author: PER CURIAM.

text:
    Robert KELLEY, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
    No. 74-1394.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 12, 1974.
    Decided Jan. 28, 1975.
    Richard D. Schreiber, Clayton, Mo., for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and ROSS and STEPHENSON, Circuit Judges.
   PER CURIAM.

Robert Kelley, a Missouri state prisoner, appeals from the decision of the district court denying his petition for a writ of habeas corpus. That court’s memorandum opinion and order is reported as Kelley v. Swenson, 376 F.Supp. 20 (E.D. Mo.1974). We affirm.

This is the second time that this petition has been before this Court on appeal. Kelley was convicted in state court of second degree burglary and stealing on February 20, 1970. A direct appeal was taken to the Missouri Supreme Court in which the sole issue presented was whether Kelley’s initial arrest by St. Louis police was based on probable cause. This arrest and subsequent incarceration led ultimately to Kelley’s confession to the burglary for which he was convicted. The confession was introduced into evidence at the trial over Kelley's objection that it was the product of an illegal arrest.

The state appellate court rendered its opinion on December 13, 1971, holding on that narrow issue that there was probable cause to make the arrest. State v. Kelley, 473 S.W.2d 707, 710 (Mo.1971).

Kelley then filed his petition for a writ of habeas corpus in federal court in which he predicated his right to relief on the basic allegation that his initial arrest had not been based on probable cause and that its product, the confession, was, therefore, inadmissible. The district court dismissed without prejudice on the grounds of failure to exhaust state remedies. This Court reversed and remanded on appeal with directions to vacate the dismissal and hear the petition on the merits. Kelley v. Swenson, 481 F.2d 86, 90 (8th Cir. 1973). After holding an evidentiary hearing on remand the district court denied the petition, and this appeal followed.

Before turning to the merits of the legality of Kelley’s arrest, we deal with his argument on appeal that the district court erroneously failed to make an independent review of the state court record. This claim has its origins in events at the evidentiary hearing. After relating his version of the arrest, Kelley rested. The state proposed to call both arresting officers to the stand to testify as to their version; but the state’s attorney, noting that their testimony would be identical to that given in the suppression hearing before the state trial court, offered the transcript of that testimony into evidence instead. The district court accepted this offer. Kelley’s attorney then proposed to offer into evidence the entire state court trial transcript. The district judge rejected this offer “because the whole thing is not pertinent to the arrest. . . .We are not concerned with the rest of the testimony of the trial.” He did, however, agree to accept any other specific portions which Kelley’s attorney could point out as “pertinent to this inquiry.”

While it is true under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, the District Judge has a right and duty to review the entire record of the trial, that right and duty extends only to the consideration of federal constitutional questions.

Gemmel v. Buchkoe, 358 F.2d 338, 341 (6th Cir.), cert. denied, 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306 (1966).

In this case the only federal constitutional question which had been exhausted in the state courts and which was, therefore, before the federal court concerned the validity of Kelley’s initial arrest. There was no reason to review the entire record for other possible constitutional infirmities; and, likewise, there was no duty to review those portions of the transcript which were totally irrelevant to the issue before the court. The trial court’s refusal to accept the whole transcript into evidence was entirely justified under these circumstances and there is no merit to this aspect of Kelley’s appeal.

The facts surrounding the disputed arrest are as follows: Two St. Louis police officers observed two known “police characters,” Winter and Steagal, parked behind the house of another “police character” in a truck which the officers knew neither of its ■ occupants owned. The officers recognized the truck as being of the same description as one which had been involved in nearby burglaries. Their suspicions were further aroused when Winter and Steagal left the truck and approached the officers. They proceeded to search the vehicle and found under the front seat three checks of the U. S. Department of Agriculture with amounts filled in with the use of a cheek protector. Upon calling St. Charles County authorities the officers learned that the checks had been taken in a burglary from an office in that county. Winters then identified Kelley as the owner of the truck, a fact which was verified by the appearance of Kelley’s name written on the exterior of the truck. Winters also told the officers that Kelley was currently at Winters’ home and that he had brought into the home stolen checks and a check protector. Acting on this information the officers went to Winters’ home where they found Kelley and placed him under arrest for the St. Charles burglary.

This Court recently reiterated the standard to be applied to the issue of probable cause in United States v. Peep, 490 F.2d 903, 906-907 (8th Cir. 1974).

We assess probable cause in terms of the eyes of a reasonably cautious and prudent peace officer in the circumstances of the moment.
Probable cause to arrest depends “upon whether, at the moment the arrest was made, * * * the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). . . . And in making this assessment we do not isolate for independent analysis each factual circumstance, but rather we view the action of the arresting officers on the basis of the cumulative effect of such facts in the totality of the circumstances. . . . (Citations omitted.)

See also United States v. Buckhanon, 505 F.2d 1079, 1081 (8th Cir., 1974).

Measured against this standard we are satisfied that the police officers had probable cause to arrest Kelley. At the time of the arrest they knew that three stolen checks had been recovered from a truck with Kelley’s name on it and that this truck matched the description of one which had been involved in several burglaries. They had information that the truck belonged to Kelley, that Kelley had brought stolen checks and a check protector into Winters’ home, and that Kelley was currently at that address. While this information may not have come from an unimpeachable source, its trustworthiness was indicated by the fact that Kelley’s name was painted on the truck and that when the officers actually arrived at Winters’ home Kelley was there. There was, in short, some corroboration of the story told by Winters. Cf. United States v. Cummings, 507 F.2d 324, 328-329 (8th Cir., 1974); McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969). The cumulative effect of these facts in the totality of the circumstances was sufficient to provide probable cause for Kelley’s arrest.

The judgment of the district court denying Kelley’s petition for a writ of habeas corpus is affirmed.


source: Caselaw Access Project

author: ELY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Judith Reinsdorf DOUGLAS, Appellant.
    No. 74-2498.
    United States Court of Appeals, Ninth Circuit.
    Jan. 27, 1975.

      George H. Spizzirri (argued), Las Vegas, Nev., for appellant.
    Stuart Rudnick, United States Atty., (argued), Las Vegas, Nev., for appellee.
    Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, Senior United States. District Judge, Portland, Oregon, sitting by designation.

   OPINION

ELY, Circuit Judge:

Douglas was convicted of having committed fraud by the use of a telephone in interstate commerce, an alleged violation of 18 U.S.C. § 1343. The trial was conducted by the district judge, upon stipulated facts and without jury.

Douglas was a subscriber to the services of the Central Telephone Company of Las Vegas, Nevada and, as such, was provided by the company with a telephone and an assigned number. Her fraudulent scheme involved the use of a mechanical device, commonly called a “blue box” in telephone parlance. The device, when attached to a subscriber’s system, enables the telephone user to avoid the payment of charges for long-distance calls. To do this, the user dials the toll free “800” network and when reaching normally inoperative telephones on such network may activate telephone company switching equipment so as to reach the operative number that is actually desired.

The calls here involved were several from Nevada to Massachusetts and at least one reaching from Nevada to a telephone switching station in Oklahoma. At oral argument counsel for appellant, with commendable candor, conceded that three of the contentions made in his brief are answered by our decision in United States v. Scaramuzzo, 505 F.2d 102 (9th Cir. 1974). These points are that section 1343 does not apply to schemes to defraud executed by means of telephonic communication, that the section is unconstitutionally vague, and that the section does not apply to the use of mechanical contrivances to obtain telephone service by fraud. Counsel, however, did not abandon these points as possible grounds for proceedings before a higher court. We adhere to Scaramuzzo.

The principal question before us is whether a search warrant, under which officers entered the appellant’s home and discovered two “blue boxes” bearing her fingerprints, was valid. Douglas’ argument is that the affidavit presented by an investigating officer in seeking the warrant was, on its face, insufficient to justify the warrant’s issuance. The warrant was issued by a United States Magistrate on May 24, 1973. On the same day, an employee of the telephone company, acting with the consent of his superiors, employed a monitoring device known as a TTS-176 further to investigate Douglas’ use of her telephone. This device, capable of detecting multi-frequency tones produced by a “blue box” when being used by a subscriber, verified that a blue box was being used on the Douglas telephone. Incidentally, the monitoring device does not intercept verbal communications. In any event, since the warrant was issued prior to the use of the TTS-176, we ignore the information gained by the use of that device in reaching our conclusion with respect to the validity of the warrant.

The affidavit in support of the warrant was executed by Michael G. Simon, a Special Agent of the Federal Bureau of Investigation. Paragraph 4 of Agent Simon’s affidavit reads:

“On May 22, 1973, Mr. L. Roy Whitney, Plant Manager, Central Telephone Company, Las Vegas, Nevada, advised me that a search by Central Telephone Company had revealed that electronic devices were being used to circumvent Central Telephone Company’s billing and record keeping machinery for long distance calls over telephone number 702-732-1843.”

The quoted language, based upon hearsay and essentially conclusory and not specific, might not be sufficient, in and of itself, to justify the issuance of the warrant. However, paragraph 5 of Agent Simon’s affidavit contains detailed accounts of legitimate disclosures. It recites that the records of Douglas’ telephone number “show numerous calls” to an inoperative “800” telephone number in Massachusetts.

Paragraph 5 specifies the dates of certain calls to other inoperative “800” numbers in Massachusetts as well as to a similar number in Oklahoma. All of the calls, according to the affidavit, emanated from the Douglas telephone. Considering all of the foregoing, together with the fact that the affidavit reveals telephonic expertise in the accumulation of the affidavit’s contents, we are convinced that the affidavit, in and of itself, established adequate probable cause for the issuance of the challenged warrant. This conclusion being dispositive of the appeal, we do not reach other issues raised by Douglas, the most interesting of which involves the question of whether 18 U.S.C. § 2511(2)(a)(i) can be harmonized with 47 U.S.C. § 605. 18 U.S.C. § 2511(2)(a)(i), authorizing a communication common carrier “to intercept, disclose, or use” a communication in order to protect its own interests, was enacted in 1968. The statute apparently tracks some of the contents of our court’s previous opinion in Bubis v. United States, 384 F.2d 643 (9th Cir. 1967).

The judgment of conviction is affirmed.

      . These specific calls were those set forth in the affidavit offered in support of the application for a search warrant. However, the calls for which the appellant was convicted were calls made, by use of the “blue box,” from Nevada to California.


author: HAYS, Circuit Judge: MANSFIELD, Circuit Judge

text:
    CERAMCO, INC., Plaintiff-Appellee, v. LEE PHARMACEUTICALS, Defendant-Appellant.
    No. 296, Docket 74-1757.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 22, 1974.
    Decided Jan. 30, 1975.

      Mary Helen Sears, Washington, D. C. (Martin J. Spellman, Jr., White Plains, N. Y., on the brief), for defendant-appellant.
    William W. Owens, New York City (Rogers & Wells, New York City, on the brief, David F. Dobbins and James W. Paul, New York City, of counsel), for plaintiff-appellee.
    Before SMITH, HAYS and MANSFIELD, Circuit Judges.
   HAYS, Circuit Judge:

This is an appeal from an order of the United States District Court for the Eastern District of New York, denying the motion of defendant-appellant Lee Pharmaceuticals to disqualify Rogers & Wells, attorneys for plaintiff-appellee Ceramco, Inc. on grounds of professional misconduct. Also before us are appellee’s motion to strike certain pleadings and preclude reliance on such pleadings on the ground that they contain information unethically elicited by counsel for Ceramco. Appellee has moved to dismiss the appeal. We affirm the order of the district court.

Ceramco, a wholly owned subsidiary of Johnson and Johnson Company, brought this action against Lee, a California corporation, claiming that the sale by Lee of a dental adhesive under the trademark “Genie” infringed Ceramco’s trademark rights. The claim of professional misconduct which is before us here stems from two telephone calls made by Thomas W. Towell, an associate of the firm of Rogers & Wells, attorneys for Ceramco, in order to ascertain whether jurisdiction over Lee and venue in the action could properly be established within the Eastern District of New York. Towell telephoned to defendant Lee’s order department in California and without identifying himself or alluding to his capacity as opposing counsel, requested the names of dental supply houses in the Eastern District which were distributing the “Genie” adhesive. On both occasions the requested information was freely provided. The facts thus elicited were used by Ceramco’s counsel as a basis for jurisdiction and to support an order to show cause why a preliminary injunction restraining Lee from using the trademark “Genie” on any dental product should not issue. The same facts also provided the basis for opposing Lee’s motion to dismiss the complaint pursuant to Rule 12(b), Fed.R. Civ.P., in which Lee contested the personal and subject matter jurisdiction of the district court. Lee’s motion to dismiss was denied.

Lee claimed that Towell’s direct communication with Lee’s order department despite his knowledge that Lee had retained counsel violated Canon 7 of the Code of Professional Responsibility and associated Disciplinary Rule DR 7 — 104 and that the inclusion in supporting affidavits of the information acquired by Towell’s telephone calls in effect made Towell a “witness for his client” and therefore subject to disqualification under Canon 5 and DR 5 — 102(A). In addition, the conduct as a whole was alleged to have violated Canon 9, which generally proscribes “even the appearance of professional impropriety.”

Lee’s disqualification motion was denied. Lee moved to stay proceedings below, pending disposition of Lee’s appeal from the denial of its motion to disqualify. The motion to stay was denied by this court, and proceedings are currently continuing in the district court. Appellee’s motion to dismiss this appeal and appellant’s renewed motion to stay further proceedings were referred to this panel for disposition in conjunction with disposition of the appeal on the merits.

The disqualification order is properly before this court. The district court was incorrect in its view that the various bar associations constitute the only proper forum for investigation of a claim of professional misconduct. On the contrary, the courts have not only the supervisory power but also the duty and responsibility to disqualify counsel for unethical conduct prejudicial to his adversaries. See, e. g., General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974) (en banc); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). Further, as we made clear in Silver Chrysler Plymouth, Inc., supra, 496 F.2d at 805 — 806, an order denying disqualification of counsel is “a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it” and is thus directly appealable under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

An examination of the circumstances of this case convinces us that while counsel’s behavior is not to be commended, it is not the kind of conduct which should result in disqualification of counsel or nullification of prior proceedings. Although it would have been better if Towell had identified himself in his calls or had used an independent investigation agency, it would be too harsh to rule that the action of counsel in telephoning defendant’s employees to obtain non-privileged, relevant, and accurate information as to jurisdiction and venue constituted actual wrongdoing. Ceramco’s inquiries were limited in scope to those items of information necessary to ascertain whether suit could be instituted in the chosen forum and there is no suggestion that counsel sought any unfair advantage by his inquiries. This is the kind of misconduct, if it is misconduct, which is technical in character, does no violence to any of the fundamental values which the cations were written to protect and certainly falls far short of justifying a grant of the relief requested.

The typical situation in which disqualification has been found to be an appropriate remedy has involved a conflict of interest such that continued representation by chosen counsel clearly prejudiced the rights of the opposing party and, by creating the appearance of impropriety, posed a substantial threat to the integrity of the judicial process. Thus, in General Motors Corp. v. City of New York, supra, New York City’s privately retained counsel was disqualified because of his prior substantial involvement as an employee of the Department of Justice in a matter which was almost identical to the dispute for which his retention was sought. Similarly, in Emle Industries, Inc. v. Patentex, Inc., supra, plaintiff’s attorney was barred from representing plaintiff in a suit against a former client of the attorney when the matters embraced within the two litigations were substantially related. The considerations which made disqualification a necessary and desirable remedy in these cases, namely the need to enforce the lawyer’s duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information, are not present here. Nor is there any other compelling reason to interfere with plaintiff’s choice of counsel. There is no basis for questioning the continued capacity of Rogers & Wells to represent Ceramco, and certainly the institution of suit in a court which has been held to be a proper forum does not constitute the kind of prejudice to an adversary from which this court can or should give relief. In sum, Ceramco’s counsel’s actions, while demonstrating an unfortunate insensitivity to the etiquette of the bar, had no possibility of so prejudicing the opponent that the firm should be barred from the case entirely or the client punished by precluding reliance on counsel’s work product. Accordingly, if any corrective action is to be taken, it should be accomplished under the auspices of the appropriate bar association and should in no way be permitted to affect the decision on the merits of the case.

Appellant’s alternative claim that disqualification is required on the ground that Towell became in effect a witness for his client must also be rejected. To-well’s affidavit was not considered by the district court at the hearing to determine jurisdiction and in fact an offer was made to withdraw it voluntarily. The court below heard live testimony from appellant’s own dealers on the issues of jurisdiction and venue.

Appellee’s motion to dismiss the appeal and appellant’s motion to stay further proceedings are denied. The order of the district court is affirmed.

MANSFIELD, Circuit Judge

(concurring):

I concur. However, I would not want my concurrence to imply that Mr. To-well’s telephone call amounted to misconduct, much less that it warrants any action by a bar association.

      . Canon 7 of the Code of Professional Responsibility provides that “[a] lawyer should represent a client zealously within the bounds of the law.”
      Disciplinary Rule DR 7-104(A)(l) provides as follows:
      “DR 7-104 Communicating With One of Adverse Interest.
      (A) During the course of his representation of a client a lawyer shall not:
      (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”

      . Canon 5 of the Code of Professional Responsibility provides that “[a] lawyer should exercise independent professional judgment on behalf of a client.”
      Disciplinary Rule DR 5-102(A) provides as follows:
      “DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.
      (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(l) through (4).”
      DR 5-101(B) states:
      “(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
      (1) If the testimony will relate solely to an uncontested matter.
      (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
      (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
      (4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”

      . Lee’s Rule 12(b) motion to dismiss on grounds, inter alia, of lack of jurisdiction was denied by an order of the district court. The correctness of that ruling is not before us on this appeal,


author: PER CURIAM:

text:
    FIDELITY STANDARD LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. FIRST NATIONAL BANK & TRUST COMPANY OF VIDALIA, GEORGIA, Defendant-Third-Party Plaintiff-Appellant, v. SECURITY MUTUAL CASUALTY COMPANY, Third-Party Defendant.
    No. 74-3844
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 24, 1975.
    Rehearing Denied April 14, 1975.
    Paul W. Calhoun, Jr., Vidalia, Ga., Little, Schwartz & Dussom, New Orleans, La., for defendant-third-party plaintiff-appellant.
    Robert S. Reeves, Swainsboro, Ga., Harry McCall, Jr., New Orleans, La., Dow N. Kirkpatrick, II, Earle B. May, Jr., Atlanta, Ga., for plaintiff-appellee.
    Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Fidelity Standard Life Insurance Company sued in federal district court below to enforce a $281,685.71 judgment against appellant which it obtained in Civil District Court in Orleans Parish, Louisiana. In a thorough and well-reasoned opinion, Judge Lawrence held that the Louisiana judgment was entitled to full faith and credit and granted summary judgment in favor of Fidelity Standard. On appeal, appellant claims that the district court erred in not looking behind the Louisiana judgment to determine whether Louisiana properly asserted in personam jurisdiction over appellant under Louisiana’s long-arm statute. We agree with the district court that the jurisdictional issue could not be collaterally relitigated, and therefore affirm.

Appellant’s sole argument is that the Louisiana judgment is void because that state lacked jurisdiction to determine the case. But the jurisdictional issue was duly raised, argued and decided by the Louisiana Civil District Court. Because the jurisdictional issue was fully litigated in the original court, this issue may not be relitigated by way of collateral attack. The Supreme Court has noted that its decisions have “carefully delineated the permissible scope” of an inquiry into a foreign court’s jurisdiction to render a judgment when a court is asked to give effect to the judgment of another state. Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 245, 11 L.Ed.2d 186 (1963).

From these decisions there emerges the general rule that a judgment is entitled to full faith and credit — even
as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.

375 U.S. at 111, 84 S.Ct. at 245 (emphasis added). Accord, Sherrer v. Sherrer, 334 U.S. 343, 348, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85 (1939); Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931). There is no contention raised here that the Louisiana judgment is not final, or that the jurisdictional issue had not been actively litigated and fairly decided in the Louisiana forum. Thus, the lower court was obligated to give full faith and credit to the judgment.

The Louisiana judgment is presently pending appeal in the state court system. This fact does not affect the judgment’s binding force in a second court as to all issues, including that of jurisdiction, where the appeal remains binding and final between the parties under the law of the state rendering the judgment. Denham v. Shellman Grain Elevator, Inc., 5 Cir., 1971, 444 F.2d 1376, 1380; Maner v. Maner, 5 Cir., 1969, 412 F.2d 449, 451. A case pending appeal is res judicata and entitled to full faith and credit unless and until reversed on appeal. Grantham v. McGraw-Edison Co., 7 Cir., 1971, 444 F.2d 210, 217; Prager v. El Paso National Bank, 5 Cir., 1969, 417 F.2d 1111; A. F. Pylant, Inc. v. Republic Creosoting Co., 5 Cir., 1961, 285 F.2d 840, 841—842; United States v. Nysco Laboratories, E.D.N.Y., 1963, 215 F.Supp. 87, 89, aff’d, 2 Cir., 318 F.2d 817; 1B J. Moore, Federal Practice ¶ 0.416[3] (1974). Thus, should appellant prevail on its jurisdictional claim in the Louisiana courts, it would be entitled to relief from judgment in the court below.

Affirmed.


author: MANSFIELD, Circuit Judge:

text:
    Arthur S. KURLAN et al., Plaintiffs-Appellants, v. Howard H. CALLAWAY, Secretary of the Army, et al., Defendants-Appellees.
    No. 475, Docket 74-2347.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 19, 1974.
    Decided Dec. 27, 1974.

      Steven J. Hyman, New York City (Samuel B. Mayer, Kunstler, Kunstler, Hyman & Goldberg, New York City, on the brief), for plaintiffs-appellants.
    Robert S. Hammer, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for defendants-appellees Wilson and Baker.
    Louis G. Corsi, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, New York City, of counsel), for defendant-appellee Calla-way.
    Before SMITH, HAYS and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

The central question raised by this appeal is whether certain members of the New York Army National Guard (“the Guard” herein) are entitled, after five years of service in the Guard as part of our country’s Ready Reserve, to be transferred to the Standby Reserve (an organization requiring less active participation in military activities than does the Guard) by reason of their having been members of Guard units that were called by the President of the United States to active duty in 1970 pursuant to 10 U.S.C. § 673 to assist the Postmaster General in maintaining postal service during a strike of postal employees. Because appellants were away from their units at the time of the call-up serving on active duty for training, they did not perform any postal duty. Transfer of appellants to the Standby Reserve was refused by the Army on the ground that they had failed to comply with 10 U.S.C. § 269(e)(2), which provides that only those who have served on active duty “other than for training” are eligible for such transfer, and 10 U.S.C. § 269(g), which requires consent for the transfer of the governor of the state concerned (in this case the Governor of New York).

Appellants, in an action instituted in the Southern District of New York against the Secretary of the Army, the Governor of New York and the Commanding General of the Guard, based on 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343 and 1361, sought injunctive relief enforcing their alleged right of transfer, upon completion of five years’ service, pursuant to 10 U.S.C. § 269(e)(2). Judge Robert J. Ward, adhering to his earlier decision in a similar case, Mela v. Callaway, 378 F.Supp. 25 (S.D.N.Y.1974), held that appellants, although actually engaged in training activities at the time of the call-up, qualified for active duty status within the meaning of § 269(e)(2), entitling them to transfer to the Standby Reserve upon consent of the Governor of New York as required by § 269(g). However, he further concluded that although Governor Rockefeller, by Executive Order 39, issued on June 10, 1970, had consented to such transfers, appellants were no longer eligible because on July 10, 1974, Governor Wilson, by Executive Order 8, modified the earlier order to deny any further transfers of Guardsmen in appellants’ position. Accordingly he granted appellees’ motion for summary judgment dismissing the complaint. We hold that those appellants who were eligible and had applied for transfer before July 10, 1974, were entitled to transfer to the Standby Reserve. We affirm as to all others. The case is accordingly remanded for further proceedings not inconsistent with this opinion.

This action has its genesis in the postal workers’ strike that occurred in New York City in the spring of 1970. On March 23 of that year the President of the United States declared a state of national emergency and directed the Secretary of Defense to call reserves of the armed forces to active duty to assist the Postmaster General in restoring and maintaining postal service. Executive Order 11519, 35 Fed.Reg. 5003 (1970). The call-up, which was designated “Operation Graphic Hand,” included members and units of the New York Army and Air National Guard.

In order to fulfill their military obligation members of the Reserve or of the Guard are required to serve a total of six (6) years either on active duty, on active duty for training or in the Reserve component of the United States Armed Forces, 10 U.S.C. § 651. As a result of having performed active duty in Operation Graphic Hand, federal Reservists (members of the Naval, Marine Corps, Army and Air Force Reserves) automatically become eligible after five years’ service for transfer to the Standby Reserve for the remainder of their term pursuant to 10 U.S.C. § 269(e)(2). National Guardsmen, however, who are also members of the Ready Reserve,, 10 U.S.C. § 269(b), become eligible for such transfer as a result of their being called to active duty only if, in addition, the governor of their state consents to the transfer, 10 U.S.C. § 269(g).

The difference between duty in the Ready Reserve and the Standby Reserve is not insignificant. A person in the Ready Reserve is subject to call-up “[i]n time of national emergency declared by the President” without further act of Congress, 10 U.S.C. §§ 672 and 673. He or she is also liable to call-up for up to two years as an unsatisfactory participant in the Ready Reserve, 10 U.S.C. § 673a(a). Finally, and probably most significant, a Ready Reservist is required to attend 14 days annual field training and at least 48 scheduled drills or training periods each year, 10 U.S.C. § 270. In contrast, a Standby Reservist is subject to call-up only “[i]n time of war or of national emergency declared by Congress,” and then only if “the Director of Selective Service determines that the member is available for active duty,” 10 U.S.C. § 672(a), and if there are insufficient numbers of Ready Reserve units or personnel available to meet the nation’s needs, 10 U.S.C. § 674. Furthermore, the Standby Reservist is not required to attend drills or field training sessions.

Appellants contend that since they were members of units ordered to active duty in Operation Graphic Hand, they must, even though they did not serve with their units after call-up, be deemed to have been on active duty during that Operation for purposes of § 269. They further argue that permission for their transfer was granted by Executive Order 39 and that it could not validly be revoked by Executive Order 8 issued on July 10, 1974, amending Executive Order 39 of Governor Rockefeller.

Consideration of the issues raised by this appeal requires some familiarity with Mela v. Callaway, supra. Mela was an action brought before the issuance of Executive Order 8 by Guardsmen in the same position as appellants herein against the same three defendants (Secretary of the Army, Governor of New York and Commanding General of the Guard) seeking the same relief. In that case Judge Ward held that the plaintiffs there had been on active duty for purposes of § 269(e)(2), that § 269(g) required the Governor’s permission for transfer in these circumstances and that Executive Order 39 gave permission for transfer to the Standby Reserve to persons in plaintiffs’ position. He concluded that under applicable federal laws and regulations Guardsmen in training when their units are ordered to active duty must for purposes of § 269(e)(2) be deemed to have served as part of their

units on active duty. He further reasoned that since Order 39 did not distinguish between Guardsmen in such units who served on active duty in Operation Graphic Hand and those who continued on active duty for training after the call-up, and since no attempt was made to define the status of the latter differently from the federal definition, permission had been given by Governor Rockefeller for the transfer of any Guardsman who met the federal specifications of active duty. Relief was granted in the form of an order preliminarily enjoining the state from requiring the plaintiffs there (all of whom had completed their fifth year in the Guard) to attend drills and annual field training pending the outcome of the action.

A notice of appeal from the Mela decision was filed, but the appeal was eventually dismissed for non-prosecution.

In light of the district court’s interpretation in Mela of the scope of Executive Order 39, the state took steps immediately after the Mela decision to narrow the scope of permission for transfer. On July 10, 1974, Governor Wilson issued Executive Order 8, which amended and superseded Order 39. Consent for members of the Guard to transfer to the Standby Reserve was thereby limited to those who were otherwise qualified and who “actually performed full time duty with their assigned units in the active military service of the United States.” The obvious intent was to continue consent for those Guardsmen who had actually helped move the mails to transfer to the Standby Reserve and to deny permission to those in appellants’ position who were officially on active duty but had remained in training away from their units.

DISCUSSION

We need not linger long over defendants’ threshold contention that federal courts lack jurisdiction over claims asserted by appellants with respect to their status in the Reserve. Appellants have at least made out a colorable claim of denial of equal protection of the laws in violation of the civil rights statutes, 42 U.S.C. § 1983 and 28 U.S.C. § 1343, which is sufficient to invoke federal jurisdiction over the state defendants, by asserting that the state defendants, as the persons in command of appellants, acted arbitrarily and capriciously in denying transfer to those who applied and were qualified for it before July 10, 1974, and that Order 8 attempts to make an illegal distinction among persons who are equal in the eyes of controlling federal law. See Almenares v. Wyman, 453 F.2d 1075 (2d Cir. 1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972). As the district court noted, the relief sought against the federal defendant, Secretary of the Army Callaway, is in the nature of mandamus.

Turning to the merits, under Army Regulation AR135-300 12-38(b) Reservists (including members of the Guard) who are on active duty for training at the time when their units are called to active duty- are automatically classified as being on active duty status. “Active duty” in this context denotes a formal status within the military establishment, which is not dependent on the called-up individual’s activities while on such duty, as long as the definition encompasses him. Bell v. United States, 366 U.S. 393, 410, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1960). In Hornstein v. Laird, 327 F.Supp. 993 (S.D.N.Y.1971), for instance, Reservists were held to be entitled to transfer under § 269(e)(2) because they had served on active duty status within the definition set out in AR135-300, even though they had been called-up by mistake and immediately sent home upon reporting to their point of assembly. In the present case appellants would at least have been required, upon completion of their training, to join their fellow Guardsmen in handling the mails if the postal strike had lasted beyond their tour of training.

In the absence of any indication that the term “active duty” as used in § 269 differs in meaning from that given in Army Regulation AR135-300, and in view of the opinion of the Army Judge Advocate General’s Office that the Regulation defining active duty status applies to § 269, see Exhibit A of the Complaint, we adopt that definition here. Since under this interpretation persons on active duty for training assumed active duty status upon the call-up of their units, they satisfy the requirements of § 269(e)(2) for transfer to the Standby Reserve upon completion of five years’ service, provided the Governor of the State of New York consents. This consent was given by Governor Rockefeller in Executive Order 39. We are not persuaded that the term “active duty” as used in that Order was intended to exclude persons in appellants’ position. In these circumstances the consent must be interpreted as broadly as the meaning of the terms used in giving it, especially when, as Army Regulation AR135-300 If 2-38 reveals, those terms had precise meaning in relevant law when the Order was issued.

Finally, we come to the main issue raised by this appeal — the scope and effectiveness of Executive Order 8, which purported to modify the Governor’s prior consent by limiting it to those who actually performed full time duty with their assigned units and making it inapplicable to those absent on active duty for training. In considering Order 8 we must, of course, give deference to the general rule that federal courts will not normally review purely discretionary decisions by military officials which are within their valid jurisdiction. E. g., Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct., 2440, 37 L.Ed.2d 407 (1973); Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969); United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). However, the military is not free to disregard its own regulations or federal statutes. Where military agencies have established their own procedures and regulations, we have acted to insure that they are followed. See Smith v. Resor, supra; Hammond v. Lenfest, 398 F.2d 705, 710 (2d Cir. 1968). Further, in rare cases a federal court may overturn a discretionary military decision if it is “so arbitrary and irrational that it cannot stand.” Feliciano v. Laird, 426 F.2d 424, 427 (2d Cir. 1970).

Defendant state officials argue that the Governor’s decision, expressed in Order 8, to deny permission- to persons in appellants’ position to transfer to the Standby Reserve falls within the area of military discretion and thus cannot be reviewed by this Court except in the two limited circumstances noted above. We need not reach that question, however, because we find that the denial of permission was reasonably based and the Order therefore survives the review which the state defendants seek to avoid.

The Governor was free to change the manner in which he exercised the discretion vested in him by § 269(g). Cf., e. g., Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 202-203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). In this instance his action was apparently based on the difference in hardship and in disruption of civilian life suffered by Guardsmen already in training as compared to those suddenly called-up to help move the mails. Persons already on active duty for training were unlikely to suffer hardship as a result of the call-up because they were serving in the military full time and were not required to be uprooted. In contrast, those persons called-up from civilian life were in all likelihood required to arrange to leave their jobs and families on extremely short notice and remain away for an indefinite period of time, with probable loss of pay from their civilian jobs. During their tour of active duty, furthermore, their families were left without a vital member. A distinction based on these differences in hardship is clearly within the discretion vested in the Governor by § 269(g). Furthermore, it bears a reasonable relationship to a legitimate state objective, i. e., relief for those who have suffered hardship in the state military forces, and it does not violate equal protection guarantees. Cf. United States ex rel. Murray v. Owens, 465 F.2d 289, 294 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973).

In opposition to the distinction made by Order 8 appellants argue that the Governor has unlawfully re-defined their active duty status, in effect determining that they were not on active duty for his purposes. As active duty is a federally defined status, see Bell v. United States, supra, 366 U.S. at 410, 81 S.Ct. 1230, 6 L.Ed.2d 365, appellants urge that Order 8 amounts to an impermissible denial of controlling federal law. We disagree. The Governor’s Order simply makes a rational distinction between two classes of persons already on active duty status, based on the character of their respective service. Such a distinction does not adversely affect the federal definition of active duty.

Although we generally uphold the validity of Order 8, it may not be applied to deny transfer to all appellants. Under § 269(e)(2) National Guardsmen satisfying the requirements of that section who applied for transfer to the Standby Reserve while Order 39 was in force were entitled to have their applications granted, without any right on the part of the defendants to refuse, since the applicants had satisfied all statutory requirements for transfer. See Hornstein v. Laird, supra. Whatever discretion existed in the Governor under § 269(g) had been exercised in favor of such applicants. All that remained was the ministerial act of processing the papers. Order 8 is not retroactive. Although the administrative processing of some earlier applications might not have been completed until after Order 8 went into effect the transfers were for all practical purposes completed prior to the effective date of that Order. The necessary paper work to complete applications then pending is not a prerequisite to the granting of the transfers under the law. It is simply an administrative detail, the completion of which this Court may order if it is not accomplished voluntarily. Chapman v. El Paso Natural Gas Co., 92 U.S.App.D.C. 154, 204 F.2d 46, 54 (1953). Otherwise the state defendants could take advantage of their previous illegal refusal to transfer Guardsmen, which would completely nullify any court order requiring transfer based on a general grant of permission such as was issued in Mela. Accordingly we hold that appellants who qualified for transfer under § 269(e)(2) before July 10, 1974, and who applied for such transfer before that date, are entitled to transfer. However, since Order 39 was effective only as to those qualified Guardsmen who applied while it was in force, those who failed to apply before it was effectively modified by Order 8 were not entitled to transfer. The stay issued by us on October 17, 1974, is therefore terminated as to appellants who did not apply for transfer until after the date when Order 8 became effective.

The district court’s decision is affirmed in part and reversed in part and the case is remanded to the district court for further proceedings not inconsistent with this opinion.

      . 10 U.S.C. § 269(e)(2) provides in pertinent part as follows:
      “(e) Except in time of war or of national emergency declared by Congress, a Reserve who is not on active duty, or who is on active duty for training, shall, upon his request, be transferred to the Standby Reserve for the rest of his term of service, if—
      ******
      “(2) he served on active duty (other than for training) in the armed forces for an aggregate of less than five years, but satisfactorily participated, as determined by the Secretary concerned, in an accredited training program in the Ready Reserve for a period which, when added to his period of active duty (other than for training), totals at least five years, or such shorter period as the Secretary concerned, with the approval of the Secretary of Defense in the case of a Secretary of a military department, may prescribe for satisfactory participation in an accredited training program designated by the Secretary concerned.

        “This subsection does not apply to a member of the Ready Reserve while he is serving under an agreement to remain in the Ready Reserve for a stated period.” (Emphasis added).

      . 10 U.S.C. § 269(g) provides:
      “(g) A member of the Army National Guard of the United States or the Air National Guard of the United States may be transferred to the Standby Reserve only with the consent of the governor or other appropriate authority of the State or Territory, Puerto Rico, the Canal Zone, or the District of Columbia, whichever is concerned.”

      . Executive Order 39 provides:
      “I, Nelson A. Rockefeller, by virtue of authority vested in me as Governor by the Constitution and the laws of the State of New York including Section 3 of the Military Law and by the laws of the United States including Title 10 United States Code, Section 269(g), do hereby consent to the transfer to the Standby Reserve of those members of the New York Army National Guard and New York Air National Guard, otherwise qualified, who apply for such transfer, and who complete five years of satisfactory service from the date of their enlistment and who performed full time duty in the active military service of the United States pursuant to Proclamation 3972 (35 Federal Register 5001) dated March 23, 1970, and Executive Order 11519 (35 Federal Register 5003) dated March 23, 1970, issued by the President of the United States, and do hereby authorize and direct the Chief of Staff to the Governor to accept applications for such transfers and institute appropriate processes to effect transfer of qualified applicants as soon as possible.”
      Executive Order 1 of Governor Wilson, issued on December 3, 1973, continued the effectiveness of previous Executive Orders. It provides:
      “Having determined it to be in the public interest that there be no doubt as to the continued validity and effectiveness of executive orders heretofore issued by the Governors of the State of New York and now in effect, I, Malcolm Wilson, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and Laws of the State of New York, do hereby direct by executive order that all executive orders and amendments thereto heretofore issued and promulgated and in effect as of this date shall remain in full force and effect until otherwise revoked or modified.”

      . Executive Order 8 provides:
      “I, Malcolm Wilson, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the laws of the State of New York, do hereby direct by Executive Order that Executive Order Number 39 dated June 10, 1970 consenting to the transfer of certain members of the New York Army National Guard and the New York Air National Guard to the Standby Reserve, as continued by Executive Order Number 1 dated December 18, 1973, be amended to read as follows:
      By virtue of the authority vested in me by the Constitution and laws of the State of New York including section 3 of the Military Law and by the laws of the United States including Title 10, United States Code, Section 269(g), I, Malcolm Wilson, Governor of the State of New York do hereby consent to the transfer to the standby reserve of those members of the New York Army National Guard and the New York Air National Guard, otherwise qualified, who apply for such transfer, and who complete five years of satisfactory service from the date of their enlistment and who actually performed full time duty with their assigned units in the active military service of the United States pursuant to Proclamation 3972 (35 Federal Register 5001), dated March 23, 1970, and Executive Order 11519 (35 Federal Register 5003) dated March 23, 1970, issued by the President of the United States, and do hereby authorize and direct the Chief of Staff to the Governor to accept applications for such transfers and institute processes to affect transfer of qualified applicants as soon as possible, provided, however, that nothing contained herein shall be construed to authorize or permit the transfer to the stand by reserve of any member of the New York Army National Guard or the New York Air National Guard who did not actually perform such full time duty with their assigned unit because of their absence from such unit for active duty for training.” (Emphasis in original).

      . “The Court agrees with plaintiffs’ contention that the Proclamation [accompanying Executive Order 39], which recites that certain members of reserve components other than the National Guard are eligible ‘by virtue of their service on active duty during the work stoppage, for transfer’ to the Standby Reserve and that members of the National Guard are also eligible for transfer to the Standby Reserve ‘by virtue of their service during the work stoppage’ with the consent of the Governor, and the Executive Order give the requisite consent for the transfer to the Standby Reserve of those members of the National Guard who were serving on active duty for training when their units were called up for active duty.
      “The Department of the Army, Office of the Judge Advocate General, has determined that Army Regulation AR135-300 H 2-38; U 2-58(2)f(5); and chapter 3 require that ‘[r]eservists who were on active duty for training at the time of the postal strike and whose units were ordered to active duty by the Department of the Army are to be considered as having served on active duty so as to qualify for transfer under the provisions of 10 U.S.C. § 269(e)(2).’ Significantly, chapter 3 of AR 135-300, on which the Department of the Army relied in part in making this determination, applies only to the Army National Guard.
      “Although the Department of the Army determination was made subsequent to the Governor’s Proclamation and Executive Order, AR 135-300 was effective October 1, 1969. This regulation, which appears to deem members of all reserve components on active duty for training to be on active duty to the extent that their units are on active duty, has thus been so interpreted by an official of the Department of the Army, the agency promulgating the regulation. The Governor either knew or should have known of this provision.” Mela v. Calla-way, supra, 378 F.Supp. at 29.

      . “Furthermore, it is clear from the Proclamation that the Governor’s intent in issuing Executive Order No. 39 was to put members of the National Guard on a parity with members of other reserve components. If, in fact, the Governor did not intend that his consent extend to those in plaintiffs’ position, after other reservists similarly situated were given the benefits provided in 10 U.S.C. § 269(e)(2), he could have modified the consent given in Executive Order No. 39. This he did not do.
      “Instead, the present Governor, through his agent, Brigadier General Francis J. Higgins, now argues that when his predecessor issued Executive Order No. 39 he did not intend that it would apply to those in plaintiffs’ position. Such post hoc statements made in response to a lawsuit are not persuasive.” Mela v. Callaway, supra, 378 F.Supp. at 29.

      . Army Regulation AR135-300 1] 2-38(b) provides in pertinent part:
      “b. REP-63 [Reserve Enlistment Program of 1963] members on active duty for training.

      “(1) REP-63 members on active duty for training at the time their units are ordered to active duty and whose training tours will not extend beyond 6 months from the effective date of unit order to active duty will be carried on the Morning Report of the unit to which assigned as absent for the remainder of the period of training. Upon completion of training, members will report for duty to their assigned units. Absence of such members does not create vacancies in the units to which they are regularly assigned. If the unit of assignment has been deployed overseas prior to completion of the members’ active duty for training tour, or if replacement of members is essential to permit the unit to attain readiness for deployment, the members will be reassigned to the training activity at which serving and reported for assignment instructions to the Chief of Personnel Operations, Department of the Army, Washington, DC 20310.
      “(2) Commanders of alerted units, will notify direct, by letter, the commanding officer of the installation at which members of their units are serving on active duty for training, inclosing a copy of the orders bringing the unit on active duty. The letter of notification will specify that effective upon the date of unit entry on active duty as shown in the orders, the members concerned will change from an active duty for training to an active duty status. The letter will further indicate whether the members should be returned to the parent unit upon completion of training.”


author: GURFEIN, Circuit Judge:

text:
    Thomas KAISER, Plaintiff-Appellant, v. William CAHN, Defendant-Appellee.
    No. 397, Docket 73-2862.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 11, 1974.
    Decided Dec. 19, 1974.

      Thomas Kaiser, pro se.
    Ronald J. Morelli, Asst. County Atty., Mineóla, N. Y. (John F. O’Shaughnessy, County Atty., Nassau County, Natale C. Tedone, Louis Schultz, Senior Deputy County Attys., Mineóla, N. Y., of counsel), for defendant-appellee.
    Before FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   GURFEIN, Circuit Judge:

Thomas Kaiser, pro se, appeals from the grant of summary judgment dismissing his complaint against appellee William Cahn, District Attorney of Nassau County. The action is brought under 42 U.S.C. § 1983, with jurisdiction based upon 28 U.S.C. §§ 1331 and 1343. The Honorable Jacob Mishler, Chief Judge of the United States District Court for the Eastern District of New York, granted summary judgment under Fed.R.Civ.P. 56(b) on the ground that the claim for relief was barred by the statute of limitations, and, more particularly, in spite of certain tolling provisions of the New York Statute of Limitations. We affirm on the basis of a somewhat different analysis.

Kaiser was convicted, sentenced, and imprisoned on July 7, 1966 by the County Court of Nassau County to serve one- and-a-half to seven years on a conviction for the crimes of conspiracy to extort and attempted extortion and coercion. He remained in the County Jail until August 23, 1966 when he was released on bail on a certificate of reasonable doubt. He remained on bail during his direct appeals until July 9, 1969, a period just short of three years. His conviction was ultimately affirmed by the New York courts and the United States Supreme Court. 28 A.D.2d 647, 282 N.Y. S.2d 207 (2d Dept.), aff’d, 21 N.Y.2d 86, 286 N.Y.S.2d 801, 233 N.E.2d 818 (1967), aff’d, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274 (1969). It was only after the Supreme Court denied rehearing, 394 U.S. 1025, 89 S.Ct. 1622, 23 L.Ed.2d 50 (1969), that Kaiser reentered prison on July 9, 1969 to complete his sentence.

Kaiser brought this action for $500,000 in compensatory damages and $500,000 in punitive damages against the District Attorney who prosecuted him, on allegations that he was denied a fair trial because of the defendant’s malicious pretrial release to the press of evidence to be used at trial with inferences therefrom that Kaiser had underworld connections. This claim of unfair publicity was not pressed on the direct appeal. The claim was made in a collateral attack, however, during Kaiser’s imprisonment in a pro se petition for a writ of habeas corpus joined with a civil rights complaint filed on September 2, 1970. After that action and another action had been dismissed, appellant filed the present action on October 1, 1971, this time with the aid of assigned counsel.

In the absence of a federal statute of limitations the federal courts borrow the state statute of limitations applicable to the most similar state cause of action. Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280 (1895); U.A.W. v. Hoosier Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). That is true in federal civil rights actions. Swan v. Board of Education, 319 F.2d 56, 59 (2 Cir. 1963); Ortiz v. LaVallee, 442 F.2d 912 (2 Cir. 1971). We have held, in this Circuit, that the applicable statute of limitations in a federal civil rights case brought in New York is the three years provided by N.Y. C.P.L.R. § 214(2) — liability based on a statute. See Romer v. Leary, 425 F.2d 186 (2 Cir. 1970). Compare the cases in other circuits collected in Reed v. Hutto, 486 F.2d 534, 537 n. 2 (8 Cir. 1973).

Although the state statute of limitations most analogous to the civil rights claim is borrowed, the question of when the claim for relief accrued remains a question of federal law. Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605 (1941); Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947).

It could well be argued that the instant claim arose when the District Attorney issued the press releases before trial and that all the claimed damage was foreseeably caused by those acts. Since the gravamen of the claim, however, is the imprisonment itself upon a conviction arising from an allegedly unfair trial, we prefer to treat the subsequent sentence to imprisonment on July 7, 1966 as the cause of the action. Judge Weinstein had so held in a similar case involving pre-trial publicity, as Chief Judge Mishler did here, and we agree. United States ex rel. Sabella v. Newsday, 315 F.Supp. 333, 335 (E.D.N.Y.1970). Since the first complaint filed by appellant was on September 2, 1970, that complaint, as well as the subsequent complaints, was barred on its face by the applicable three-year statute.

The claim for relief accrued while appellant was imprisoned, and he is, therefore, entitled to the benefit of the tolling provision of the New York statute. Ortiz v. LaVallee, supra.

The tolling provision then applicable to prisoners provided in pertinent part:

“If a person entitled to commence an action is, at the time the cause of action accrues, . . . imprisoned on a criminal charge or conviction for a term less than life, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases . . . the time within which the action must be commenced shall be extended to three years after the disability ceases . . ..” N.Y.C.P.L.R. § 208.

The argument that the tolling provision applies only where New York law prevents an imprisoned felon from bringing suit must be rejected. We held in Ortiz v. LaVallee, that, even though the prisoner was not legally disabled from suing, we would recognize the practical difficulties prisoners face in instituting and prosecuting suits. The District Court’s conclusion to the contrary was erroneous. While we did not emphasize in Ortiz that the claim involved was civil rights claim, we have since held that even a total incapacity to sue imposed by the state would not bar the assertion of a Section 1983 damage claim in the federal court. Ray v. Fritz, 468 F.2d 586 (1972). See also Almond v. Kent, 459 F.2d 200 (4 Cir. 1972). Such a claim is subject, however, to the state statute of limitations, Swan v. Board of Education, supra, and its tolling provisions. Ortiz v. LaVallee, supra

The statute of limitations was tolled when Kaiser entered the Nassau County jail on July 7, 1966. See Ortiz v. LaVallee, supra. If he had remained imprisoned without interruption, the tolling period would have continued, and his complaint in September 1970 would have been timely filed. Kaiser did not remain in prison pending his appeal however. He was released on bail on August 23, 1966. If the release terminated the tolling period, only a month and a half — the time he had spent in jail — would be added to the three-year statute by operation of the tolling provisions, and his claim would still be untimely filed. It may be argued, however, that when Kaiser was reimprisoned after losing his appeal, the period of his second incarceration should be tacked on to his earlier tolling period which had suspended the statute of limitations. On this theory the statute would not have barred his complaint until August 23, 1969 — three years after his release — and the reimprisonment on July 9, 1969, more than a month before that critical date, would have stopped the running of the statute. Since the complaint was filed while appellant was still imprisoned and the beneficiary of the tolling provision, his complaint would be timely.

The New York courts have construed the tolling statute as prohibiting the tacking of disabilities. Once the prisoner is released, the benefit of the tolling statute is lost forever. A later incarceration will not retoll the statute. Gershinsky v. New York, 6 A.D.2d 964, 176 N.Y.S.2d 667 (3rd Dept. 1958), aff’d, 6 N.Y.2d 798, 188 N.Y.S.2d 190, 159 N.E.2d 681 (1959); Jordan v. New York, 56 Misc.2d 1032, 290 N.Y.S.2d 621 (Ct.Cl. 1968) (plaintiff free for eight months); Broadus v. New York, 61 Misc.2d 970, 307 N.Y.S.2d 479 (Ct.Cl.1972) (plaintiff free for ten months). And see Bussue v. Lankier, 337 F.Supp. 146 (S.D.N.Y.1972).

The New York authorities, it should be noted however, have dealt only with situations in which the plaintiff had been subsequently incarcerated on a different charge or for a violation of parole. We have found no specific New York authority on whether incarceration on the same charge after release on bail will retoll the statute. But see Bussue v. Lankler, supra, 337 F.Supp. at 148—149 and note 4.

Considering the purpose of the tolling provision — to mitigate the difficulties of suit while the plaintiff is a prisoner, Ortiz v. LaVallee, supra — freedom from restraint should normally end the tolling period. The reason for freeing the plaintiff has little relevance to the purpose for suspending the statute of limitations. Once the plaintiff is outside the prison walls he may pursue his lawsuit.

Yet we must take into consideration that applying New York doctrine literally might sometimes be unfair. Assume, for example, that the prisoner were on bail for two days and then had his bail revoked. We would have the duty in a civil rights case to find our own interpretation of the state statute under federal common law, since in Civil Rights Act cases, the statute of limitations goes to the remedy and not the creation of the right. See Bomar v. Keyes, 162 F.2d 136, 140-141 (2 Cir. 1947) (L. Hand, J.).

In determining the application of federal common law, we assume that the logic of the New York decisions cited would bar retolling in the case of a release on bail and subsequent reincarceration. The statute would have been tolled only from the July 7, 1966 date when Kaiser was imprisoned after sentence to August 28, 1966 when he was released on bail pending appeal. This period of a month and a half would not be enough to prevent the three-year statute from having run prior to the commencement of this action. In fact, the plaintiff was at liberty from August 23, 1966 to July 9, 1969 when he was imprisoned again after the Supreme Court denied rehearing, as we have seen. This period of freedom from actual imprisonment lasted almost three years.

We may in applying federal law to a claim based on a federal statute prevent a result that would substantially impair a valid federal interest. Thus a borrowed state statute of limitations may be tolled in conformity with federal doctrine where the right is the creature of federal statute, Holmberg v. Ambrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946), and in state court actions in admiralty where it is thought that a short state statute of limitations would defeat a coincident federal purpose. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296. See Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80 (2 Cir. 1961) (concealment). Thus, the federal rule in fraud has been applied to a state statute of limitations in bank assessment cases, Holmberg, supra, and the federal rule on concealment has been applied to a state statute of limitations in a claim under the Clayton Act (before Congress enacted the federal statute of limitations). Moviecolor, supra.

The reach of Holmberg v. Albrecht, supra, is not limited to suits in equity but applies to actions at law as well, as was convincingly demonstrated by Judge Friendly in Moviecolor, supra. We think that civil rights claimants, as well as seamen are entitled to, in the words of Mr. Justice Black “full benefit of federal law”. Garrett v. Moore-McCormack Co., 317 U.S. 239, 243, 63 S.Ct. 246, 87 L.Ed. 239 (1942).

In sum, we do not feel that we are necessarily bound by the state’s determination of when its statute of limitations is tolled where the question arises in a civil rights claim in the federal court.

Applying our own standard of whether a statute of limitations unduly impairs the federal interest sought to be enforced, we see no reason to hold on this appeal that the State rule against tacking disabilities should not be applied. Here appellant had almost three years of freedom within which to file and pursue his civil rights claim. It is true that the action might not have been susceptible to final decision on damages until the Supreme Court decided the appeal, but filing the complaint would have served notice on the defendant and enabled discovery and preliminary motions to proceed.

Affirmed.

      . § 1983 reads:

        “Civil action for deprivation of rights

      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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, suit in equity, or other proper proceeding for redress.”

      . The complaint alleges (Par. 8) that appellant was sentenced to prison on August 12, 1966 and imprisoned on that date. The opinion below supports the dates cited in the text.

      . Appellant argues that the claim did not accrue until his conviction was affirmed by the Supreme Court and he was remanded to a state prison. We do not agree. We have recently held, in another context, that a conviction, though the subject of an appeal, is nevertheless a conviction. See Roberson v. Connecticut, 501 F.2d 305 (2 Cir. 1974). There is similarly no policy reason for treating a conviction, subject to review, as a nullity.

      . It is argued that the disability statute speaks of “term of sentence” rather than “imprisonment” and that, therefore, the statute of limitations should be suspended during the whole “term of sentence” rather than the actual imprisonment. Kaiser was sentenced to imprisonment on July 7, 1966. At that time CPLR § 208 was already in effect, having been enacted in 1963. Its tolling provision was applicable to persons “imprisoned on a criminal charge or conviction for a term less than life.” The comparable civil disability statute at that time was still the old Penal Law Section 510. It provided that “[a] sentence of imprisonment in a state prison for any term less than for life . . . suspends, during the term of the sentence, all the civil rights of the person sentenced.” The disability extended throughout the term of the sentence rather than only during the imprisonment, Lehrman v. State, 176 Misc. 1022, 29 N.Y.S.2d 635 (Ct.Cl.1941); Hayes v. State, 50 N.Y.S.2d 492 (Ct.Cl.1944) except as certain classes of persons under sentence were exempted by amendments in 1946, 1950 and 1953. Assuming that a New York court would have dismissed an action by Kaiser in 1966, such disability would not have prevented his suing in the federal court for violation of Section 1983 rights. Ortiz v. LaVallee, supra; Ray v. Fritz, supra. In sum, the disability statute will not affect the prisoner’s federal rights to sue in a civil rights case, despite the normal determination of capacity to sue by state law. Fed.R.Civ.P. 17(b). Almond v. Kent, 459 F.2d 200 (4 Cir. 1972). The federal court will look to the state tolling statute on the assumption that whether the prisoner is under a state disability or not, the tolling statute will apply on its terms “imprisoned on a criminal charge” (emphasis added) rather than on “the terms of sentence” as used in the disability statute.