Westwood’s argument in effect would give these claims a construction broader than the teachings of the specification. This practice was specifically prohibited in Tillotson Mfg. Co. v. Textron, Inc., Homelite, 337 F.2d 833 (6th Cir. 1964), wherein we stated:

“[A claim] must be read in the light of the specification and drawings. It may not be given a construction broader than the teachings of the patent.” 337 F.2d at 838.

Westwood has tried to distinguish this language, arguing that the proper practice would be to declare the claims invalid for undue breadth, rather than to narrow them. This is true in a Graver I situation where the claims are unambiguous and, simply, overbroad. Where, however, the claims are ambiguous, resort must be had to the specification to aid in their interpretation, even where the result is a narrowing of their scope. Indeed, in United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966), the Supreme Court narrowed the scope of the claims by resorting to the specification to supply a missing element.

III.

Blonder-Tongue, supra, requires the allowance of an estoppel plea unless the patentee was denied a full and fair opportunity to litigate -the validity of the patent in the prior suit. 402 U.S. at 333. The patentee must be presented with a fair opportunity, procedurally, evidentially and substantively. Id.

Westwood relies upon the substantive aspects of the prior suit, contending that the court wholly failed to grasp the technical subject matter. Indeed, its claim that it was denied procedural and evidentiary fairness was quite properly rejected by Judge Thomas. That claim was fully adjudicated by this court in the Owens-Coming case, supra, 445 F.2d at 918, and was one of the principal grounds in Westwood’s petition for rehearing before this court and in its petition for certiorari.

With respect to substantive fairness, Westwood contends that the court was misled by “false testimony” given by a principal witness in the Owens-Coming suit. Reliance is placed on an affidavit by a Dr. Serafini who characterized much of the testimony as “false and misleading.” However, much of this affidavit was discredited by another affidavit of Dr. Serafini wherein he stated that the terms “false and misleading” originated with the inventor of the ’378 patent. Dr. Serafini also stated that the testimony was such that chemists might disagree with one another.

Upon a thorough consideration of the briefs, oral arguments of counsel and the record, we hold that Westwood has failed in its burden of showing that it was denied a substantively fair trial and adopt the reasons set forth by Judge Thomas, 181 U.S.P.Q. at 148-157.

Affirmed.


author: McENTEE, Circuit Judge.

text:
    Anthony SOUZA et al., Plaintiffs, Appellees, v. Anthony P. TRAVISONO et al., Defendants, Appellants.
    No. 74-1041.
    United States Court of Appeals, First Circuit.
    Argued May 8, 1974.
    Decided June 26, 1974.
    W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellants.
    Ralph J. Gonnella, Providence, R. I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R. I., Max D. Stern, Burnham, Stern & Shapiro, Boston, Mass., Stanley Bass, New York City, Richard Boren, and Abedon, Michaelson, Stanzler & Biener, Providence, R. I., were on brief, for appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

This is an appeal from a judgment of the district court holding that, as a matter of constitutional right under the sixth and fourteenth amendments, appellee inmates of the Rhode Island Adult Correctional Institutions (A.C.I.) must be permitted reasonable access to law student assistants of attorneys engaged in the preparation, handling and disposition of the inmates’ legal problems. In their complaint, the inmates had sought to enjoin as unconstitutional an unwritten administrative policy recently promulgated by A.C.I. Warden James W. Mullen, which assertedly had the effect of denying to A.C.I. inmates access to law students serving as agents of the Inmate Legal Assistance Program (I.L. A.P.). At the time that suit was commenced, the I.L.A.P. operated as a federally funded legal services organization based at the A.C.I. and staffed by two full-time attorneys.

Though the question has not been previously considered, either by op-' posing counsel or by the district court in the proceedings below, this court has necessarily been concerned with the potential impact of 28 U.S.C. § 2281 (1970) upon the proper exercise of district court jurisdiction to pass upon the merits of this matter. However, after full consideration of both the essential purposes underlying § 2281 and of the particular and somewhat unique facts of the instant case, we have concluded that a three-judge court is not warranted under the circumstances here presented.

By its terms, § 2281 compels the convening of a three-judge district court whenever an “interlocutory or permanent injunction [is sought on constitutional grounds] restraining the enforcement, operation or execution of any State statute . . . or of an order made by an administrative board or commission acting under State statutes.” However, because the fundamental Congressional purpose behind § 2281 was “to prevent a single federal judge from paralyzing a state regulatory scheme and to provide procedural protection against the infliction of ‘improvident statewide doom’ by a federal court” upon significant state policies, Gay v. Board of Registration Commissioners, 466 F.2d 879, 882 (6th Cir. 1972); see also Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Swift & Co. v. Wickham, 382 U.S. 111, 119, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), the scope of that section has generally been extended to cover injunctions sought against formal administrative practices which embody important statewide considerations, and this may well include, in an appropriate case, prison regulations and policies. See, e. g., Clutchette v. Procunier, 497 F.2d 809, (9th Cir. 1974); Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973); McCarty v. Woodson, 465 F.2d 822 (10th Cir. 1972). Nonetheless, since, in enacting § 2281, Congress was concerned strictly about the potentially unwarranted invalidation of a statewide administrative or statutory scheme, it has been repeatedly held that a single judge has jurisdiction over the case “where the [challenged] statute or regulation is of only local import.” Board of Regents v. New Left Education Project, 404 U.S. 541, 542, 92 S.Ct. 652, 653, 30 L.Ed.2d 697 (1972); see also Moody v. Flowers, supra, 387 U.S. at 101-102, 87 S.Ct. 1544. As we view the record in the instant case, we cannot definitely say that the prison administrative policy under attack here can legitimately be considered to be one of statewide application. Consequently, though the policy is challenged on constitutional grounds, § 2281 can have no application. See, e. g., Clutchette v. Procunier, supra; Metcalf v. Ogilvie, 436 F.2d 361 (7th Cir. 1970); Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir.), cert. denied, 368 U.S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 (1961).

The State of Rhode Island has but one adult correctional facility, the A.C.I., which is composed of a Maximum Security Unit, Medium Security Unit, Minimum Security Unit, Work Release Unit, and Women’s Division. Despite appellees’ allegation that the challenged prison administrative policy deprives all A. C.I. inmates of access to law students, it appears, on the basis of the evidence actually presented to the district court, that this policy may only apply selectively to certain portions of the A.C.I., and not to others. Particularly, it appears from the record that the “non-access” policy specifically extends to inmates housed at the Maximum and Medium Security Units, where the greatest threats to prison security exist. The verified affidavits of the law students denied access to A.C.I. inmates explicitly reveals only that they were “not ... allowed access to inmates confined in the A.C.L Maximum or Medium security facilities.” Consequently, while a regulation or policy clearly affecting the entire A.C.I. might arguably be said, as the fortuitous result of the existence of a single state prison, to be of “statewide” applicability, that circumstance need not be directly confronted here. Moreover, the Training School for Boys, and the separate and distinct Training School for Girls, which are both divisions of the Rhode Island Department of Corrections, are not under the control of the A.C.I. Consequently, even regulations and policies which fully affect the A.C.I. would not necessarily extend to those institutions, and it may conceivably be that in order for statewide applicability to attach, the challenged regulation or policy would have to encompass these training facilities as well. See, e. g., McCarty v. Woodson, supra, 465 F.2d at 826; cf. Rothblum v. Board of Trustees, 474 F.2d 891 (3d Cir. 1973). We leave that point for future consideration.

But even if the “non-access” policy at issue here could be fairly said to be of statewide application, we would still have grave doubts as to the applicability of § 2281. Essentially, the challenged policy represents the relatively informal reaction of one individual, Warden Mullen, to a particular set of exigencies. And while recognizing that a single prison administrator may, in an appropriate manner, promulgate regulations or practices so authoritative in their establishment of state policy as to require a three-judge panel when challenged, see Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968), cert. denied, 393 U.S. 1092, 89 S.Ct. 854, 21 L.Ed.2d 783 (1969), we do not believe that the instant policy can be so characterized. The “non-access” order under consideration was formulated unilaterally by Warden Mullen with minimal deliberation or evaluation, immediately after the murder of a prison guard in June 1973. See note 3 supra. It did not represent long-standing prison administrative practices and was indeed contrary to previous policy. There is no indication-in the record that any official of the State Department of Corrections, which supervises the A.C.I., in any way participated in or approved of the new policy. Unlike the Morris rules, see Morris v. Travisono, 310 F.Supp. 857 (D.R.I. 1970), this policy has never become standard operating procedure as embodied in specific Departmental regulations. Consequently, we do not believe that it necessarily represents a considered state judgment on the matter, or that, by nature, it constitutes the sort of important state policy which § 2281 was designed to protect. Given the Supreme Court admonition that § 2281 be read “not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such,” Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941), we see no sensible rationale compelling extension of its coverage to include challenges to this particular administrative policy. For this reason, as well as the previously recited lack of statewide application, we hold that § 2281 does not apply and that the district court properly exercised jurisdiction over the case.

Because we hold that the district court had jurisdiction to consider appellees’ constitutional claims, it necessarily follows that this court has jurisdiction to pass upon the merits of the holding below. However, unless it appears absolutely essential, we are reluctant to expressly decide at the present time the difficult and potentially controversial constitutional questions which taking into consideration the recent Supreme Court opinion in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), remain for our determination. In Martinez, after noting that “the constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights,” id. at 419, 94 S.Ct. at 1814 (emphasis supplied), the Court specifically held that a prisoner’s rights were unconstitutionally abridged by a state prison administrative rule which entirely proscribed inmate access to law student agents of attorneys. To the extent, therefore, that the law student assistants in the instant case were involved in the handling of inmates’ post-conviction relief or civil rights claims, see note 4 supra, Martinez clearly compels affirmance of that aspect of the district court’s decision.

What remains is the question whether inmates must be granted reasonable access to law students for purposes of assisting counsel in the resolution of an inmate’s more “mundane” legal problems, such as divorce, bankruptcy, and probate. As to this, the record of this case, post-Martinez, does not give us any basis for a confident ruling. Nor are we sure that a case or controversy exists. Not only do we not know the present posture of state prison officials who now must in any event permit access of students for assistance to counsel on Martinez matters, but the functions of the I.L.A.P. have, since March 31, 1974, been entirely assumed by the Rhode Island Public Defender Service, whose need for and use of student assistants is not a matter of record. Moreover, there is nothing before us to indicate that any of the plaintiffs have counsel who require student assistants. We therefore leave the working out of hopefully mutually satisfactory arrangements to the parties in the light of the changed circumstances.

That portion of the order of the district court relating to access to the Adult Correctional Institution by attorneys or their para legal assistants, including law students, is affirmed to the extent that it is governed by Procunier v. Martinez, supra.

      . The district court also ruled that the existing attorney-inmate consultation facilities at the A.C.I. were substantially inadequate and did not guarantee that the private legal communications between counsel and client would be protected. Consequently, the court held that this lack of confidential accommodations seriously impinged upon the inmates’ right to effective assistance of counsel and instructed the state to come up with a plan for remedying the situation. The court’s factual determinations are amply supported by the record, and its legal conclusions flow permissibly therefrom. See, e. g., Parker v. United States, 358 F.2d 50, 53 (7th Cir. 1965), cert. denied, 386 U.S. 916, 87 S.Ct. 872, 17 L.Ed.2d 788 (1967); Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749, 757 (D.C.Cir. 1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952); Smith v. Robbins, 328 F.Supp. 162, 164-165 (D.Me.1971), aff’d in part, vacated in part, 454 F.2d 696 (1st Cir. 1972). Other issues raised and decided by the district court have apparently not been pressed by the state on appeal.

      . As the district court found, the general responsibilities of the law students consisted of (1) ascertaining, on the basis of a personal interview, the inmate’s financial status in order to determine whether the inmate met the I.L.A.P.’s indigency requirements, (2) preparing a complete and accurate factual summary of the inmate’s specific legal problem, once indigency had been determined, and (3) crystallizing and researching the relevant legal issues presented so that the matter could be expeditiously reported to a staff attorney and the proper action taken thereon.

      . From September 1972 through June 1973, up to fifteen law students, serving as assistants to the I.L.A.P. staff attorneys, were regularly granted- access to inmates for the purposes of aiding in the resolution of the inmates’ legal problems. See note 2, supra. However, immediately following the June 22, 1973 murder of a correctional officer at the A.C.I., Warden Mullen, who had relieved Warden Howard after a devastating prison riot the previous April, promulgated the “non-access” policy presently being challenged. Nonetheless, the record makes perfectly plain that neither the existence of the I.L.A.P., nor of its law student assistants, in any way contributed to the riot or the murder of the guard.

      . The I.L.A.P. provided indigent prisoners with a broad range of legal services, consisting in part, of actions involving civil rights, post-conviction relief, divorce, bankruptcy, probate and bail. In addition, the I.L.A.P. served as liaison with the Rhode Island Public Defender Service with respect to a prisoner’s pending criminal trial.

      . The Supreme Court did, however, make clear that
      “prison administrators are not required to adopt every proposal that might be thought to facilitate prisoner access to the courts. The extent to which that right is burdened by a particular regulation or practice must be weighed against the legitimate interests of penal administration and the proper regard that judges should give to the expertise and discretionary authority of correctional officials.”
      Procunier v. Martinez, supra, 416 U.S. at 420, 94 S.Ct. 1800. Thus, with respect to access, reasonable administrative regulations or policies clearly relating to inter alia, the screening and monitoring of law students visiting the institution, the discipline and control of inmates, and the maintenance of order and safety in the prison, would appear to be permissible. The district court, in its opinion in the instant matter, so recognized.

      . Of course, inmate access to law students is not always a matter of constitutional right. The crucial constitutional principle at play in determining the necessity of law student access is the more fundamental right of access to the courts, Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1940), and the corollary right to obtain legal assistance to facilitate such access, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970). Thus, as the Supreme Court recognized in Martinez, the denial of law student assistance must “impose [] a substantial burden on the right of access to the courts” by “inhibit [ing] adequate professional representation of indigent inmates,” 416 U.S. at 420, 94 S.Ct. at 1814 before any constitutional right to law student access arises. Such a finding of impaired access was made by the district court below and is fully supported by the record.