author: TUTTLE, Circuit Judge:

text:
    Alfredo G. PARRISH et al., etc., Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR et al., etc., Defendants-Appellees. ALABAMA BLACK LAWYERS ASSOCIATION et al., Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR, etc., et al., Defendants-Appellees.
    Nos. 73-3553, 74-1523.
    United States Court of Appeals, Fifth Circuit.
    Dec. 2, 1974.
    Opinion Withdrawn Feb. 20, 1975.
    See 509 F.2d 540.

      U. W. Clemon, Oscar W. Adams, Jr., Birmingham, Ala., Elaine R. Jones, Jack Greenberg, New York City, Solomon Seay, Jr., Montgomery, Ala., for plaintiffs-appellants.
    Truman Hobbs, Champ Lyons, Jr., William H. Morrow, Jr., Montgomery, Ala., for defendants-appellees.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   TUTTLE, Circuit Judge:

The Alabama Black Lawyers Association (ABLA) and eight named plaintiffs appeal the grant of summary judgment against them on all issues in their class action alleging racial discrimination by the Boards of Commissioners and Bar Examiners of the Alabama Bar Association in their policies and practices governing admission to the bar.

Briefly stated, the suit sought injunc-tive and declaratory relief, under 42 U. S.C. §§ 1981-1983 and 28 U.S.C. §§ 2201-2202, respectively, for a class defined as “all Black persons who have applied or will apply for admission to the Alabama Bar, or who would have so applied but for having been discouraged or prevented from doing so by the [defendants’] discriminatory practices” and who meet all valid non-discriminatory standards for admission. The gist of the complaint, which was filed October 31, 1972, is that the Alabama bar examiners unconstitutionally discriminated against black applicants by identifying their supposedly anonymous examination papers and then grading them lower than white applicants who displayed equal proficiency. The complaint also alleged that the bar examination — which then was exclusively written essay, “timed and closed-book” — is “unvalidated” and not sufficiently “job-related”, and thus unconstitutional because it fails blacks in disproportionately high numbers compared to whites.

Shortly after the complaint was filed, each party filed several motions. Most importantly, the defendants moved to dismiss plaintiffs Eddie Jones, Thomas W. Gray and the ABLA for lack of standing, and the plaintiffs moved that the trial judge recuse himself pursuant to 28 U.S.C. § 144. The trial judge granted defendants’ motion to dismiss Jones, Gray and the ABLA, but refused —after a hearing had been held and affidavits filed — to recuse himself.

Both parties undertook extensive discovery. Plaintiffs received nearly 150 pages of answers to interrogatories from defendants and took two lengthy depositions from members of the Board of Bar Examiners. Defendants received answers to interrogatories from each of the named plaintiffs. None of the discovery revealed specific instances where the anonymity of the examinees had been compromised; at most, the plaintiffs swore that there were one or two instances when an examiner could have seen an examinee’s test number. The plaintiffs’ case thus boiled down to a proof of statistics. Statistics produced during the litigation showed, for example, that in the last ten bar examinations the passing rate for blacks had been 32% while it had been 70% for whites. Furthermore, in a state whose population is 25% black, the number of black lawyers is less than 1%.

Defendants moved for summary judgment on April 2, 1973, but the trial court withheld a ruling for over four months in order to give plaintiffs “ample opportunity to obtain by discovery facts to be used in traversing the motion”. Plaintiffs accomplished all of their desired discovery during this period, with one exception: defendants failed to produce copies of all answer sheets for the February 1973 bar examination. Defendants objected to producing these documents on the grounds that they were not relevant and material to the complaint. Plaintiffs filed a motion on May 28, 1973, to compel production.

Without specifically ruling on this motion, the trial court entered summary judgment for defendants on all issues on August 21, 1973. The court found that there was no material issue of fact between the parties and held that “under the circumstances . . . the disparity in percentage of failures among blacks as compared to whites has little weight and fails to make out a prima fa-cie case sufficient to realign the burden of proof so as to require the Defendants to establish that the exams are not discriminatory or so as to require them to validate the exams.”

With respect to plaintiffs’ other main contentions, the court held that the defendants had a compelling state interest to identify attorneys, and thus that requiring applicants to submit photographs of themselves prior to taking the examination does not “violate their constitutional rights”; however, the court declined to consider the constitutionality of procedures (particularly a personal interview) applied to applicants petitioning to take the examine for a fourth time, following three attempts as of right, because “no Plaintiff in this lawsuit has the standing to raise the question”.

Appellants’ points of appeal are

1) that the trial judge applied an erroneous legal standard in refusing to re-cuse himself;

2) that plaintiffs Jones, Gray and the ABLA should not have been dismissed from the suit for lack of standing;

3) that summary judgment was inappropriate, because discovery was incomplete and there were material issues of fact;

4) that the unvalidated bar examination, which fails blacks in disproportionately high numbers, is insufficiently job-related to be constitutional;

5) that the requirement of a photograph, as part of the application to take the bar examination, is unconstitutional;

6) that the procedures governing petitions to take the bar examination for a fourth time are arbitrary and capricious, and thus violate the appellants’ right to due process of law.

Because we conclude that the appellants should prevail on their first ground, we discuss only that and the question relating to the parties to appeal.

I. PARTIES TO APPEAL

Before discussing appellants’ contentions, it is necessary to dispose of a jurisdictional objection raised by the ap-pellees in their brief. Appellees argue that only appellants Alfredo Parrish and Henry Thompson are properly before this Court, because the plaintiffs’ notice of appeal and amended notice of appeal expressly named only Parrish and Thompson. However, although Parrish and Thompson are the only parties named in the text of the notices, the captions of the notices named “ALFREDO G. PARRISH, ET AL., Plaintiffs.”

The Federal Rules of Appellate Procedure require that “The notice of appeal shall specify the party or parties taking the appeal.” Rule 3(c). The objective of this provision, and of Rule 3 generally, is two-fold: to notify the Court of the taking of an appeal, and to notify the opposing party of the taking of the appeal. Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir. 1974). There can be no doubt that the caption, if not necessarily the text, put defendants on notice that all of the plaintiffs intended to take appeal. Appellees have not shown that they were prejudiced or mis-led in any way by appellants’ technical non-compli-anee with Rule 3(c).

Although some other circuits may take a much more formalistic view, this Court has long held that irregularities in form or procedure in filing a notice of appeal will be disregarded, when the interests of substantive justice requires it, as long as there is “substantial compliance with the rules.” Des Isles v. Evans, 225 F.2d 235, 236 (5th Cir. 1955). See also Crump v. Hill, 104 F.2d 36, 37-38 (5th Cir. 1939); Jones v. Chaney & James Construction Co., 399 F.2d 84, 86 (5th Cir. 1968); Cobb v. Lewis, supra, 488 F.2d at 44-46. As we said in Jones, 399 F.2d at 86:

“The notice of appeal should not be used as a ‘trap for unwary draftsmen’, Wright, Federal Courts, § 104 at 406 (1963); and decisions on merits should not be avoided on the basis of ‘mere technicalities’, Foman v. Davis, (1962) 371 U.S. 178, 181 [83 S.Ct. 227, 9 L.Ed.2d 222].”

Therefore, we hold that there was adequate compliance with Rule 3(e) to put the defendants on notice that all plaintiffs intended to appeal, and that all eight named plaintiffs and the ABLA are properly before this Court. Accordingly, we proceed to the merits.

II. STANDARD FOR RECUSAL

The first point raised by appellants is that the trial judge applied an erroneous legal standard in refusing to recuse himself after an affidavit had been filed pursuant to 28 U.S.C. § 144. Section 144 provides in full:

“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
“The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”

The procedure prescribed by section 144 was not strictly followed in this case. It appears from the record that counsel for the appellants and the trial judge informally discussed the question of recusal over a month after the complaint was filed. The court later convened a hearing on December 22, 1972, to discuss the question. The judge permitted plaintiffs’ counsel to question him at length at this hearing, after stating to counsel:

“Heretofore I had felt that a judge should recusé himself very quickly because it made the court appear more fair, but there are other obligations the court owes and I am afraid that I shan’t recuse myself but I want to give you an opportunity to put anything on record that you would like to put on record.”

The section 144 affidavit was not filed until January 19, 1973. Without entering a formal order, the trial judge concluded that he should hear the case. Since it is apparent that the facts recited in the affidavit were developed to some extent from the preceding hearing, it is necessary to consider both the affidavit and the hearing in determining whether legally sufficient facts were presented to warrant recusal.

The affidavit was filed by plaintiff-appellant Thompson, who alleged two facts and reasons for his belief that the trial judge, Judge Robert E. Varner, had personal bias and prejudice in connection with the proceedings:

1) that while Judge Varner was President of the Montgomery County Bar Association two years ago, the Association had a clause in its by-laws barring black members and that the judge never made any effort to invite black lawyers whom he knew to join;

2) that Judge Varner was acquainted with several defendants in the suit and all of defendants’ counsel, and that he said he did not believe that any of the defendants whom he knew would intentionally misrepresent any of the matters related to the lawsuit.

In support of his affidavit, Thompson appended a transcript of the preceding hearing.

Both of the grounds for recusal set out in the affidavit were fully developed at the hearing. Judge Varner stated that he first became aware of the “whites only” clause in the by-laws of the Association when it was mentioned in a newspaper article speculating on the possibility of his appointment to a federal judgeship. Counsel for the appellants, Mr. demon, asked the judge if he then recommended removal of the clause, and the following dialogue ensued:

“THE COURT: My recollection is that I did not recommend anything but that I appointed a committee for a consideration of renovation of . . . the by-laws. . . . Frankly, when I looked at it I was appalled how out of date the whole thing was, not just to racial matters. ... I believe there were several things in the . . . by-laws . . . that drew my attention and really shocked me. And I did not make any recommendation about it but I did appoint a committee to consider it, and the by-laws, as I recall it, were changed. .
“MR. CLEMON: After you appointed that committee did it make a report during your tenure in office? “THE COURT: Oh, yes.
“MR. CLEMON: It did?
“THE COURT: Yes.
“MR. CLEMON: Do you recall what recommendations if any were made with respect to the racially exclusionary clause?
“THE COURT: Yes. It was removed.
“MR. CLEMON: During your tenure as president?
“THE COURT: Well, I am speaking from recollection. It may have been after my tenure; but I think it was during my tenure. I am not sure.”

During other discussions at the hearing, Judge Varner stated that he personally knew ten of the thirteen defendant bar examiners. He said that of the ten, he knew three only “slightly”. He added that he did not know three of the other examiners at all. He admitted that he has known defendant Reginald Hamner, who is secretary of the bar association and of the board of bar examiners, “ever since he became associated with the bar association.” Mr. Clemon asked what effect these friendships or acquaintanceships would have on the judge’s conduct of the trial:

“MR. CLEMON: Judge, do you think that in the event there was testimony — conflicting testimony involving a witness whom you didn’t know and one of the defendants whom you have indicated that you do know, slightly or otherwise, that there might be any problem in your attaching more weight to the testimony of the person that you know rather than the person that you did not know ?
“THE COURT: Well, it would depend on who the person I did not know, maybe, and what the evidence shows. I will say this, of the people I know here, I have no reason to think any of them would intentionally misrepresent anything. I am sure there will be some mistake in recollection, and certainly I would expect most witness to make a few mistakes in their recollection if the testimony becomes complicated.
“MR. CLEMON: Yes, sir.
“THE COURT: But I do not think I would have any prejudice or bias about that matter. Certainly — or any other matter for that matter, frankly. I have thought about the matter thoroughly, and I don’t think that there is any reason why I can’t fairly judge this case.”

At another point, Mr. Clemon asked Judge Varner whether his friendship for over twenty years with former bar association secretary John Scott would influence the weight to which he might attach to Scott’s testimony. Judge Varner replied: “I don’t think so. I will say this, I think Mr. Scott is an honorable man but I don't think his memory is infallible. I think he would try to tell you the truth in his answers. But if he appeared to evade I think I could detect it.”

Thus, in summary, we have a challenge to the judge assigned to try this ease alleging discrimination on account of race in the grading of bar examinations on the basis of the following factual setting: the lawyer for the plaintiffs and counsel for the defendants had held conversations off the record in the judge’s chambers, apparently discussing the doubts that were in the minds of plaintiffs. At this time no affidavit under section 144 had been filed. In effect, plaintiffs were undertaking to develop a basis for determining whether to file such an affidavit. The hearing conducted was in the form of questions and answers put to the judge by Mr. demon, counsel for the plaintiffs. This hearing developed the fact that the judge had been president of the Montgomery Bar Association shortly prior to being appointed to the bench and that at the time the rules of the Association forbade admission of black lawyers. When comment had been made in the public press about this fact and of Judge Varner’s being considered for appointment to the United States Court, he appointed a commission to review the bar association by-laws, but gave no direction or suggestion that the racial restrictions be changed. They were subsequently changed, at a time which the judge thought was during his term of office, but as to this he was hot certain. Judge Varner was acquainted with ten of the thirteen defendants who were members of the Board of Bar Examiners, three only slightly and several on a basis of what he considered friendship. Three of them he did not know at all. When asked as to the effect of his acquaintance or friendship with defendants in the event of a possible conflict in testimony in the anticipated hearings, Judge Varner, by the language quoted above, indicated a strong feeling of confidence in the veracity and trustworthiness of his friends. When asked expressly with respect to Mr. Scott, who had previously been secretary of the commission, and thus the one person who had custody of all of the documents, he expressed similar confidence in his likely credibility, noting that “if [Scott] appeared to evade I think I could detect it .”

Upon subsequently filing the affidavit, plaintiffs attached a transcript of the hearing before Judge Varner, so that we consider the section 144 affidavit to include all of the facts which are recited above. Interestingly enough, by the time the affidavit was filed in January, 1973, Judge Varner had, in effect, already decided the issue. For, as noted above he stated, before the facts were developed, “I am afraid that I shan’t re-cuse myself but I want to give you an opportunity to put anything on record that you would like to put on record.” This sounds very much as though he was intending to permit the plaintiffs to build up a record for appeal, having already decided the matter on the merits against recusing himself. This statement, having been made prior to the filing of the affifavit, must be considered as one of the “facts and reasons for the belief that bias or prejudice exists” within the language of section 144.

Entirely aside, however, from the apparent prejudgment of the issue just mentioned, we conclude that the other facts stated in the affidavit, and supported by the testimony of the hearing, taken as true, as they must be, for the purpose of the judge’s consideration of the motion, Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921) are legally sufficient to give “fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger, supra, 255 U.S. at 33-34, 41 S.Ct. at 233.

The applicable standards for determining the legal sufficiency of the affidavit provided under section 144 are definitively set out in the Berger case. The Court at 32 of 255 U.S., at 232 of 41 S.Ct., quoted from an opinion of this Court in Henry v. Speer, 201 F. 869 (5th Cir.) which said:

“Upon the making and filing by a party of an affidavit under the provisions of section 21 [predecessor of section 144], of necessity there is imposed upon the judge the duty of examining the affidavit to determine whether or not it is the affidavit specified and required by the statute and to determine its legal sufficiency. If he finds it to be legally sufficient then he has no other or further duty to perform than that prescribed in section 20 of the Judicial Code. He is relieved from the delicate and trying duty of deciding upon the question of his own disqualification.” (Emphasis supplied).

The Court then explains what it means by “legal sufficiency”. Speaking again of the definition in Henry v. Speer, supra, the Court said at 33-34 of 255 U.S., at 233 of 41 S.Ct.:

“It is a precaution against abuse, removes the averments and belief from the irresponsibility of unsupported opinion, and adds to the certificate of counsel the supplementary aid of the penalties attached to perjury. Nor do we think that this view gives room for frivolous affidavits. Of course the reasons and facts for the belief the litigant entertains are an essential part of the 'affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” (Emphasis supplied).

The Berger case was decided by the Supreme Court on a certified question from the Court of Appeals for the Seventh Circuit, and was designed expressly and explicitly to answer the very question that is presented here. The language of the section clearly suggests that the belief of the affiant if supported by the facts he or she swears to, is crucial and thus that the test of the affidavit’s legal sufficiency should be whether the facts alleged could reasonably lead to the belief that the affidavit says exists in the minds of the plaintiffs. Berger supports this approach. See Note, Disqualification of Judges for Bias in the Federal Courts, 79 Harv.L. Rev. 1435, 1446-47 (1966). It is true that some post-Berger cases have adopted a different test, one that would virtually require that the facts — taken, of course, as true — are sufficient to demonstrate a personal bias or prejudice in fact on the part of the trial judge for or against one of the parties.

The only ease in this Circuit that discusses the matter is Simmons v. United States, 89 F.2d 591 (5th Cir., 1937), upon which the appellees here rely. In Simmons, the affiant alleged that the trial judge had represented a potential witness and the relative of a potential witness, and that the trial judge was “friendly [sic] inclined” toward them. The Court held: “However, it is settled that an affidavit of disqualification under the section must state facts showing the personal prejudice of the judge against the defendant and not baseless conclusions.” 89 F.2d at 592. This formulation of the rule is correct, as far as it goes. However, it fails to distinguish between testing the facts to see if they 1) support the reasonableness of the af-fiant’s belief, or 2) reasonably support a determination that bias or prejudice in fact exists. Because the language in Simmons does not rule out the possibility of the first interpretation, we therefore think there is no precedent in this Circuit which holds that the affidavit must be measured for sufficiency by a standard of actual, rather than the existence of a reasonable belief in, bias or prejudice on the part of the trial judge. Thus, Simmons fails to provide the necessary guidance for determining completely the issue before us.

More instructive, it seems to us, as to the attitude that should be taken with respect to the treatment of a claim of bias or prejudice is the decision and language of this Court in United States v. Columbia Broadcasting System, Inc., 497 F.2d 107 (5th Cir. 1974). Although that case dealt with the trial by a judge who had ordered contempt charges filed against the respondent, the guarantee to a party of a fair and impartial tribunal, as stated in that case are no different than they are here. The court said at 109:

“The recondite niceties of contempt law coupled with the strange milieu of a judge passing on the clarity of his own orders, which had to be substantiated largely by his own legal staff, should make us particularly sensitive to the demands of justice, and more particularly, to the appearance of justice. The guarantee to the defendant of a totally fair and impartial tribunal, and the protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the palladium of our judicial system/ (Emphasis supplied).

We conclude that a trial court cannot be free from “any hint or appearance of bias” unless a party’s sworn belief of the existence of bias, supported by substantial facts, is of primary concern. Thus, we reject as invalid the so-called objective test.

In summary, it was not the function of the trial court to weigh the facts, largely developed by his own testimony when relating his relationships with the Montgomery Bar Association and with some ten of the defendants. Under the standards long ago set down in this Circuit, and adopted by the Supreme Court in Berger, his only function under section 144 was to determine whether the facts asserted gave “fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” [Emphasis supplied.] As stated in Henry v. Speer, supra, and reiterated by the Supreme Court in Berger, supra, “He is relieved from the delicate and trying duty of deciding upon the question of his own disqualification.” 255 U.S. at 32, 41 S.Ct. at 232.

The judge’s preliminary statement that he “was afraid that I shan’t recuse myself” and his repetition twice subsequently, when commenting on the problem arising from his friendship with some of the defendants, of his opinion that he was neither biased nor prejudiced and that there was nothing to prevent him from trying the case fairly, all as set out above, make it clear beyond a doubt that the court believed it was his duty to decide the issue as to whether or not he was actually biased, rather than to restrict his consideration to the question whether there was a reasonable basis alleged for the belief of the plaintiffs or even that there was a reasonable basis for the charge that he was in fact prejudiced for or against one of the parties.

While we deeply regret the necessity of further proceedings in a case which has been argued fully on the merits in this Court, we are required to give proper attention to the appellants’ initial contention that the trial court used an improper standard in determining whether he should recuse himself. Having concluded that a mistaken standard was used, in that the trial judge did not address himself at all to the question of the sufficiency of the allegations, we conclude that the judgment must be reversed. Moreover, we are satisfied that the affidavit and the supporting facts, as here outlined, do meet the standard of section 144 and that under the circumstances the trial judge had no course of action but to follow the procedure set out in the statute, which says that under such circumstances “such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.”

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . Since July 25, 1973, Alabama lias used tlie Multistate Bar Examination (MBE) as part of its own bar examination. The MBE is an “objective,” multiple-choice type of test.

      . Strictly speaking, the plaintiffs’ appeal is also technically defective because it is taken from the order of the trial court and not from a judgment “set forth on a separate document” as required by the Federal Rules of Civil Procedure, Rule 58 (as amended July 1, 1963). This defect is not fatal: we assumed jurisdiction in identical circumstances in Markham v. Holt, 369 F.2d 940, 942 (5th Cir. 1966).

      . Cook and Sons Equipment, Inc. v. Killen, 277 F.2d 607, 609 (9th Cir. 1960); Van Hoose v. Eidson, 450 F.2d 746, 747 (6th Cir. 1971). Compare Knuth v. Erie-Crawford Dairy Corp. Association, 395 F.2d 420, 427-428 (3rd Cir. 1968).

      . The affidavit, which includes the requisite certificate of good faith signed hy one of plaintiff-appellant’s counsel, reads in pertinent part:
      “3. The facts and reasons for the belief that such personal bias and prejudice exist are as follows:
      a. The instant action complaints, inter alia, that the defendants maintain a policy of excluding blacks from the practice of law in the State of Alabama. The Honorable Robert E. Varner is presently a member of the Montgomery County (Alabama) Bar Association; and when he served as President of that Association two years ago, black lawyers were excluded from membership in the said association under terms of its by-laws. The Honorable Judge Varner was then acquainted with five or six black lawyers who then practiced in Montgomery; but he never made an effort to invite them to join the Association. It was only after the aforesaid judge became interested in a federal judgeship that he, as president of the Montgomery County Bar A-sociation, appointed a committee to revise the said by-laws; and the record is unclear as to whether the ‘white only’ membership clause of the Montgomery County Bar As-505 F. 2d — 2 sociation was removed during his tenure as president of the aforesaid association, b. None of the plaintiffs in this case are personally acquainted with the Honorable Robert E. Varner. The said judge considers the defendant commissioner Ilill as a personal friend; he is a friend of Reginal Hamner, one of the chief defendants in the case; he is a friend of John Scott, defendant Hamner’s predecessor in office and proposed to be called by the jdaintiffs as an adverse witness ; he is also a friend of counsel for all of the defendants. Further the said judge is personally acquainted with many of the other defendants in this cause. Although the testimony of the witnesses at the trial of this cause is expected to be conflicting in nature, the aforesaid Judge Varner has indicated that he does not believe that any of the defendants with whom he is acquainted would intentionally misrepresent any of the matters related to this lawsuit. Thus, plaintiffs sincerely believe that where the judge is called upon to make credibility choices throughout the trial, as he will be, he will attach undue weight to the testimony of his friends and acquaintances, all to the detriment of the plaintiffs and the class which they represent.”

      . Mr. Ilamner, as secretary of the bar association and the Board of Bar Examiners, was the official in whose custody were all of the papers relating to the bar examinations. He had the application with pictures attached ; he assigned the identifying numbers to the examinees; and lie received the completed examinations before distributing them to the examiners for grading. lie did not testify in person, but. submitted an affidavit to the effect that lie did not take advantage of this potential means of identifying the examinees by race.

      . Mr. Koott was secretary of Hie state bar association and the Board of Bar Examiners until approximately four years ago, when he was replaced by Mr. Ilamner. In those capacities, Mr. Scott performed the same duties as outlined in footnote 5, supra. Mr. Scott’s testimony would have been relevant to the plaintiffs’ assertion that the defendants maintained a longstanding practice and policy of racial discrimination in procedures governing admission to the bar.

      . The transcript of the December 22nd hearing shows the following:
      “Gentlemen, you may want to have a seat at. counsel table. I asked my court, reporter to stay here this morning because, Mr. Clemon, (counsel for plaintiffs) I thought perhaps you would like to put some elements of our conversation on the record in regard to your question of whether or not I should recuse myself. I will have to say that I decided in cases earlier this week that these courts have been very reluctant about letting judges recuse themselves and I have really changed my attitude about it in the last two or three weeks. Heretofore, 1 had felt that a judge should recuse himself very quickly because it made the court appear more fair, but. there are other obligations that the court owes and I am afraid that I shan’t recuse myself but. I want to give you an opportunity to put anything on record that you would like to put on record.” (Emphasis supplied).

      . It is of significance that none of these persons appeared to testify personally. The motion for summary judgment was based solely upon their affidavits. There, of course, were no opportunities to make any credibility choices by use of the normal standards available to a trial judge.

      . I. e., “The affidavit shall state the facts and tlie reasons for the belief that bias or prejudice exists . . . (Emphasis added).”

      . “A formulation ... in keeping with the purpose of the statute would require only that the facts alleged must justify a reasonable apprehension on the part of the affiant that the judge may be biased [Footnote omitted). This formulation shifts the emphasis from the judge’s actual state of mind to the reasonableness of the litigant’s fear, an emphasis at least supported, and possibly required, by the statutory language »

      . See Note, Disqualification of a Federal District Judge for Bias — the Standard under Section 144, 57 Minn.L. Rev. 749, 758 (1973).

      . See footnote 11, supra.


source: Caselaw Access Project

author: BOOTLE, District Judge:

license: Public Domain

text:
    Earl COLLINS, Petitioner-Appellant, v. Calvin E. GREEN, Warden, Chatham County Correctional Institute, Respondent-Appellee.
    No. 74-1367.
    United States Court of Appeals, Fifth Circuit.
    Dec. 9, 1974.

      John H. Ruffin, Jr., James E. C. Perry, Augusta, Ga., for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., David J. Bailey, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
    Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   BOOTLE, District Judge:

Earl Collins, along with Edward Kinsey and John Paschael, was indicted for armed robbery committed on July 13, 1971. After initially pleading not guilty on October 6, 1971, Collins changed his plea to guilty on October 18, 1971; on the same day he was sentenced to life imprisonment.

In February 1973, Collins filed a petition for habeas corpus in state court alleging that he “was partially interviewed by one attorney and on the day of his trial another attorney represented him and induced petitioner to enter a plea of guilty in order to secure a probated sentence” which he never would have done “had he not been promised a probated sentence.” After an eviden-tiary hearing, the superior court judge found that the guilty plea had been voluntarily entered and that Collins had been represented by competent counsel. The writ was denied, and the Supreme Court of Georgia affirmed. Collins v. Hicks, 230 Ga. 601, 198 S.E.2d 317 (1973). Collins then filed a petition for habeas corpus relief in federal court alleging that his guilty plea was induced “by an attorney who was neither retained nor court appointed.” The district court in its order granting summary judgment for Warden Green felt that there had been an apparent change of theory from that advanced in the state habeas corpus petition (construed by the district court as pleading ineffective assistance of counsel) and that advanced in the federal habeas corpus petition (construed by the district court as pleading lack of counsel). In denying relief, the district court found that a full and fair evidentiary hearing by the state superior court had resolved Collins’ factual claims. The court also concluded that since a material difference existed between the theories advanced in state court and federal court in regard to representation and since the state court had not determined the issue of non-representation, state remedies had not been exhausted and a federal court could not consider that question.

Under 28 U.S.C. § 2254 when there has been a hearing on the merits of a factual issue in a state court of competent jurisdiction wherein the applicant for the writ and the state or an agent thereof were parties, the determination of that factual issue — evidenced by a written finding — shall be presumed correct unless the applicant shows certain factors to have been present. The petitioner has not shown any of the factors enumerated in 28 U.S.C. § 2254(d) which would rebut that presumption. Consequently, under 28 U.S.C. § 2254(d) “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” We find that the petitioner has not met that burden, and we affirm the granting of summary judgment. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Evidence adduced at the state habeas corpus hearing fully supported the finding that the guilty plea was voluntarily and knowingly entered. Collins assured the court at the time he pleaded guilty that he understood the meaning and consequences of a guilty plea, that the plea was made of his own free will and accord, that he had not been promised a lesser sentence or easier treatment as an inducement for the plea, that he had discussed the ease with his attorneys, and that he was guilty as charged.

The troublesome aspect of this case springs from the fact that three different attorneys had some contact with Collins. Hinton Pierce was appointed to represent Collins and was with him when he entered his plea of not guilty; Leonard Tuggle and Albert Dallas were with Collins and addressed the court on his behalf when he pleaded guilty and was sentenced. Collins’ argument that his plea was induced “by an attorney who was neither retained nor court appointed” results from the fact that Pierce contacted Tuggle and asked him to handle the case. There was some difficulty in recalling the precise circumstances surrounding the guilty plea and the trial of Collins’ two co-defendants, but this results from the fact that when Tuggle gave his deposition he had not refreshed his memory of the events. Nevertheless the transcript clearly shows that Collins had representation by both Tuggle and Dallas when he pleaded guilty.

Although it is unfortunate that the imposition of a life sentence on Collins did not make a more lasting impression on his attorneys, that is no justification for granting habeas corpus relief. This court prefers to rely upon the record made when the plea was entered rather than upon the faulty memory of the attorneys several months later. That record shows that both Tuggle and Dallas were with Collins when he pleaded guilty and that they explained to him his rights and the consequences of his guilty plea. Collins assured the court that his plea was made of his own free will and accord.

When a person indicates a desire to enter a guilty plea, the duty of counsel is limited to ascertaining whether the decision so to plead is voluntarily and knowingly made. Howard v. Beto, 466 F.2d 1356 (5th Cir. 1972); Lamb v. Beto, 423 F.2d 85 (5th Cir. 1970), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970). The fact that Tuggle was not directly appointed by the court or retained by Collins does not gainsay the fact that Collins had competent counsel. Thus, Collins has not shown by convincing evidence that the state court’s determination that he had competent counsel was erroneous. For an attorney to render effective and competent representation there is no requirement of a ceremonial court appointment or a formal contract between attorney and client. Here the court appointed Pierce; Pierce secured the services of Tug-gle ; and Tuggle provided competent representation.

The district court’s feeling that Collins had changed his theory from ineffective assistance of counsel to lack of counsel is simply a misanalysis of Collins’ petition. The argument that his plea was “induced by an attorney who was neither retained nor court appointed” is not an argument of non-representation but merely concerns the standing, conduct, and competency of an attorney not formally appointed or retained. As discussed earlier, this issue was properly considered in the state habeas corpus proceeding. A review of the pleadings has convinced this court that there was not a material difference between the theory advanced in the state court and that advanced in federal court.

Collins’ counsel in this court suggests that there was a conflict of interest on the part of Messrs. Tuggle and Dallas in that they represented Collins’ two co-defendants. We cannot rule upon that suggestion. It was not made in the state habeas corpus proceeding, and Collins made no attempt to raise it in the district court. It could not have been urged in the district court because of failure to exhaust remedies available in the state courts. As was stated in Hairston v. Alabama, 465 F.2d 675, 679 (5th Cir. 1972),

[TJhis Court is committed to the proposition that the responsibility of determining compliance with constitutional standards ought first to be on the state concerned so that state post-conviction facilities should be fully exploited with [Georgia's] having been afforded the opportunity of testing out the claim . . . . [Footnote omitted.]

Any such claim of constitutional imperfection must be specifically made so as to alert the state court to its responsibility.

[E]aeh independent claim of denial of a constitutional right must be presented to the state court before it can be considered by a federal court, and it is not enough that other claims have been presented to the state court. . The specific charges of misconduct of plaintiff’s attorney find no counterpart in the general allegations previously presented in habeas corpus applications to the state courts. Such matters especially should be investigated and passed on in the first instance by state authority.
Johnnene v. Graham, 138 F.Supp. 542, 543-544 (D.Utah 1956) [citations omitted].

See also Tompa v. Virginia, 331 F.2d 552 (4th Cir. 1964). The claim that one’s attorney was laboring under a disqualification of conflict of interest is of such consequence, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and is so discrete when made in a federal habeas corpus proceeding challenging a state court conviction as to require that it first be specifically considered by the state court.

The evidence adduced in the state habeas corpus proceeding did not show or even indicate a conflict of interest. The evidence was not even directed at that issue. The mere fact that an attorney represents multiple defendants does not establish conflict. United States v. Pinc, 452 F.2d 507 (5th Cir. 1971); Gardner v. Wainwright, 433 F.2d 137 (5th Cir. 1970).

Without prejudice to Collins’ right to seek x-elief in the courts of Georgia, if he so desires, with respect to his claim of conflict of interest, the district court’s denial of Collins’ petition for habeas corpus is affirmed.

      . Mr. Tuggle iu a deposition taken almost eleven months -after the plea was entered testified as follows:
      Q. Did [Ilinton Pierce 1 proceed with the case after being appointed?
      A. No.
      Q. Why didn’t he proceed with it?
      A. I forgot whether lie was sick — or on leave of absence, or something. And due to that fact . . . well, I believe there was three of them [i.e., defendants!. And Ilinton Pierce called me about it too, and asked me if I would help Buddy Dallas with it, and I agreed.
      Q. Did Mr. Pierce tell you that he was appointed to the case?
      A. lie did.
      Q. And wanted you to work on it for him?
      A. He did.
      Q. But Mr. Pierce asked you to handle it in his place?
      A. Yes.

      . In the deposition he states :
      I haven’t refreshed my memory on it, and at that same session of Court thei-e were three or four robbery cases; and there were one or two pleas; and there were some trials. Now I don’t know whether [Collins] entered a plea, or lie was one of the ones that was tried for it. There were some that entered pleas, and others tried in their cases. But I haven’t refreshed my memory, so I don’t know.
      Tuggle, along with Dallas, was an attorney in the trial of Collins’ two co-defendants, Tuggle representing Kinsey, and Dallas representing Pascliaol. There was some confusion or faulty recollection as to who was lead counsel. It was apparently a team effort. Tuggle’s deposition says:
      [The court] gave leeway to both attorneys to question any of the witnesses, and we usually did. It’s kind of unusual for him to do. You usually have a leading attorney, and the other one advises, and so forth. But in this particular case, we both asked questions.
      This accounts for Tuggle’s troublesome statement by deposition that he was assisting Mr. Dallas and for his answer “I would think so” to the question, “Would you say that Mr. Dallas was the leading counsel?”


author: WISDOM, Circuit Judge:

text:
    Charles P. McCAWLEY, Plaintiff, v. OZEANOSUN COMPANIA, MARITIME, S.A., Defendant-Third-Party Plaintiff-Appellee, v. GULFWIDE STEVEDORING CORPORATION, Third-Party-Defendant-Appellant.
    No. 73-3406.
    United States Court of Appeals, Fifth Circuit.
    Dec. 9, 1974.

      Thomas W. Thorne, Jr., New Orleans, La., for appellant.
    J. Dwight LeBlane, Jr., Robert B. Fisher, Jr., New Orleans, La., for appel-lee.
    Jerome P. Halford, Metairie, La., for McCawley.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   WISDOM, Circuit Judge:

Charles McCawley, a longshoreman employed by Gulfwide Stevedoring Company, fell and injured himself aboard the M/V Bremen on the morning of August 8, 1970 while the vessel was docked at the St. Andrew Street Wharf in New Orleans. McCawley brought suit against Ozeanosun Compañía Maritime, the vessel’s owner, alleging that the accident was caused by the unseaworthiness of the ship and the negligence of the shipowner. Ozeanosun, in turn, filed a third-party complaint seeking indemnification from Gulfwide for any sum for which it might be liable to McCawley on the theory that the stevedore’s employer breached its warranty of workmanlike performance. This third-party complaint completed the familiar longshoreman-shipowner-stevedore triangle. See Seas Shipping Co., Inc. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 and Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. The 1972 Amendments to the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C. § 901 et seq., abolished the harbor front workers’ right of action based upon the doctrine of unseaworthiness, but those amendments are not applicable to McCawley’s accident since it occurred before they were enacted.

Before trial in this case, Ozeanosun made an offer of settlement that McCawley accepted. The district court entered judgment in McCawley’s favor for $75,000, subject to Gulfwide’s preferential lien for compensation benefits it had paid to McCawley in the amount of $5,211.51. Ozeanosun’s claim for indemnification was then tried to the court. The district court, applying the tests set forth in Waterman Steamship Co. v. David, 5 Cir. 1965, 353 F.2d 660 and in Garner v. Cities Service Tankers Corp., 5 Cir. 1972, 456 F.2d 476, found (1) that'Gulfwide had breached its warranty of workmanlike performance, (2) that this breach proximately caused the accident, and (3) that the shipowner was not guilty of conduct sufficient to preclude indemnity. The court therefore held that Ozeanosun was entitled to indemnification.

For purposes of this appeal, Gulfwide concedes that the trial court’s finding that the stevedore breached its warranty (WWLP) is not clearly erroneous. Gulfwide contends, however, first that the trial court failed to make sufficient findings for purposes of review and in fact “apparently adopted” an erroneous standard for measuring “ship conduct sufficient to preclude indemnity and the factors to be considered in determining whether the shipowner was guilty of such conduct”. Although the trial court specifically stated that it applied the Waterman test to the facts, Gulfwide argues that the court would have found conduct sufficient to preclude indemnity only if the shipowner had physically restrained or attempted to restrain the stevedores from leaving the hazardous area. Second, Gulfwide argues that the trial court’s award of attorney’s fees and costs should be reversed.

These arguments have no merit. We affirm.

I

In July 1970, the M/V Bremen transported a cargo of raw sugar from the Fiji Islands to the Port of New York. This cargo filled all five hatches and was discharged in New York during a four-day period by means of shore-based cranes with grab-buckets. A considerable amount of raw sugar fell on the main deck of the vessel. The New York stevedore attempted to remove the raw sugar from the deck, but this effort was unsuccessful.

The M/V Bremen arrived in New Orleans in the afternoon of August 7, 1970. On three occasions during the voyage from New York, the ship’s crew attempted unsuccessfully to remove the sugar residue from the deck. The crew washed the deck twice at sea and once on the Mississippi River. The effect of adding river water to the raw sugar was to reduce the raw sugar to a clear slippery substance.

The object of the M/V Bremen’s trip to New Orleans was to receive a cargo of soya beans and soya meal. Before a cargo of soya beans could be taken aboard, it was necessary that grain fit-' tings be constructed in the hatches. The M/V Bremen’s time charterer engaged Gulfwide to construct these fittings.

The M/V Bremen docked at the St. Andrew Street Wharf in New Orleans at 4 o’clock in the afternoon of August 7. Between 4 and 5 o’clock that afternoon, two of Gulfwide’s employees came aboard the ship and measured the hatches for grain fittings. Work was scheduled to begin on the project at 8 o’clock the next morning.

Members of the longshore/carpenter gang began to board the ship between 7:30 and 7:40 to take a morning smoke, because smoking was not permitted on the wharf. Several members of the gang testified that they noticed the sugar residue on the deck as early as 7:45. McCawley himself testified that he went on board between 7:30 and 8:00 and that he saw and smelled the sugar at that time. The accident did not occur, according to McCawley’s testimony, until between 8:30 and 8:45.

At the time of the accident, Gulf-wide’s supervisory personnel at the scene had ordered the longshoremen aboard the vessel to stop work and stand by for further orders. Jacob Manguno, Gulfwide’s superintendent on the morning of August 8, testified that he first learned of the deck’s condition at about 8:10. Manguno did not board the ship to investigate the extent of the sugar on the deck, but relayed an order for the men to “stand by”. Although one of the reasons for the standby order was the slippery condition of the deck, Gulf-wide’s supervising personnel neither warned the men of the dangerous condition nor attempted to remove them to safer quarters. In effect, Manguno’s order allowed the men to mill about on the slippery deck.

Manguno then telephoned his superior, John Bryant, with regard to a lack of construction materials at the site. In the course of the conversation, Manguno mentioned the condition of the deck to Bryant, who told him to get the men off the ship. Manguno testified that he was principally concerned with the lack of materials and he characterized his concern for the slippery deck as secondary. This is not surprising, since Manguno had not gone aboard to inspect the deck when its condition was called to his attention.

Between 8:30 and 8:45, McCawley, feeling the urge for a sandwich out of his lunch bag, walked along the slippery deck. He fell, suffering the injuries for which he received judgment below.

II

Gulfwide asserts that the trial court “apparently adopted” an erroneous standard in determining whether the shipowner’s conduct was sufficient to prevent the stevedore’s workmanlike performance and preclude indemnity. The stevedore argues that the trial court refused to consider anything short of actual restraint by the shipowner as conduct to preclude indemnity.

We find no evidence in the transcript or in the opinion of the court below to support the stevedore’s argument. Although the application of a standard that fails to consider anything short of physical restraint as conduct to preclude indemnity would be clearly erroneous in light of the case law in this circuit, we find no indication in the record that such a standard had any place in the trial court’s determination. The trial court in terms stated that it applied the Waterman-Garner standard. Moreover, the trial court’s analysis is consistent with the overriding principle that liability should be fixed on “the party best situated to adopt preventive measures and thereby reduce the likelihood of injury”. Italia Societa per Azione di Navigazione v. Oregon Stevedoring Co., 1964, 376 U.S. 315 at 324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732.

Gulfwide argues that Ozeanosun was guilty of conduct sufficient to preclude indemnity because the condition of the deck was such that the shipowner did not provide the stevedore with a ship (a safe place) where the stevedore could, in the exercise of reasonable care, perform its contract in a workmanlike manner. This argument leads us in a circle. Although the appellant concedes that the trial court’s finding that it breached its warranty of workmanlike performance is not clearly erroneous, we are asked at the same time to find that the ship’s condition would preclude in its entirety the stevedore’s performance of its contract and thus absolve it of any liability.

Gulfwide’s attempt to circumvent the findings of the trial court is ingenious but it has little relation to the facts of this case. Gulfwide focuses our attention on the genesis of the ship’s unsea-worthy condition rather than on the more relevant issue of whose conduct it was that “brought into play” the ship’s unseaworthiness so as to cause the accident. See Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959).

The history of the deck’s condition, as well as the crew’s knowledge of that condition implicit in its multiple attempts to remove the sugar residue, would be relevant if it were not for the fact that Gulfwide had actual notice of the danger and ample opportunity to prevent the accident before it happened. Whatever the state of Gulfwide’s knowledge at the time of the initial inspection on August 7 or at the time of the boarding of the vessel by the first stevedores on August 8, the danger was a known danger at the time of the accident because it was reported to Joseph Manguno, Gulfwide's supervisor, at least 25 minutes before the accident occurred.

Because members of the longshore gang obey orders only if given through the Gulfwide chain of command and would not, under any circumstances, obey orders given by the ship’s officers or crew, only Joseph Manguno or one of his deputies could have prevented the accident by issuing appropriate orders telling the men of the danger and advising them how to avoid possible harm. Instead of issuing such orders, Manguno chose not to board the ship to investigate the extent of the danger, but simply ordered the men to stand by.

Depite the facts of the case, Gulfwide argues that Manguno’s omissions do not amount to a breach of its warranty of workmanlike performance because the shipowner’s conduct was sufficient to preclude performance of the stevedore’s contract in its entirety. While it may be true that Ozeanosun’s conduct was such that the sugar spill precluded Gulf-wide from performing the task that it had contracted to perform in constructing grain fixtures in the holds of the M/V Bremen, it is not true that the ship’s conduct precluded the stevedoring company from living up to its warranty of workmanlike performance with regard to the acts which it did perform toward the fulfillment of its obligations under the contract.

The stevedore’s warranty of workmanlike performance is not confined to the proper performance of the principal object of the contract, but encompasses all duties which are by nature ancillary to that principal object. As this Court has said, “[t]he WWLP consists of the contractual obligation to perform duties under a contract with reasonable safety”. Garner v. Cities Service Tankers Corp., 5 Cir. 1972, 456 F.2d 476, 481. See also Parfait v. Jahncke Service, Inc., 5 Cir. 1973, 484 F.2d 296, 301-302. The stevedore’s obligations under its warranty amount to a “series of contractual duties”. Olin Mathieson Chemical Corp. v. United Stevedores Div., S.D.Tex.1969, 317 F.Supp. 1373.

Although the principal duty under Gulfwide’s contract was to construct grain fixtures, the ancillary duties of preparing to construct the fixtures and of supervising the longshoreman/carpenters from the time they came aboard ship must also be considered “duties under the contract”. The mere fact that the principal purpose of the contract was later frustrated because of the slippery deck will not absolve the stevedoring company of its breach of warranty of workmanlike performance with respect to the duties which ought to have been performed before that point. Indeed, it is apparent from the record that neither the shipowner nor the stevedore considered the contract to be frustrated at the time of the accident.

In the face of Joseph Manguno’s testimony that he was principally concerned with the lack of materials at the site and would have permitted his men to board the vessel even if he had been fully aware of the deck’s condition before their actual boarding of the ship, we cannot find that the faulty condition of the deck suspended the ancillary duties owed by the stevedoring company to the shipowner under the warranty of workmanlike performance.

A comparison of the facts in this case with those in Olin Mathieson Chemical Corp. v. United Stevedoring Division, S.D.Tex.1969, 317 F.Supp. 1373, affirmed per curiam 432 F.2d 1234, demonstrates the fallacy inherent in Gulfwide’s position. In Olin Mathieson, a longshoreman slipped on the engineroom floor while attempting to start the vessel’s engines. The longshoreman saw a film of oil on the engineroom floor and had previously complained of this same condition on other ships owned by the defendant. Nevertheless, he went ahead and attempted to start the engines. The trial court said:

There is no issue as to the manner in which he performed this job; the question is whether his decision to continue working under these circumstances constituted a breach of his warranty of workmanlike service since it “brought into play” the vessel’s un-seaworthy condition. 317 F.Supp. 1373, 1376.

Gulfwide takes comfort from the Court’s emphasis in Olin Mathieson on the longshoreman’s “decision to keep working” as the root of liability there. By negative implication, it would have us hold that Gulfwide’s decision not to continue work in the present case just as clearly absolves it from liability. Such a per se rule would be illogical from the viewpoint of fixing liability on the party best able to prevent the accident.

Although the accident in Olin Mathieson might have been prevented by the longshoreman’s stopping work, the mere standby order in the present case was clearly inadequate to prevent the accident because the danger here consisted not of the longshoremen’s working on the slippery deck, but of their being on the slippery deck. Unless we are willing to attach some metaphysical significance to the standby order so that it will absolve the stevedore of liability in every case, regardless of the relative abilities of the shipowner and stevedore to prevent the accident, we must find that the standby order in this case was insufficient in light of the facts to shift liability back to the shipowner.

Reduced to its simplest form, Gulfwide’s argument is that “the shipowner [and] not the stevedore was in the best position to minimize the risk of injury”. We cannot say that the trial court’s finding to the contrary is clearly erroneous and we decline to reverse its judgment on that basis. Our reading of the Olin Mathieson case demonstrates that the genesis of the hazard is of only secondary importance. The relevant question is not who created the danger but who had the immediate opportunity to prevent the accident. The trial court found that Gulfwide had that opportunity and we do not find that determination to be clearly erroneous.

Ill

In this circuit foreseeable damages recoverable for breach of warranty of workmanlike performance include reasonable attorney’s fees and litigation expenses. Strachan Shipping Co. v. Kon-inklyke Nederlandsche, 5 Cir. 1963, 324 F.2d 746. See also C. Bue, Admiralty Law In The Fifth Circuit: A Compendium for Practitioners, 4 Houston L. Rev. 347, 419-420 (1966). Gulfwide does not dispute the reasonableness of the lower court’s award for attorney’s fees but simply asks us to change the rule of the circuit. We decline to do so.

For the reasons stated above, the judgment of the trial court is affirmed.

      . For an account of'the development of the Sieracki seaman admiralty triangl >, see G. Gilmore and C. Black, Law of Admiralty 358-374 (1957) and 1A Benedict, On Admiralty § 119 (7th ed. 1973).

      . The 1972 Amendments to the Longshoremen’s and Harbor Workers’ Act were enacted to simplify the relationship of longshoremen, their employers and shipowners as it had developed in the aftermath of Sieracki and Ryan. By improving compensation benefits, Congress hoped to remove the unseaworthiness fiction from the determination of these personal injury cases. The House Committee Report on the Amendments states that the ‘‘Committee has noted that the seaworthiness concept was developed by the courts to protect seamen from the extreme hazards incident to their employment which frequently requires long sea voyages and duties of obedience to orders not generally required of other workers. The rationale which justifies holding the vessel absolutely liable to seamen if the vessel is unsea-worthy does not apply with equal force to longshoremen and other non-seamen working on board a vessel while it is in port.” 1972 U.S.Code, Cong. & Admin.News pp. 4698, 4703 (92nd Cong., 2d Sess.). See Julian v. Mitsui O.S.K. Lines, Ltd., 5 Cir. 1973, 479 F.2d 432, 434.

      . “The determination of whether contractual indemnity should be allowed involves a weighing process evaluating the conduct of both parties to determine: (1) whether the warranty of workman-like performance was breached; (2) whether that breach proximately caused the injury; and (3) whether the shipowner’s conduct prevented the workman-like performance.” Garner v. Cities Service Tankers Corp., 5th Cir. 1972, 456 F.2d 476, 481.

      . The appellant also argues that the trial court made insufficient findings of fact. The trial court’s opinion, read in conjunction with the record of the proceedings below, convincrs us that the trial court applied the proper legal principles on the basis of relevant facts. Under Rule 52(a) of the Federal Rules of Civil Procedure, it is not necessary for the trial court to state specially its findings of fact and conclusions of law if there is a written opinion and the facts and applicable law are stated therein: “[i]f an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein”. The purpose of this rule is to facilitate appellate review and it must not be applied so as to prohibit review by the Court of Appeals where there is a sufficient basis for the court to consider the merits of the case.


author: RONEY, Circuit Judge:

text:
    George James COOK, Plaintiff-Appellant, v. Clyde WHITESIDE et al., Defendants-Appellees.
    No. 74-2457
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 16, 1974.

      George James Cook, pro se.
    John L. Hill, Atty. Gen., Jack Boone, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   RONEY, Circuit Judge:

In this action alleging use of unconstitutional procedures in the consideration of plaintiff inmate’s eligibility for parole, the district court held that the complaint “fails to satisfy the narrow standards for judicial challenges to parole denials as established by Scarpa v. United States Board of Parole, 477 F.2d 278 (5th Cir. 1973).”

The sole argument briefed to us by the Attorney General of Texas is that “the District Court below was correct in dismissing Appellant’s complaint based upon the authority of Scarpa.”

The district court order entered on April 25, 1974, and the attorney general’s brief filed in this Court on July 18, 1974, completely overlook the fact that Scarpa has been questionable authority in this Court since October 9, 1973. On that date the Supreme Court vacated our judgment in Scarpa and remanded for determination of mootness. Scarpa v. United States Board of Parole, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973). Thereafter this Court by order dated November 30, 1973, vacated the judgment of the district court with directions to dismiss the complaint as moot.

On June 26, 1974, a panel of this Court stated that “Scarpa has no precedential value.” Ridley v. McCall, 496 F.2d 213 (5th Cir. 1974).

A review of this case reveals, however, that the judgment of the district court should be affirmed without regard to the authority of Scarpa.

George James Cook, an inmate of the Texas Department of Corrections, brought the instant § 1983 civil rights action pro se against individual members of the Texas Board of Pardons and Paroles seeking injunctive and declaratory relief. He alleged that the Board members had deprived him of rights protected by the Constitution and laws of the United States by (1) failing to appoint or provide counsel to represent him as an indigent prisoner at parole proceedings, (2) denying him access to his papers on file with the Board, (3) employing arbitrary and capricious procedures in considering prisoners for parole, thereby subjecting inmates to cruel and unusual punishment, (4) denying him a meaningful notification of the reasons for the denial of his parole, and (5) interfering with his right to rehabilitation. Without an evidentiary hearing, the District Court for the Southern District of Texas dismissed Cook’s complaint for failure to state a claim upon which relief could be granted.

As a basis for review, we note that a § 1983 complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). We are also cognizant that the pleadings of pro se litigants should not be held to standards as stringent as the formal pleadings of attorneys. With these guidelines in mind, we examine the five counts of Cook's complaint individually.

In the first count of his complaint, Cook claims that the members of the Board deprived him of his constitutional rights to due process and equal protection of the laws by failing to provide him, as an indigent prisoner, with representation by counsel at parole eligibility proceedings. In Buchanan v. Clark, 446 F.2d 1379 (5th Cir.), cert. denied, sub nom. Buchanan v. United States, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971), we approved a holding that assistance of counsel is not required at a parole application hearing.

As his second cause of action, Cook alleges that the members of the Board denied him access to his papers on file with the Board in violation of Article 42.12, Section 13 of the Vernon’s Ann.Texas Code of Criminal Procedure (1966). The statute reads in pertinent part,

All minutes of the Board and decisions relating to parole, pardon and clemency shall be matters of public record and subject to public inspection at all reasonable times.

From the face of Cook’s complaint, we are unable to determine whether his papers on file with the Board are either “minutes” or “decisions relating to parole” which the statute makes matters of public record. Assuming arguendo that Cook’s papers do fall within the purview of the statute, the failure of the Board to allow Cook to see his file does not assume the proportions of a deprivation of his rights under the Constitution or the laws of the United States.

Third, Cook claims that the actions of the members of the Board in granting or denying parole are arbitrary and capricious, but he fails to allege facts to support his allegation. Without some factual foundation, Cook’s assertion of arbitrary and capricious action is not sufficient in and of itself to state a claim upon which relief can be granted under 42 U.S.C.A. § 1983. As to the psychological distress which, according to Cook, the prisoners suffer from the arbitrary and capricious denials of paroles, we decline to equate disappointment with cruel and unusual punishment prohibited by the Eighth Amendment.

In the fourth count of his complaint, Cook alleges that the members of the Board failed to give him meaningful notification of the reasons for the denial of his parole. As an exhibit to his complaint, however, Cook attached a printed form upon which the members of the Board had indicated the specific grounds for the refusal of his parole. Assuming without deciding that a prison inmate has the right to know why his parole was denied so that he can attempt to correct his misdoings in a successful manner, cf. Johnson v. Heggie, 362 F.Supp. 851 (D.Colo.1973), it appears from the complaint that the members of the Board did inform Cook of the reasons for the denial of his parole.

The fifth count of Cook’s complaint suffers from the same deficiencies as the third count. Although Cook states that the members of the Board have denied him rehabilitation through the abuse of their discretionary powers, Cook does not allege any facts to identify those discretionary powers which he claims that the members of the Board have abused. A mere allegation that the members of the Board have abused their discretionary powers is not sufficient to state a claim upon which relief can be granted under 42 U.S.C.A. § 1983. Accordingly, the judgment of the district court dismissing Cook’s complaint is

Affirmed.


author: BREWSTER, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. M. J. Mickey LOGAN, Defendant-Appellant.
    No. 74-1398.
    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.
    Victor K. Sizemore, El Paso, Tex. (court-appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald Ederer, Michael T. Milligan, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.
    Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.
   BREWSTER, District Judge:

This appeal is from a judgment of conviction for jumping bail in a felony case.

On June 1, 1973, appellant was sentenced by the federal court in El Paso, Texas to serve an indeterminate term not to exceed five years, with a special statutory parole term added, on a conviction for conspiracy to import a quantity of marihuana, a Schedule I Controlled Substance, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). The appellant’s wife and child lived in Houston, Texas, a distance of about 750 miles from El Paso, and he asked the Court for an opportunity to make arrangements for their care during his incarceration. For such purposes, the Court allowed him to remain on bail until June 8, 1973, and he was directed to report back to the Court in El Paso on that date to begin service of his sentence. The appellant thereupon requested that he be allowed to surrender to the U. S. Marshal in Houston. The Court granted that request, and directed him to report to the Marshal at Houston at noon on June 8, 1973.

The appellant did not report to custody as ordered, and, on June 13, 1973, the federal grand jury at El Paso, returned the present indictment, which charged:

“That on or about June 8, 1973, M. J. MICKEY LOGAN, having been released on bail pursuant to Chapter 207, Title 18, U.S.C. after having been convicted and sentenced under the felony charge of conspiracy to import a quantity of marihuana, a Schedule I Controlled Substance, contrary to 21 U.S.C. ## [§§] 952(a) and 960(a)(1), knowingly and wilfully failed to appear for incarceration in the U. S. Marshal’s office, Houston, Texas, at 12:00 P.M. on June 8, 1973, as per orders of the United States District Court for the Western District of Texas, El Paso Division, in violation of 18 U.S.C. # [§] 3150.”

The appellant was not apprehended on his conviction on the marihuana conspiracy charge or on the indictment in the instant case until he surrendered to the U. S. Marshal at Dallas, Texas, on September 28, 1973, almost four months after the date he was ordered to report to the U. S. Marshal at Houston. The sentence proceedings show that his surrender was due to considerable urging by his wife.

The trial on the present charge was on a plea of not guilty before the Court without a jury. The contest in the trial was over the pertinent law. The facts, as above set out, were before the Court uncontested. The Court found the defendant guilty as charged, and assessed a penalty of five years imprisonment to run consecutively to the sentence in the marihuana conspiracy case. The sentence was later probated upon a showing that the appellant had told the Drug Enforcement Agents all he knew about the persons involved in his dealings with marihuana. One of the conditions of his probation was that he pay his $10,000.00 bond forfeiture in the marihuana case in monthly installments under a plan to be worked out with the probation officer.

The grounds urged for reversal are:

(1) The appellant was guilty of no offense under the facts because the U. S. Marshal, to whom he was ordered to report, could not come within the terms, “court of judicial officer”, used in 18 U.S.C. § 3150.

(2) The $10,000.00 the appellant was ordered to pay was a fine, and it was in excess of the maximum fine of $5,000.00 provided for in 18 U.S.C. § 3150.

The disposition of the first contention will depend upon the construction of the language, “any court or judicial officer,” set out in the portion of 18 U.S.C. § 3150 heretofore quoted in footnote 1. The term “judicial officer” is defined in 18 U.S.C. § 3152. Admittedly, a United States Marshal is not a “court or judicial officer”, as those terms are used in the above statutes; but we agree with the holding in United States v. West, 4 Cir., 477 F.2d 1056 (1973), that under circumstances substantially the same as those here, it is appropriate to view the Marshal as the designated agent of the Court for the purpose of taking a sentenced defendant into custody. In that case, the Court, after agreeing with the appellant there that a United States Marshal did not come within the terms, “court or judicial officer”, said at p. 1058:

“Notwithstanding the fact that a United States Marshal is not to be equated with a judicial officer under § 3150, we affirm West’s conviction. The essence of the crime of bail jumping is willful failure to appear before ‘any court or judicial officer as required.’ As a condition of defendant’s bond, the court ordered him to report to the United States Marshal at a specific time to begin serving his sentence. An unnecessary waste of judicial time and energy would result if we were to require that each person in West’s position appear before the court itself. No discretionary action at all is involved.
“Under these circumstances it is appropriate to view the United States Marshal as the designated agent of the court for the limited purpose of taking West into custody. Cf. United States v. Cardillo, 473 F.2d 325 (4th Cir. 1972). Accordingly, we dispense with oral argument and affirm the judgment of the court below.”

United States v. Cardillo, 4 Cir., 473 F.2d 325 (1973), cited in the quotation just above, is also authority for the proposition that under limited conditions, the court may designate an appropriate officer as agent to carry out some of its obligations under the Bail Reform Act. In that case, the appellant contended that his bail jumping conviction should be reversed because the courtroom clerk, rather than the district judge, delivered to him the warning of the penalties applicable to violation of his conditions of release, as required by 18 U.S.C. § 3146(c). The clerk gave such warning in open court at the direction and in.the presence of the presiding judge. There was no question about the correctness of the warning as given. The Court of Appeals held that there was a substantial compliance with the statute under the circumstances as “the clerk acted under the guidance of and as the agent for the presiding judge”, and upheld the conviction.

There is no reported case in this Circuit on the exact question here presented. United States v. Clark, 5 Cir., 412 F.2d 885 (1969), though not cited in the briefs, is the only bail jumping case by this Court which could give any support to appellant’s contention. We feel that Clark is distinguishable on the facts; and that while there is some language in its opinion which might give comfort to the appellant, it should not be expanded to apply to entirely different fact situations. In Clark, the trial court adjudged the defendant guilty of a violation of the Dyer Act upon his plea of guilty, and deferred sentence to await a presen-tence report. From there on, there was an atmosphere of uncertainty about some of the material facts regarding what the defendant was supposed to do. No fixed date was set for the sentencing at the time of the deferment. The following quotation from the opinion sets out the occurrences after the defendant was released on his own recognizance:

“. . . Thereafter the court apparently directed appellant to report to Charles Raggio, the probation officer, for completion of the presentence report. The record does not reflect whether this directive was made a condition of release or whether it was included in the written appearance bond that appellant signed. The record is also unclear as to the terms upon which Clark was to report to the probation officer, whether for one day only, or until the presentence report was complete, or on such terms as the probation officer might thereafter impose.” (Emphasis added).

The defendant did report to Mr. Rag-gio at the time the government claims he was directed to report. About 45 minutes later, the defendant requested permission to go to the home of his grandparents. The probation officer granted such permission upon condition that he return at 8:00 a. m. the next morning to assist in completing the pre-sentence report. He failed to return at the specified time, and a warrant was issued later that day for his arrest. He was subsequently taken into custody, and sentence was imposed on his Dyer Act conviction. The opinion says:

“. . .At that time appellant was 19 years old and a first offender. He received a maximum sentence of five years imprisonment.” Thereafter, he was indicted for bail jumping because of his alleged “willful failure to appear before a United States probation officer as required by a condition of his bail bond.” He was tried, convicted and sentenced to another maximum term of five years to run consecutively to the five year sentence in the Dyer Act case. The Court of Appeals reversed the conviction on the ground that a probation officer did not come within the terms, “court or judicial officer.”

The Clark case is distinguishable from the present case on a number of grounds, but the ones that follow will suffice. Clark was not tried for willful failure to appear before an officer designated by a court order. The indictment alleged that Clark’s obligation to appear before the probation officer arose from a condition in his bail bond. Also, as is mentioned in the opinion in that case, Clark’s appearance before the probation officer was a compliance with the judge’s directive to appear, if it was given. Under the circumstances, the question of the authority of the Court to designate an appropriate agent to act for the Court under limited circumstances under the Bail Reform Act was not before the Court. In addition, the trial judge, in referring Clark to the probation officer, could not avoid the exercise by him of discretionary action. The opinion in that case points out the havoc that would flow from the exercise of such discretion. There can be no such havoc resulting from an order of the Court to report to a designated United States Marshal, at a specified time and place, to be taken into custody. As was pointed out in the West case: “. . .No discretionary action at all is involved.” (477 F.2d, at 1058). Finally, the opinion in the Clark case says that Clark’s “failure to keep an appointment with a probation officer did not therefore constitute the kind of non-appearance which § 3150 of the Bail Reform Act was designed to discourage.” 412 F.2d, at 891. The same could not be said about the failure to obey an order of the Court to report to the U. S. Marshal to begin service of sentence. A bail bond would be meaningless if the defendant could discharge all his obligations thereunder by making the necessary appearances down to the point of entering custody to begin service of his sentence. If the trial judge in this case had required the defendant to make the 750 mile trip from Houston to El Paso at his own expense to report to the court itself, he would have been promptly turned over to the U. S. Marshal. No confusion or havoc could possibly arise from the Court’s designation of the U. S. Marshal at Houston as its agent to receive' the defendant under the circumstances.

The appellant’s contention that the requirement for him to pay $10,000.-00 was a fine is not supported by the record. Without conceding that the colloquy regarding the payment by appellant of the $10,000.00 is subject to the construction put on it by his counsel, it is sufficient to say that the matter was settled by the judgment entered on February 1, 1974. The following is quoted from that judgment: “The execution of said sentence of imprisonment is hereby suspended and defendant placed on probation for a period of FIVE YEARS with supervision, said sentence to run consecutively to sentence defendant is now serving in P-73-CR-16, with condition that he pay the Judgment on Forfeiture of Bail of $10,000 in monthly installments.” Under the circumstances, the requirement that the appellant pay $10,000.00 had reference to the bond forfeiture, and was not a fine.

Affirmed.

      . The conviction in the present case was under IS U.S.C. § 3150, which, in pertinent part, provides:
      "Whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, shall . . ., incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both . . . .” (Emphasis added).

      . The sentence was made indeterminate under the provisions of 18 U.S.C. § 4208(a)(2), which says:
      “ . . . (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.”

      . The appellant was free on a $10,000.00 surety bond in the marihuana conspiracy case. His father signed the bond as surety. It was forfeited upon appellant’s failure to report as ordered. The father was hard pressed, and the Court did not want him to suffer for the default of his son. I-Ie told the probation officer at the time of sentencing that the schedule to be worked out with the appellant should not call for payments until appellant got out of prison and obtained a job.

      . 18 U.S.C. § 3146(c) required in part that “[a] judicial officer authorizing the release of a person under this section . . ., shall inform such person of the penalties applicable to violations of the conditions of his release . . ..”

      . 18 U.S.C. § 2312.

      . The statement in the above quotation about the uncertainty of how the directive to report was handled is important because the factual basis alleged in the bail jumping indictment was the defendant’s “willful failure to appear before a United States probation officer as required by a condition of his bail bond.” (412 F.2d, at 887).

      . An additional reason for holding that a probation officer is not a judicial officer as that term is used in the Bail Reform Act is the havoc which a contrary ruling would create in other provisions of the Act. Not only would acceptance of the government’s position permit probation officers to release an accused on hail pursuant to § 3146(a), but if a probation officer is a judicial officer then he would also be required to issue orders containing the conditions of release, 18 U.S. C.A. § 3146(c), to entertain motions to modify the conditions of release, 18 U.S.C.A. § 3146(e), to amend his orders at any time to impose additional conditions, 18 U.S.C.A. § 3146(e), and to detain or release material witnesses in a criminal proceedings, 18 U.S. C.A. § 3149. Such an expansive concept of a probation officer’s duties not only seems novel in the extreme, it runs contrary to the avowed Congressional purpose expressed in the history of the Bail Reform Act not to subject probation officers to “additional duties [that] might require additional personnel.” See 1966 U.S.Code Cong. and Admin. News, p. 2293. (412 F.2d, at 889).