author: J. JOSEPH SMITH, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, and New York Telephone Company, Intervenor, v. LOCAL UNION NO. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent.
    No. 528, Docket 72-1921.
    United States Court of Appeals, Second Circuit.
    Argued March 19, 1973.
    Decided April 10, 1973.
    Rehearing Denied June 13, 1973.

      Edward N. Bomsey, Atty., NLRB, Washington, D. C. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Atty., NLRB, Washington, D. C., of counsel), for petitioner.
    Saul G. Kramer, New York City (Proskauer, Rose, Goetz & Mendelsohn, Edward Silver, Charles R. Held, G. Wallace Bates and William P. Witman, New York Telephone Company, New York City, of counsel), for intervenor.
    Norman Rothfeld, New York City (Harold Stern, New York City, of counsel) , for respondent.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

The National Labor Relations Board has petitioned for enforcement of an order against Local Union # 3, International Brotherhood of Electrical Workers, (the “Union”) to cease and desist from violations of the secondary boycott provisions of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (i) and (ii)(B). The Board’s decision, adopting the findings, conclusions, and order of the Trial Examiner, appears at 197 NLRB No. 59, 80 LRRM 1630 (1972). We find substantial evidence in the record to support the order, and enforce.

The underlying facts are not in dispute. New York Telephone Company (“Telco”) has for many years subcontracted the jobs of installing telephone wire and cables and fastening certain iron work and terminals in buildings under construction or major alteration to independent contractors. Telco contracted with L. K. Comstock and Co. (“Comstock”), Lord Electric Co. (“Lord”), and J. Livingston and Co. (“Livingston”) to do such work on a number of Manhattan jobsites. The employees of these contractors were represented by Local # 3. Under the usual procedure, the material used by the contractor was delivered to the jobsite by Telco employees, who unloaded it from the trucks. The Local #3 members then would transfer the material to the point of use, and install it.

In July of 1971, Telco employees, represented by the Communications Workers of America (“CWA”), went out on strike. Consequently, Telco management personnel were assigned the delivery jobs outlined above. At least during the period prior to August 31, 1971, these deliveries were accepted by the contractors’ employees and installed, although there were apparently one or two instances in which Union members refused to accept or place the materials.

On August 31, a luncheon meeting took place between Thomas Van Arsdale, the Union business manager, Peter J. McCall, a Telco representative, Anthony Salerno, Comstock’s telephone superintendent, and John Fenley, Lord’s general superintendent. The instances of non-acceptance of Telco deliveries were discussed. There was a conflict of testimony as to whether Van Arsdale stated that Union members had been instructed not to accept such deliveries, or whether he merely said that such actions were individual acts of conscience on the part of Local # 3 members. The Trial Examiner found it unnecessary to rely upon what was said at the meeting, and did not resolve the dispute.

Telco then contracted with independent truckers to deliver the materials to the jobsites; several such deliveries were accepted. On about September 7, however, a telephone conversation took place between Fenley and McCall. McCall was told that Fenley and Salerno had met with Van Arsdale, who informed them that the new delivery arrangement might also lead to difficulties. Again, it was a matter of dispute —which the Trial Examiner did not find it necessary to resolve — whether Van Arsdale stated that Union members had been instructed to refuse deliveries, or whether he simply reported the possibility.

On September 9, Local # 3 held its regular monthly membership meeting. In the course of his business report, Van Arsdale discussed the Telco situation, and told the membership that it was his view that when Telco management or independent truckers delivered materials to jobsites, they were acting as strikebreakers. He further stated that “if we were . . to be true to the trade union principles, that there . . . would be no basis for men working under those circumstances.” Van Arsdale emphasized, however, that this was his personal view and that others would have to make up their own minds. Van Arsdale had also made these views known in a number of individual discussions with Local # 3 members.

On September 10, a meeting took place between McCall and Van Arsdale. McCall told Van Arsdale that Telco was taking a serious view of any refusals to accept deliveries, and might either bring court action or eliminate the subcontracting system entirely, leaving the installation work to be done by Telco employees. McCall testified that Van Arsdale “said he was sorry but they had taken a Trade Union stand that they could not be in a position of aiding or abetting strike breakers; that he considered such work, such material, deliveries to be strike breaking.”

At about the same time, a number of interruptions began to occur on Manhattan projects. On September 9, employees of Comstock on a job at 94th and Park Avenue, and employees of Lord at a job on Madison Avenue, refused to install wire and cable. On September 10, a Livingston foreman, a member of Local # 3, refused to do a job at One Liberty Plaza involving deliveries by management personnel. On the same day, Livingston employees at 1409 Broadway refused to accept deliveries from “strikebreakers.” On September 17, Livingston electricians at 919 Third Avenue refused to install material delivered by Telco personnel.

On September 21, Telco filed unfair labor practice charges against the Union. Pursuant to § 10(l) of the Act, 29 U.S.C. § 160(l), the Board’s Regional Director sought a temporary restraining order against the Union’s work interruptions. Such an order was issued by the District Court for the Southern District of New York on October 20, 1971. F.Supp., 80 LRRM 2436.

On October 22, Comstock employees refused to install material at the 450 Park Avenue and 94th and Park Avenue jobsites. The District Court then granted a preliminary injunction on October 28, 1971. F.Supp., 80 LRRM 2557. On December 29, 1971, the District Court found the Union in civil contempt and directed it to purge itself. 337 F.Supp. 31 (S.D.N.Y.1971).

I.

Inter alia, § 8(b)(4) of the National Labor Relations Act makes it an unfair labor practice for a union

“(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged m commerce or in an industry affecting commerce, where in either case an object thereof is—
* * * * * *
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person. . . .”

The overriding purpose of these secondary boycott provisions is to protect “unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Building Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951). See also NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 302-303, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971).

Here, it is clear that Local # 3 members employed by neutral contractors refused to deliver or install materials delivered by other than striking Tel-co workers. The real question is one of fact — did the Union “induce or encourage” such refusals? And, it is a settled principle that this court should accept those findings of fact made by the Board which are supported by substantial evidence, even if we might have reached a different conclusion ourselves. See, e. g., Bedding, Curtain and Drapery Workers Union, Local 140 v. NLRB, 390 F.2d 495, 499-500 (2d Cir. 1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2056, 20 L.Ed.2d 1363 (1968).

The Union contends that Van Arsdale’s statements at the September 9 meeting represented only his own personal views, that Union members were explicitly told that they had to make up their own minds, and that no “inducement or encouragement” under § 8(b)(4) could therefore have taken place. But, we have been told by the Supreme Court that “The words ‘induce or encourage’ are broad enough to include in them every form of influence and persuasion.” International Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694, 701-702, 71 S.Ct. 954, 958, 95 L.Ed. 1299 (1951). Or, in the more colorful words of Judge Goldsborough, “If a nod or a wink or a code was used in place of the word ‘strike,’ there was just as much a strike called as if the word ‘strike’ had been used.” United States v. United Mine Workers, 77 F.Supp. 563, 566 (D.D.C.1948), aff’d, 85 U.S.App.D.C. 149, 177 F.2d 29, cert. denied, 338 U.S. 871, 70 S.Ct. 140, 94 L. Ed. 535 (1949).

There was substantial evidence in the record from which the Board could conclude that Van Arsdale’s remarks constituted the inducement or encouragement prohibited by § 8(b)(4)(i) (B). Van Arsdale was the business manager of the Union, solely responsible for results in the field, who stated at an official meeting that his interpretation of trade union principles required the refusal to handle Telco deliveries. Soon following were a number of such refusals. While it may have been theoretically possible for a Union member to view Van Arsdale’s statements as solely personal, and not the official position of the Union, the exercise is difficult at best. Indeed, Van Arsdale himself seems to have recognized this, for after stating that he had made his views known to individual members on several occasions, the following colloquy occurred :

“Q. Mr. Van Arsdale, focusing on the period between August 31st and October 19th — that’s the period prior to the injunction, did you express your views to the members of Local 3 concerning whether they should or should not do the work?
Not the local’s views, but yours ?
A. How do you distinguish between the local’s views and my views ?”

The Board was entitled to find that when Van Arsdale chose the official meeting to make his personal views known, he was “encouraging or inducing” action thereupon, even if the final choice were explicitly left up to Union members. This finding is corroborated by the fact that Union members who refused to handle Telco deliveries were not disciplined, despite the availability of sanctions in both the International Constitution and the Local Bylaws for those causing unauthorized work stoppages. See NLRB v. Local Union # 3, IBEW, 467 F.2d 1158, 1160 (2d Cir. 1972); Local Union # 25, IBEW, 162 NLRB 703, 719-720 (1967), enforced, 396 F.2d 591 (2d Cir. 1968); Local Union # 3, IBEW, 140 NLRB 729, 740 (1963), enforced, 325 F.2d 561 (2d Cir. 1963).

The facially equivocal nature of Van Arsdale’s statements cannot in itself preclude the finding of a § 8(b)(4)(i)(B) violation. In NLRB v. Local 294, International Brotherhood of Teamsters, 298 F.2d 105, 106-107 (2d Cir. 1961), we held that a union’s requests for “cooperation” from firms and their employees dealing with a struck trucking concern amounted to a § 8(b) violation. We noted that given the circumstances at hand, such a request was tantamount to encouragement of a secondary boycott. Surely the Board could have found the same here. Similarly, in Truck Drivers and Helpers Local Union #728 v. NLRB, 332 F.2d 693 (5th Cir.), cert. denied, 379 U.S. 913, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964), such statements by a union president as “I can’t tell you anything. You do as you please. You don’t have to handle no scab freight,” and comments by stewards that they would not handle the disputed freight, but that others should make up their own minds were found to constitute § 8(b) inducement. See also NLRB v. District Council of Painters # 48, 340 F.2d 107 (9th Cir.), cert. denied, 381 U. S. 914, 85 S.Ct. 1539, 14 L.Ed.2d 435 (1965) (§ 8(b)(4) violation premised on statements by union representative that struck manufacturers’ materials were “unfair”).

Nor does the Trial Examiner’s finding that Van Arsdale had no actual intent to induce or encourage the work stoppages take the statements outside of § 8(b)(4). It is enough that such inducement was the natural consequence of his statements; the Board’s finding that work stoppages actually occurred as a result of the statements makes the proof of actual intent unnecessary. See NLRB v. Local 459, IUE, 228 F.2d 553, 560 (2d Cir. 1955), cert. denied, 351 U. S. 962, 76 S.Ct. 1025, 100 L.Ed. 1483 (1956).

II.

The Union argues that even if Van Arsdale’s statements are assumed to be “inducement or encouragement,” a number of factors preclude the finding of § 8(b)(4) violations here. First the Union contends that the statements fall within the scope of § 8(c) of the Act, 29 U.S.C. § 158(c), which provides:

“(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.”

Alternatively, the Union argues that if § 8(b)(4) does reach the statements made by Van Arsdale here, it is unconstitutional because of its prohibition against pure speech.

Whatever merit these contentions might have in the abstract, they are disposed of by the Supreme Court’s decision in IBEW v. NLRB, supra, 341 U.S. at 703-705, 71 S.Ct. 954. There, the Court held § 8(c) did not protect § 8(b)(4) inducements or encouragements, reasoning that such a construction would gut the effectiveness of the secondary boycott provisions. The Court directly rejected the position, urged by the Union here, that only those inducements and encouragements that amount to a “threat of reprisal or force or promise of benefit” fall within § 8(b)(4), holding instead that § 8(b)(4) reaches every form of influence and persuasion. Id. at 701-702, 71 S.Ct. at 959.

The same case also disposes of any First Amendment objections to § 8(b)(4), noting that “prohibition of inducement or encouragement of secondary pressure . . . carries no unconstitutional abridgement of free speech.” Id. at 705, 71 S.Ct. at 960. And, while the Union is correct in noting that the inducement in the Supreme Court case involved picketing and not the “pure speech” presented here, that is a distinction without a difference. The Court noted that:

“The remedial function of § 8(c) is to protect noncoercive speech by employer and labor organization alike in furtherance of a lawful object. It serves that purpose adequately without extending its protection to speech or picketing in furtherance of unfair labor practices such as are defined in § 8(b) (4).” (Emphasis added)

Id. at 704, 71 S.Ct. at 960. It is thus clear that the Court which rejected First Amendment objections to § 8(b)(4) had “speech” as well as “picketing” inducements in mind.

The Union next contends that, in view of the fact that the refusals to accept deliveries were few in absolute number and did not totally halt work on any project, no § 8(b)(4)(i) or (ii)(B) “cessation of business object” was shown. The argument is without merit. The Supreme Court has made it clear that the subsection (B) “cease doing business” requirement may be satisfied by something less than a total halting of operations by the neutral employer. NLRB v. Local 825, Operating Engineers, supra, 400 U.S. at 304-305, 91 S.Ct. 402. Bearing in mind that the issue of what was the object of any inducement or coercion is a factual question, see Bedding, Curtain and Drapery Workers Local 140 v. NLRB, supra, 390 F.2d at 499-500, we are unable to conclude that the Union’s goal here was “so limited” or “the foreseeable consequences of its secondary pressure so slight,” as to foreclose subsection (B) liability. NLRB v. Local 825, supra, 400 U.S. at 305, 91 S.Ct. at 407. See, e. g., NLRB v. Local 830, International Brotherhood of Teamsters, 281 F.2d 319 (3d Cir. 1960) (eight instances of refusals to handle out of thousands of sales sufficient to uphold board findings). Cf. NLRB v. Local 802, Musicians, 226 F.2d 900, 904-905 (2d Cir. 1955) (even unsuccessful attempts at inducement within purview of secondary boycott provisions.)

Similarly, the stoppages were neither so isolated nor de minimis in scope so as to give us ground to disturb the Board’s findings of a § 8(b) (4)(ii) threat, coercion, or restraint. We have held in a case involving many of the same parties that a work stoppage alone (a number of which clearly occurred here) may constitute a § 8(b)(4)(ii) threat. NLRB v. Local # 3, IBEW, 325 F.2d 561, 562 (2d Cir. 1963). See also, NLRB v. Highway Truckdrivers & Helpers, Local No. 107, 300 F.2d 317 (3d Cir. 1962) (refusals to handle shipments found to constitute § 8(b)(4)(ii) threats.)

Next, the Union argues that since the purpose of the secondary boycott provisions is to protect neutral employers from entanglement in labor disputes not their own, no § 8(b)(4) violation can be found in this case where Tel-co, not the contractors, was the charging party. We disagree. While § 8(b)(4) may be fairly characterized as a protection of neutral employers, Congress has nowhere indicated that charges must be initiated by the third party employer. Indeed, it is the neutral employer, subjected to secondary pressure by the offending union, who may most often be unwilling to go to the NLRB. As the Supreme Court has noted in another context, a “proceeding by the Board is not to adjudicate private rights but to effectuate a public policy.” NLRB v. Marine Workers, 391 U.S. 418, 424, 88 S.Ct. 1717, 1721, 20 L.Ed.2d 706 (1968). Telco was neither a stranger to the conflict here, nor clearly without the “zone of interests” the National Labor Relations Act is designed to serve. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). And, because enforcement of the Act depends “upon the initiative of individual persons,” Nash v. Florida Industrial Commission, 389 U.S. 235, 238, 88 S.Ct. 362, 365, 19 L.Ed.2d 438 (1967), the Supreme Court has reminded us that “there should be as great a freedom to ask the Board for relief as there is to petition any other department of government for a redress of grievances.” NLRB v. Marine Workers, supra, 391 U.S. at 424, 88 S.Ct. at 1722. In the absence of any authority to the contrary, we think it would be against this policy of private initiative and free access to impose a restrictive requirement of standing to complain in § 8(b)(4) proceedings. Cf. Bedding, Curtain and Drapery Workers, Local 140 v. NLRB, supra, 390 F.2d at 498 (charging party was primary employer, not neutral employer).

III.

In a final attempt to avoid the application of § 8(b)(4), the Union seeks to invoke two exceptions to the statutory ' coverage: the “struck work” doctrine and the § 8(b)(4) proviso. For the reasons outlined below, neither defense is applicable here.

The “struck work” doctrine recognizes as a primary dispute, and thus without § 8(b)(4), the refusal of union members to do work, even at the site of a secondary employer, “which would otherwise be done by the striking employees of the primary employer.” NLRB v. Local 459, IUE, supra, 228 F.2d at 559. The Union argues that the Board had, previous to the work stoppages here, ordered Local # 3 not to contest Telco’s right to assign installation work to its own employees (Communications Workers of America) and that the Union was complying with the order. See 193 NLRB No. 116, 78 LRRM 1374 (1971) and 197 NLRB No. 137, 80 LRRM 1816 (1972). Thus, had it not been for the CWA strike, the Union argues, the installation work here would have been done by CWA members. Hence, the work is viewed as struck work, and § 8(b) inapplicable.

This argument fails for several reasons. First, the NLRB orders about giving installation work to CWA employees are by their own terms limited to projects in Queens. 193 NLRB No. 116 at n. 11, 78 LRRM at 1376 n. 11; 197 NLRB No. 137, 80 LRRM at 1816. There is simply no indication in either NLRB decision that the Manhattan installation work was to be given to CWA members, and thus it is impossible to view Local # 3 employees as doing work that but for the strike, CWA workers would have done.

Secondly, even if we assume arguendo that the installation work here might someday be assigned to CWA workers, the “struck work doctrine” remains inapplicable. It is clear from Judge Lumbard’s opinion in NLRB v. Local 459, supra, that the doctrine allows union members to refuse to act as “strike-breakers,” or put another way, refuses to treat as a secondary boycott the refusal to accept the “farmed-out work of a struck employer.” 228 F.2d at 558. Here, the installation work done by Local # 3 members was performed by them for many years before the CWA strike, continued to be performed by them during the strike, and for all the record indicates, appears to have been still performed by them after the end of the strike. This is hardly the situation the “struck-work” doctrine was aimed at — Local # 3 members were clearly not being asked to act as strikebreakers in September and October of 1971.

The § 8(b)(4) proviso reads: “Provided, That nothing contained in this subsection [(b)] shall be construed to make unlawful a refusal by any person to enter upon the premises of aijy employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under [the Act].”

Thus, for the proviso to be applicable here, the Local # 3 members must be considered as refusing to enter Telco premises when they engaged in the work stoppages.

Such a characterization of the Union actions is absurd. It stretches credulity to call the construction projects here Telco premises; indeed, a rational analysis would seem to show that the construction sites were precisely the premises “of his own employer” that are without the proviso. But even if we accept arguendo the shaky “premises” premise, the Union cannot seriously contend that its members “refused to enter” the construction sites. The Union itself recognizes this when it argues that the refusals to handle Telco materials, which were clearly made by workers at the job-sites, did not result in any real cessation of work. Whatever the merits of that contention — which we rejected as an attempt to avoid the subsection (B) “cessation of business object” requirement above — it is obvious that the Union could not even begin to so argue had the Local # 3 members refused to enter the construction sites. To read “refuse to enter” as “refuse to work” or “refuse to handle” would constitute a gross judicial rewriting of the proviso, which is designed to protect workers who refuse to cross primary picket lines at the premises of another employer, a situation clearly not present here. Cf. Truck Drivers Union Local No. 413 v. NLRB, 118 U.S.App.D.C. 149, 334 F.2d 539, 543 (D.C.Cir.), cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964).

IV.

Finally, the Union argues that the Board’s order is overly broad, since it prohibits the Union from engaging in prohibited conduct not only with respect to Telco and the contractors involved here, but with respect to “any other employer or person.” While the order is broad, it is well settled that the Board has wide discretion in fashioning remedies. See, e. g., International Association of Machinists v. NLRB, 311 U.S. 72, 82, 61 S.Ct. 83, 85 L.Ed. 50 (1940). In view of the long history of secondary pressures brought by Local # 3 against Telco, see NLRB v. Local # 3, supra, 467 F.2d 1158; NLRB v. Local # 3, 339

F.2d 145 (2d Cir. 1964); NLRB v. Local # 3, supra, 325 F.2d 561, and the fact that the Union has already been found in contempt of court for continuation of its secondary activities here, a broad order was an appropriate exercise of the Board’s discretion. IBEW v. NLRB, supra, 341 U.S. at 706, 71 S.Ct. 954, 95 L.Ed. 1299.

Enforced.

      . Fenley was also a vice-president of Local Union # 3.

      . Even if we were to view Telco and the contractors as temporarily sharing a common situs at the jobsites, the holding of Grain Elevator, Flour & Feed Mill Workers, ILA, Local 418 v. NLRB, 126 U.S.App.D.C. 219, 376 F.2d 774 (1967) would still make % 8(b)(4) applicable in the absence of on-site picketing by the primary union (CWA).


source: Caselaw Access Project

author: TUTTLE, Circuit Judge: SIMPSON, Circuit Judge

license: Public Domain

text:
    Ernest Jackson COTTLE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.
    No. 72-1673.
    United States Court of Appeals, Fifth Circuit.
    April 23, 1973.

      Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Ásst. Atty. Gen., Tallahassee, Fla., for respondent-appellant.
    Morton A. Kesler, Jacksonville, Fla., court appointed, for petitioner-appellee.
    Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

Ernest Jackson Cottle, appellee herein, was convicted of robbery in the Duval County Criminal Court of Record and on September 14, 1956, was sentenced to serve a term of twelve years in the state penitentiary. He was released on parole on November 28, 1961, and thereafter conducted himself in a manner which the Florida Parole Commission found unobjectionable until April 29,' 1968 when he was convicted in the Recorder’s Court of New Hanover, North- Carolina for public drunkenness. The court imposed the maximum penalty of twenty days for a first such offense, but suspended sentence. On June 12, 1968 Cottle was again convicted in the Recorder’s Court for the same offense and this time he received a twenty day jail sentence pursuant to a North Carolina statute which provides for as much as six months’ imprisonment for a second such offense committed within a year after the first. Insofar as appears from the record, Cottle was not represented by counsel, nor was he advised of any right to appointed counsel, at either of these North Carolina trials.

On August 2, 1968 the Florida Parole Commission, in view of the North Carolina convictions, conducted a hearing to determine whether Cottle’s parole should be revoked. With respect to such hearings the state of Florida has provided by statute that:

“As soon as practicable after the arrest of a person charged with violation of the terms and conditions of his parole, such parolee shall appear before the commission in person, and if he desires he may be represented by counsel, and a hearing shall be had at which the state and the parolee may introduce such evidence as they may deem necessary and pertinent to the charge of parole violation.” F.S. § 947.23, F.S.A. (Emphasis supplied).

Although thereby permitted to be represented by counsel, Cottle, who was indigent, appeared before the Commission without the benefit of counsel and testified in his own behalf. He denied having committed the parole violations with which he had been charged. The Commission, however, formally revoked his parole, retroactive to July 6, 1968, by order of revocation dated August 6, 1968.

Having exhausted his state remedies, Cottle brought this petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. He alleged, first, that the fail-, ure of the state to appoint counsel to represent him at his parole hearing constituted a denial of equal protection, and, second, that parole revocation could not properly be based on the two North Carolina convictions which, he asserted, were procured in violation of his constitutional right to counsel. The district court, 338 F.Supp. 819, upon resolution of the factual issues, concluded that Cottle’s claims were meritorious. The court released Cottle on his own recognizance and ordered that at any subsequent parole revocation hearing Cottle should be afforded the services of counsel and that at such hearing, if any, the judgments of conviction from the North Carolina trials could not be considered by the Parole Commission as evidence (although the underlying facts might be proved by independent evidence). The state of Florida, in behalf of the director of the Florida Division of Corrections, appeals from that judgment. We affirm in part and reverse in part.

We consider first whether the Equal Protection Clause of the Fourteenth Amendment to the Constitution requires that the state of Florida appoint counsel for indigent parolees unable themselves to retain counsel to rep^ resent them at parole revocation hearings. This question, of course, arises specifically within the framework of Florida’s legislative scheme pertaining to parole revocation, which, among other things, provides that a parolee, if he desires, “may be represented by counsel” at his parole revocation hearing. We are of the view that inasmuch as such assistance is, by statute, available to those who can afford it, it should likewise be available to those who cannot.

In this context we need not undertake to reflect upon the question whether the state of Florida would be obliged, as a matter of due process, to provide for representation by counsel at parole revocation hearings. The Supreme Court has recently had occasion to consider whether the requirements of due process apply to parole revocation proceedings and while it concluded that certain minimal procedures were constitutionally mandated, it did not “reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1971). Nor do we.

However, though we reserve decision as to whether the state might be required to provide for representation by counsel at parole revocation hearings, we think nonetheless that, once having provided for retained counsel, the state cannot constitutionally deny the same opportunity to indigents. This conclusion simply restates a well-established principle of constitutional jurisprudence. In Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1955), for instance, the Supreme Court held that a state with an appellate system which made available trial transcripts to those who could afford them was constitutionally required to provide “means of affording adequate and effective appellate review to indigent defendants.” The Court noted, “It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. [citation omitted] . But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.” 351 U.S. at 18, 76 S.Ct. at 590. Although this decision arose in a fairly limited context, its fundament is not so limited and has been held to apply to representation by counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1962): Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1962). As the Court said in Douglas, “[t]here is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf,” while the indigent is left to shift for himself. 372 U.S. at 358, 83 S.Ct. at 817.

We note that the Court of Appeals for the Tenth Circuit in Earnest v. Willingham, 406 F.2d 681 (CA 10, 1969) has directly addressed the question which confronts us here and has concluded as we have. In that case the issue was whether the federal parole board, which as an administrative mater permitted the retention of counsel for parole revocation hearings, could refuse to appoint counsel for indigents. The court said, “To pose the question is to answer it for Griffin and its progeny have made it clear beyond doubt that where liberty is at stake a State may not grant to one even a non-constitutional statutory right such as here involved and deny it to another because of poverty.” 406 F.2d at 683-684.

While absolute equality between rich and poor is not required by the Constitution, we think that indigent parolees at least are entitled to as adequate a parole revocation hearing as those who have means, and in this respect representation by counsel is likely to be of substantial importance to the poor as well as the rich. The very fact that the Florida legislature has seen fit to permit representation by counsel, at least to non-indigents, we think attests to its efficacy. We agree with the court’s conelusion in Earnest v. Willingham, supra, that “a revocation hearing is no ‘perfunctory formality.’ Nor can it be said that the assistance of counsel at such a revocation hearing is an empty ritual. It may very well spell the difference between revocation and forgiveness.” 406 F.2d at 684. Such valuable service ought not be denied a parolee simply because he is poor.

We turn, then, to the second issue raised on this appeal, to wit, whether the Florida Parole Commission, at any subsequent hearing, may consider, as a basis for revocation, the two convictions against Cottle for public drunkenness. To an extent this issue turns on whether or not the recent Supreme Court decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1971), pertaining to the right to counsel in misdemeanor cases, is to be applied retroactively.

We conclude that Argersinger is fully retroactive, but that only the second of Cottle’s two convictions falls within its scope and must be excluded from the Parole Commission’s consideration.

The Court held in Argersinger that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 U.S. at 37, 92 S.Ct. at 2012. Though the Court did not specify whether the decision was to be applied retroactively, the issue not being before it, there are several factors which argue in favor of such application.

The starting point is Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), which sets forth three criteria for guiding resolution of the question whether a newly-announced rule of criminal procedure is to be applied retroactively. These are: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” 388 U.S. at 297, 87 S.Ct. at 1970. However, as the Court recently noted in Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 918, 31 L.Ed.2d 202 (1971),

“We have given complete retroactive effect to the new rule, regardless of good faith reliance by law enforcement authorities or the degree of impact on the administration of justice, where the ‘major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials . . .’ Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971).”

Given as an example was the right to counsel at trial established by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Gideon, of course, was held to be fully retroactive by the Court without opinion. See, e. g., Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 81, 11 L.Ed.2d 41, 1963. And, we are unable to perceive any difference in principle between the necessity for counsel at a felony trial and the necessity for counsel at a criminal trial for a lesser offense. As the Court said in Argersinger,

“The requirement of counsel may well be necessary for a fair trial even in a petty offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.” 407 U.S. at 33, 92 S.Ct. at 2010.

The Court went on to say that the sheer volume of misdemeanor cases “may create an obsession for speedy dispositions, regardless of the fairness of the result,” 407 U.S. at 34, 92 S.Ct. at 2011, and quoted from a study which concluded that “misdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel.” American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report 1 (1970).

We conclude, therefore, that the lack of counsel at a trial for a petty offense or misdemeanor so affects the integrity of the fact-finding process as to require that Argersinger be afforded retrospective application.

On that basis it is unnecessary for us, under the reasoning expressed in Williams v. United States, supra, and reaffirmed in Adams v. Illinois, supra, to consider the remaining two prongs of the Stovall test. Notwithstanding this, however, we think, first, that reliance by law enforcement authorities on any rule contrary to that announced in Argersinger should not, in the wake of Gideon, have been very great, and second, that the effect on the administration of justice of a retroactive application of Argersinger will be minimal.

As to reliance, we note that the handwriting of Argersinger was on the wall when Gideon was decided in 1962. Although the Court in Gideon dealt with a felony trial, it did not so limit the need of the accused for legal assistance. The Court said:

“[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” 372 U.S. at 344, 83 S.Ct. at 796.

Thus, the Court in Argersinger concluded that the rationale of Gideon “has relevance to any criminal trial, where an accused is deprived of his liberty.” 407 U.S. at 32, 92 S.Ct. at 2010.

As to the impact of our decision on the administration of justice we feel that the issue is likely to arise only in cases such as this one, e.g., in the context of parole or probation revocation, or in related situations such as that described in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971). With regard to the great bulk of misdemeanor convictions invalidated by retroactive application of the Argersinger rule any issue pertaining thereto will, almost by definition, be moot.

Having concluded that Argersinger has retrospective application, we turn finally to the issue raised with respect to the use by the Florida Parole Commission of Cottle’s two North Carolina convictions in a subsequent parole revocation proceeding, if any. Perhaps needless to say, one’s parole cannot be revoked solely on the basis of prior invalid convictions. See State ex rel. Roberts v. Cochran, 140 So.2d 597 (Fla., 1962); Clay v. Wainwright supra n. 9. Thus, the issue here turns on whether either or both of Cottle’s North Carolina convictions were invalid as having been procured in violation of Cottle’s right to counsel under the Argersinger rule.

As we have previously indicated, the district court held that neither of Cottle’s two convictions could be considered as evidence by the Parole Commission in a subsequent parole revocation hearing. We are of the view, however, that only the second of Cottle’s two convictions must be excluded from the Commission’s consideration.

It is noted that as to the first of Cottle’s convictions, on April 29, 1968, Cottle received a 20 day suspended sentence, but there is nothing in the record to show that Cottle was imprisoned for this conviction. If that is so, then the rule in Argersinger does not apply.

The Court in Argersinger made it clear that “no person may be imprisoned . . . unless he was represented by counsel.” 407 U.S. at 37, 92 S.Ct. at 2012 (Emphasis added). Thus, the court concluded, “The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.” at 40, 92 S.Ct. at 2014. (Emphasis added). Inasmuch as Cottle, for all that appears, was not deprived of his liberty when he was convicted the first time of public drunkenness, the conviction is not tainted by reason of the fact that he was not afforded counsel to represent him. However, as to his second conviction, which did in fact result in imprisonment, Cottle was constitutionally entitled to counsel, and, none having been provided, that conviction is invalid and may not be considered by the Parol Commission in any future proceeding to revoke Cottle’s parole.

The judgment of the district court is affirmed in part, and reversed in part and remanded to the district court for proceedings in accordance with this opinion.

SIMPSON, Circuit Judge

(concurring in part in the result, and dissenting in part):

Appellee Cottle was released from prison by the State, of Florida on parole. He had not completed his parole when he was convicted for public drunkenness in North Carolina in April and June of 1968. In view of these North Carolina convictions, the Florida Parole Commission conducted a hearing and decided to revoke Cottle’s parole. The majority concludes (1) that Florida denied Cottle his Fourteenth Amendment right to equal protection of the law because Fla. Stat. 947.23, F.S.A., permits a parolee with means to be represented by counsel at a parole revocation hearing but does not provide counsel for indigent parolees, like Cottle unable to afford to employ counsel, citing Griffin v. Illinois, 1955, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899, and Earnest v. Willingham, 10 Cir. 1969, 406 F.2d 681; and (2) that the second North Carolina conviction was unconstitutionally obtained because it violated Cottle’s Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, right to counsel, which the majority holds to be fully retroactive in its application, and, therefore, should not be considered by the Parole Commission in any proceeding to revoke Cottle’s parole.

I concur in the result reached that Cottle was unconstitutionally denied counsel at his parole revocation hearing before the Florida Parole Commission, but upon different reasoning than that employed by the majority.

I respectfully dissent from the majority holding that on this record the second North Carolina conviction was unconstitutionally obtained. That question is not properly in this case as I read the record before us.

I.

In Morrissey v. Brewer, 1972, 408 U. S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the Supreme Court found that the termination of parole would inflict a “grievous loss” on the parolee and, therefore, the process of termination must be accompanied with some form of procedural due process. Morrissey required that the revocation hearing provide the parolee with

. . . an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest tlie violation does not warrant revocation.

408 U.S. at 488, 92 S.Ct. at 2603, 33 L.Ed.2d at 498. To achieve those ends, it held that the parolee must be accorded

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499. The Court, however, specifically did not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent. 408 U.S. at 489, 92 S.Ct. at 2604, 33 L. Ed.2d at 499.

I would decide the question the Supreme Court left unanswered in Morrissey and conclude that without the assistance of counsel the guarantees provided by Morrissey are of little practical benefit to the prisoner who, particularly the indigent, is often ineffectual, if not incapable, in organizing and presenting the information which should be put before the parole board. Although the parole revocation hearing lacks many of the intricacies of a criminal prosecution, the lawyer’s training and skill are peculiarly tailored to effectively analyze and introduce evidentiary matter bearing on the occurrence or non-occurrence, as well as the significance, of past events, conduct the examination and cross-examination of witnesses, and reveal the mitigating circumstances and subtleties not immediately obvious to anyone but the trained lawyer. Specht v. Patterson, 1967, 386 U.S. 605, 87 S.Ct. 1209, 18 L. Ed.2d 326; United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir. 1971, 443 F.2d 1079, 1087, 1088, vacated as moot, 404 U.S. 879, 92 S.Ct. 196, 30 L.Ed.2d 159.

Due process is an adequate and more logical ground than the equal protection argument advanced by the majority, but I agree that Cottle on one ground or the other, perhaps both, was entitled to counsel to assist him at his parole revocation hearing before the Florida Parole Commission.

II.

In Argersinger v. Hamlin, supra, the Supreme Court held that

. . . no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.

407 U.S. at 37, 92 S.Ct. at 2012, 32 L. Ed.2d at 538. Since only the second North Carolina conviction for public drunkenness involved incarceration, it is only that conviction, as the majority recognizes, which can arguably involve Argersinger.

The majority opinion adopts uncritically the finding of the district judge that Cottle “was not represented at the [North Carolina] trials . . ., solely because of his indigency” and notes that neither below nor here did the state of Florida contest this finding. Supra, Note 2, page 2. The court proceeds from this basis to apply Argersinger retroactively and holds that Cottle was denied counsel because of indigency in the second North Carolina conviction and that this conviction was improperly used against Cottle in his subsequent parole revocation hearing.

The district court held no evidentiary hearing. The only facts before it were those developed at the parole revocation hearing. That record wholly fails to show that Cottle was unable to employ counsel during the North Carolina proceedings. To the contrary, he told the Florida Parole Board that he had been receiving a monthly disability income of $100. As to the second North Carolina offense he stated that he planned to live in Wilmington, North Carolina, and did not want to create “any problems” with the arresting policeman whom he felt had been abusing him.

“So that’s the reason that I got mixed up in this little affair of saying that I was drunk or public drunk, which this officer — I don’t want to have any trouble because I knew I was going to be living in Wilmington and I didn’t want to get him fired, for that simple reason I didn’t get me a lawyer that morning and get out of all of it. It only costed me about 50 — 50 or 60 dollars, it done the whole job but I didn’t — I didn’t want to do that.”

This statement by Cottle himself indicates to me that he could afford counsel at the time of the second North Carolina proceeding. It certainly does not demonstrate indigency. His statement that “it costed” 50 or 60 dollars may refer to the going price for an attorney, or it may refer to the amount that could be expected to be imposed as a fine. He served the 20 days sentence imposed, perhaps to be free from any problems with the officer, but on the basis of his testimony not because he was unable to afford counsel. Cottle’s reason for not retaining counsel was given by him:

“ . . .1 didn’t want to have any trouble because I knew I was going to be living in Wilmington and I didn’t want to get him fired, for that simple reason I didn’t get me a lawyer that morning and get out of all of it.”

The district judge held no hearing. His finding that Cottle “was not represented . . . solely because of his indigency” was picked up from the brief filed before him by Cottle’s court-appointed attorney. It had no basis in the parole revocation record, the only evidentiary record made in this, case to date.

Since Cottle’s lack of counsel at the second North Carolina trial was not shown to be caused by or even connected with indigency, the majority’s holding that Argersinger rights of Cottle were there violated, however sound it may be legally, is totally lacking in factual underpinning. On this record, the question should not be reached. With deference, I dissent from the majority’s holding in this respect.

      . The statute provides:
      “If any person shall be found drunk or intoxicated in any public place, he shall be guilty of a misdemeanor and upon conviction or plea of guilty shall be punished by a fine ... or by imprisonment for not more than 20 days in the county jail. Upon conviction for any subsequent offense under this section within a 12-month period he shall be punished by a fine or by imprisonment for not more than 20 days in the county jail or by commitment to the custody of the Commissioner of Correction for an indeterminate sentence of not less than 30 days and not more than six months.”
      § 14-335, General Statutes of North Carolina.

      . The trial court found that Cottle “was not represented at the trials . . . , solely because of his indigency.” Neither in the trial court nor here did the state of Florida contest this finding.

      . In the Notice of Hearing on Parole Violation Cottle was charged with having violated the conditions of his parole in the following respects:
      “Violated Condition 8 of your Certificate of Parole by failing to live and remain at liberty without violating the law:; in that on April 29, 1968, in the Recorder’s Court of New Hanover County, North Carolina, you received a 20 day suspended sentence for Public Drunk.
      “Also, on June 12, 1968, in the same court you received a 20 day sentence in the County Prison farm for Drunk, thereby violating Condition 4 which states in part, T will not use intoxicants of any kind to excess.’ ”

      . The order states that Cottle had violated his parole in the manner described in the Notice of Hearing, supra, n. 3.

      . The court found that although Cottle had waived the right to an attorney at his revocation hearing, both orally and in writing, such waiver was meaningless inasmuch as Cottle could not in any event have hired an attorney to represent him. The court held that “petitioner waived nothing other than the right to retain private counsel and of the loss of this right he does not complain, since it was worthless to him.” That finding is not here disputed. Moreover, the record is clear that Cottle was not told that he could have counsel appointed for him.

      . The precise question has apparently not been decided in this circuit. In Shaw v. Henderson, 430 F.2d 1116 (CA 5, 1970), we held that the Sixth Amendment right to counsel and the rationale behind Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), did not apply to a probation revocation hearing where sentencing did not occur during such proceeding. This decision was followed in Woods v. Texas, 440 F.2d 1347 (CA 5, 1971), a case involving parole revocation. However, the ratio decidendi of both of these cases was that the revocation hearings involved were not “criminal proceedings” as the term is constitutionally understood and that, as a consequence, the Sixth Amendment right to counsel did not attach. But see United States v. Bright, 471 F.2d 723 (5th Cir. 1973). Of course, these decisions do not answer the question whether counsel would be required as a matter of due process under the Fifth Amendment. For an opinion tracing the judicial decisions pro and con on the due process issue, see United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079 (CA 2, 1971).

      . It cannot be gainsaid that to the parolee faced with possible revocation a great deal is at stake. As the Court said in Morrissey v. Brewer, supra,
      “. . . the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. . . . By whatever name the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.” 408 U.S. at 482, 92 S.Ct. at 2601.
      No better example of the importance of the revocation hearing can be imagined than the facts of the case before us. After serving five years in confinement on a 12 year sentence Cottle was released in 1961 on parole. At the time he was arrested on a revocation warrant in July, 1968, for two “drunk” convictions he had less than two months to finish his entire sentence. By the order of revocation he was recommitted to the state penitentiary to serve out the seven years that remained after his 1961 release on parole.

      . The state argues that to require representation by appointed counsel would unduly slow the administrative processes of the parole system. The short answer to this contention is that if the state is willing to take the time for hearings where retained counsel are permitted to appear, it cannot object to the time consumed in hearings with appointed counsel.

      . In our recent case, Clay v. Wainwright, 470 F.2d 478 (5th Cir. 1972), we dealt with a somewhat similar question. Clay had had a probationary sentence revoked because he had five convictions of minor offenses in Florida. On account of indigency he had no counsel in the five cases. We concluded that it was not necessary to reach the retroactivity of question then because it had been the law, in this circuit before any of Olay’s convictions that the accused in such a case was constitutionally entitled to aid of counsel. Harvey v. Miss., 5 Cir. 1965, 340 F.2d 263, 271. Here, however, we find no authority for holding that such was the law in the Fourth Circuit. Therefore, we must squarely face the issue.

      . At a subsequent hearing, of course, Cottle could introduce evidence to refute this assumption, which, if proved, would provide a valid basis for excluding from the Commission’s consideration the fact of his first conviction.

      . It is noted that at Cottle’s initial parole revocation hearing, the Commission relied on this second conviction, not as evidencing a violation of the law, but as proving a violation of Condition 4 of Cottle’s Certificate of Parole which states “I will not use intoxicants of any kind to excess.” However, there was no evidence before the Commission other than the fact of conviction for public drunkenness to substantiate this conclusion. Since the second conviction was invalid, the Commission, at any future hearing, would have to have evidence independent of the conviction itself in order to make such a finding.


author:
GEWIN, Circuit Judge: JOHN R. BROWN, Chief Judge,
      CLARK, Circuit Judge, TUTTLE, Circuit Judge, PER CURIAM: TUTTLE, Circuit Judge,

text:
    Robert J. SCARPA, Petitioner-Appellant, v. U. S. BOARD OF PAROLE, Walter Dunbar, Chairman, et al., Respondents-Appellees.
    No. 71-1602.
    United States Court of Appeals, Fifth Circuit.
    April 2, 1973.
    Rehearing Denied May 25, 1973.
    John R. Brown, Chief Judge, concurred and filed opinion.
    Clark, Circuit Judge, concurred and filed opinion in which Simpson, Circuit Judge, concurred.
    Tuttle, Circuit Judge, dissented and filed opinion in which Wisdom, Goldberg and Godbold, Circuit Judges, joined.
    Tuttle, Wisdom, and Goldberg, JJ., also dissented from the denial of the petition for rehearing.

      Professor Donald Wilkes, Jr., University of Georgia School of Law, Athens, Ga., Professor Issac B. Covington, III, University of Georgia School of Law, Athens, Ga., for petitioner-appellant.
    John W. Stokes, U. S. Atty., Richard H. Still, Jr., Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
    Before JOHN R. BROWN, Chief Judge, TUTTLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
   GEWIN, Circuit Judge:

After affording careful and respectful consideration to the views expressed in the majority panel’s disposition of the instant ease, this court acting en banc reverses the decision of the panel. The district court’s judgment dismissing appellant’s complaint is therefore affirmed.

In view of the statement of facts contained in the majority and dissenting panel opinions it is necessary to set forth only brief facts in this opinion. On April 7, 1968, Scarpa entered a plea of guilty in the United States District Court for the Eastern District of New York to one count of a four count indictment, charging him with forging endorsements and uttering stolen United States Savings Bonds in violation of 18 U.S.C. § 495. The trial court imposed the maximum sentence of eight years, however, pursuant to 18 U.S.C. § 4208(a) (2), the judgment provided that Scarpa would be eligible for parole at any time after his incarceration.

At the time of his federal conviction, appellant was confined in a New York state prison serving a sentence for attempted robbery and attempted grand larceny. Having completed his state sentence, Scarpa commenced serving his sentence in the United States Penitentiary in Atlanta on July 8, 1969. Approximately three months later, on October 13, 1969, he received his initial hearing before a commissioner of the United States Board of Parole (hereinafter the Board). The Board, after considering the application, denied parole. He subsequently instituted the present action for declaratory relief. He based his claim for relief on the internal procedures and practices of the Board which he asserted denied him due process of law. He further urged that the Board did not follow the applicable regulations which govern its internal procedures because it did not fully investigate all the information he submitted in his application for parole.

The district court denied relief without a hearing. Recognizing the importance of “a full, fair hearing and consideration prior to a parole decision,” the court concluded that Scarpa’s complaint did not reveal such deprivations. Additionally, the court held that it was not improper for the Board to place controlling emphasis on Scarpa’s previous criminal record in denying parole. Ultimately, the district court’s judgment was reversed by a divided panel of this court.

Assuming, as we must, that the allegations in Scarpa’s complaint are true, the precise issue presented by this appeal is whether he has stated a cause of action upon which a federal court may grant relief. A peripheral issue, and one which is necessarily intertwined with his factual allegations, is whether the ingredients of procedural due process sought by Scarpa are necessary to bring the Board’s procedures within minimal constitutional standards. Before reviewing the precise issues of the instant appeal, we feel that a brief review of the applicable law in this area is helpful.

The Board is an independent statutory agency which is granted broad discretionary powers in parole eligibility determinations. We have previously held that:

By the language of Title 18 U.S.C.A. § 4203, the Board of Parole is given absolute discretion in matters of parole. The courts are without power to grant a parole or to determine judicially eligibility for parole. United States v. Frederick, 405 F.2d 129 (3d Cir. 1968). Furthermore, it is not the function of the courts to review the discretion of the Board in the denial of the application for parole or to review the credibility of reports and information received by the Board in making its determination.

The decision whether to grant parole is a very complicated one.

Many factors are necessarily involved in such determinations. The Board’s final determination may be based on any or all of the following: (1) length and seriousness of prior criminal record; (2) family history; (3) marital situation; (4) vocational and professional skills; (5) education; (6) physical condition; (7) living habits in a free community; (8) behavior and progress while incarcerated. The Board possesses the expertise and experience for ascertaining which factors are determinative from the unique situation presented by each applicant.

Scarpa alleges that the Board placed undue emphasis on his prior criminal convictions in denying him parole. Additionally he asserts that it did not investigate his marital situation or the job opportunities which would be available if granted parole.

Two underlying criteria guide the Board in its decision-making process. First, whether there is a reasonable possibility that the prospective parolee will remain at liberty without violating the law, and second, will such release be compatible with the welfare of society.

Parole is an integral part of the rehabilitative process for convicted felons. One’s propensity for criminal conduct is surely a strong indicator in deciding whether parole should be granted. The weight to be given Scar-pa’s criminal history is solely within the province of the Board’s broad discretion in determining parole eligibility. It is not the function of the court to second-guess the outcome of such proceedings or what factors went into- their formulation.

We see no reason why the Board should be forced to make a full scale investigation of all the supportive facts used by the prisoner in applying for parole. The Board operates under a tremendous work load. For example in the instant case, even assuming that Scarpa had a stable family and guaranteed employment, it was not unreasonable for the Board to base their ultimate decision denying Scarpa’s parole on his extensive past criminal record.

Scarpa’s constitutional challenge is likewise without merit. The specific standards for procedural due process depend upon a “complexity of factors.” The standards of due process may expand or contract depending on the particular governmental activity involved. However, we discern a distinct and controlling difference between a Board eligibility hearing and the cases relied upon by Scarpa to support his constitutional attack.

All of the authorities cited by Scarpa concern instances where the government seeks to take action which would presumptively deprive one of goods, rights, or privileges which he already possesses. Each case mandates a hearing before governmental action is initiated which might cause a deprivation.

The emerging and underlying principle is clear; once a cognizable benefit is conferred or received, governmental action must not be employed to deprive or infringe upon that right without some form of prior hearing. We are unaware, however, of any authority for the proposition that the full panoply of due process protections attaches every time the government takes some action which confers a new status on the individual or denies a request for a different status.

Whether the Board grants parole is a clearly distinguishable exercise of discretion from revoking one’s conditional freedom. The fifth amendment commands that the government shall not deprive one of his life, liberty or property without due process of law. Scarpa is a convicted felon currently incarcerated in prison for his past transgressions. This manifest deprivation of liberty is the result of a due process hearing. The sentencing judge mandated a possible confinement of eight years. Scarpa now attempts to equate the possibility of conditional freedom with the right to conditional freedom. We find such logic unacceptable.

If the Board refuses to grant parole, Scarpa has suffered no deprivations. He continues the sentence originally imposed by the court. He does not allege that the Board’s actions were arbitrary, fraudulent, unlawful or without reason, but only that it did not fully investigate his case. We have previously discussed the weakness of this allegation.

The courts have repeatedly rejected Scarpa’s contentions. These decisions are based on the realization that the granting of parole is not an adversary proceeding. The Board’s position in this regard was adequately stated in Hyser v. Reed, by Judge (now Chief Justice) Burger:

. At this stage the contact between prisoner and Board includes none of the incidents or procedural safeguards which attend a criminal trial because the Board, at this stage, must evaluate the prisoner’s record as a whole to determine whether he is a good risk for parole .

Due process rights do not attach at such proceedings. In the absence of evidence of flagrant, unwarranted, or unauthorized action by the Board, it is not the function of the courts to review such proceedings.

In sum, we find that Scarpa’s complaint construed liberally both in its factual allegations and constitutional assertions, to be without merit. The procedures adopted by the Board are not manifestly unfair but only evidence an intent to evoke a reasoned determination of whether to grant parole. It may be that Congress in its legislative wisdom will see fit to adopt the procedures here urged, but this we refuse to do by judicial fiat based on some theory of justification through constitutional compulsion. If legislation is adopted, the enactment will very likely set forth appropriate guidelines and standards of judicial review.

The judgment of the district court is affirmed.

JOHN R. BROWN, Chief Judge,

concurring :

Although I had entertained a view requiring reversal, I now join in an affirmance largely on the basis of the factors emphasized in Judge Clark’s concurrence. To it I would add that the whole complaint reflected that petitioner was demanding that within about three months of his arrival at the Federal prison, the parole authorities had to make all of the investigations and determinations which might, on Judge Tuttle’s analysis, later be required. The complaint, read with the rosy Conley glasses, asserted that it was an abuse of administrative discretion not to set all these wheels then and there in motion.

I think, on the other hand, the District Court was entitled to say that any genuine realistic plan for rehabilitation of a prisoner, whose record included the character of convictions here, should require that the prisoner at least be around for some observation, study and evaluation by prison authorities. Indeed that is the objective behind a § 4208(a) (2) indeterminative sentence.

It is easy to say that some character of factual hearing must be had to determine whether these conclusory allegations are supportable. But to apply mechanically procedural rules appropriate to an ordinary damage suit to the situation of prisoner parole problems imperils the parole structure and its beneficent aims. With unrestricted access to the nearest Federal Court and the ease with which denial of broad constitutional claims can be asserted, the prison-parole authorities might have to answer almost daily the complaints of numberless prisoners dissatisfied with the progress or lack of progress with their current requests. Federal Courts must, of course, be open to prisoners. But unless access to a Court is to become an illusion from the judicial system being powerless to act from the sheer volume of such claims, we must be certain when importuned to interfere that the complaint realistically read shows arbitrary action constituting abuse of administrative discretion.

The complaint here fails to meet that test.

CLARK, Circuit Judge,

with whom SIMPSON, Circuit Judge, joins, concurring:

The en banc majority does not disagree with Judge Tuttle’s dissenting observation that parole hearings provided to prisoners must comply with the regulations promulgated by the Board, nor does the majority disagree with the Conley v. Gibson principle that the petitioner’s complaint, which stands unchallenged in this dismissal proceeding, governs the application of the law to this case. The difference between the two views is basically factual and to me reconciliation lies in what the whole complaint asserted. A reading of the extensive quotations from Scarpa’s pleading which asserted the fact background of his case (see the original panel opinion in this case, 468 F.2d 31) makes it crystal clear that the Board had before it not just Scarpa’s criminal record, but also a great deal of other information provided by Scarpa in his application for parole and by the Board’s investigative forces. Without reservation, I concur in Judge Gewin’s opinion for the en banc court.

TUTTLE, Circuit Judge,

with whom WISDOM, GOLDBERG and GODBOLD, Circuit Judges, join, dissenting:

With deference, I dissent from the opinion and the judgment of the court. Also, with deference, I must say that I think the difference between the result reached by the majority and that which I believe to be correct arises from a failure of the majority opinion to meet the issues actually raised by Scarpa’s complaint.

Since the opinion of the court recognizes, as, of course, it must, that the allegations of Scarpa’s complaint are to be taken as true, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hargrave v. McKinney (5th Cir.) 413 F.2d 320, it seems that there should be little difficulty in stating the issues simply by reading the petition in light of any legal principles that may touch on the rights of an applicant for parole.

I regret my inability, in spite of every effort to do so, clearly enough to state the issues in the original opinion written for the court. The result is that the present majority opinion contains several critical statements dealing with Scar-pa’s allegations which I think inadequately state his contentions.

(1) The first statement which I think inadequately states the true situation (especially because of Scarpa’s primary contention that the Board acted solely on his record of convictions and did not consider his record while at Sing Sing) is the following: “Having completed his state sentence” (emphasis added). This may or may not be technically a correct statement, but it fails to state that he was paroled from his state sentence in New York.

(2) The second impression given by the language of the majority opinion which I think misses the principal basis of Scarpa’s attack is the following: “He further urged that the Board did not follow the applicable regulations which govern its internal procedures because it did not fully investigate all the information he submitted in his application for parole” (emphasis added). Scarpa’s whole case, on the other hand, was based on his contention that the Board did not investigate any of the information submitted by him at all. This is reiterated in his allegations that the Board “predicated their denial of parole with nothing before them except reports from various sources belonging to the Federal Government, solely pertaining to the criminal history of plaintiff”.

(3) The third statement that, with deference, it seems to me, misses the real point is this statement in the opinion : “The [trial] court held that it was not improper for the Board to place controlling emphasis on Scarpa’s previous criminal record in denying parole”. What seems to me to be faulty about this statement is that it implies that the trial court was dealing with a record that disclosed a Board proceeding in which several factors (such as those mentioned in the majority opinion) were considered by the Board and the Board then placed “controlling” emphasis on Scarpa’s criminal record. To the contrary, according to the complaint, “the consideration afforded the plaintiff for possible release was predicated solely upon plaintiff’s past criminal record” (emphasis in original).

(4) The fourth statement which I think indicates a failure of the court to come to grips with the real issue is the following: “Scarpa alleges that the Board placed undue emphasis on his prior criminal convictions in denying him parole”. Of course, it is true that Scarpa, in different words, alleged that the Board placed undue emphasis on his prior criminal convictions, but the truth is he alleged a lot more — so much more, in fact, that it completely changes the entire issue. He alleges that the Board placed exclusive, sole reliance on his past criminal record — this is quite a different allegation from the one stated in the majority opinion, even though it can be said to be included within the language used by the majority opinion. I would, of course, agree that it is not the court’s province to re-weigh the evidence or re-place the emphasis. The question is whether the Board can fail even to consider anything except the criminal record, and then deny the parole on that alone.

(5) Finally, in discussing Scarpa’s constitutional arguments, the majority opinion says: “He does not allege that the Board’s actions were arbitrary, fraudulent, unlawful or without reason, but only that it did not fully investigate his case” (emphasis added).

It is difficult to understand the statement that Scarpa did not allege that the Board’s actions were “unlawful” when the short statement of fact at the beginning of the majority opinion says: “He based his claim for relief on the internal procedures and practices of the Board which he asserted, denied him due process of law" (emphasis added). With deference, I would think that an allegation that he had been denied due process would fit within the definition of “unlawful” no matter how narrowly the majority of the court means to use that word. Moreover, while this pro se petitioner did not use the precise word “arbitrary” I would think that the clear statement that the Board failed to carry out its own prescribed procedures would be a sufficient allegation of “arbitrary” action.

Then, as to the concluding clause, “but only that it did not fully investigate his case,” I have already pointed out how this is a clearly inadequate statement of Scarpa’s contention. He says that the Board did not truly investigate his case at all, other than reviewing the criminal reports.

In sum, I think the issue posed by the majority is not the issue which Scarpa sought to raise at all. I think the issue is whether, when a defendant is given a maximum sentence coupled with the right to have consideration for parole at any time, all as provided under the indeterminate sentence procedures of 18 U. S.C.A. § 4208(a)(2), see footnote 2, majority opinion supra, and he is given a hearing before a parole examiner, the courts have any power to hear a complaint that he has been denied a hearing and will continue to be denied a hearing at which anything will be considered other than his past criminal record.

What is most disturbing to me here is that the court affirms a dismissal of this case by a trial court on the bare bones pleadings. The Board filed no denial of the charge that it violated its own regulations in conducting the hearing. It did not deny the allegations that it considered solely the criminal reports. Yet the trial court in granting a motion to dismiss made a factual finding “though the court supports a full, fair hearing and consideration prior to parole decision it cannot say on the facts of this case that petitioner was denied due process”. The court then found facts that appear nowhere in the record. The court merely recited what the regulations require. See 28 C.F.R. § 2.15. What is required by the regulations is precisely what Scarpa alleges did not occur and there is no contradiction — except in the government’s brief. Nevertheless, the trial court made a finding that they did occur.

There is nothing to be gained by repeating what was said in the original opinion, Scarpa v. United States Board of Parole et al., 468 F.2d 81, 5th Cir. (1972) as to the danger and cost of judicial time resulting from dismissal under F.R.Civ.P. 12(b), for failure to state a claim, especially where new and possibly constitutional questions are at issue. Byers v. Byers, 254 F.2d 205, 5th Cir. (1958), Public Affairs Associates, Inc. v. Richover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962).

The vice of the order appealed from is that it appears (and the majority now approves this result) to have laid down broad prohibitions to prisoner complaints about the fairness of a very important part of our system of criminal justice without a record by which the true facts have been developed. It is no answer to say that “the Board of Parole is given absolute discretion in matters of parole,” Tarlton v. Clark, 441 F.2d 384, 385, 5th Cir. (1971). Of course, courts cannot reverse a denial of parole, nor order parole granted, but I suggest that no member of this court would hesitate a second to join in court action invalidating either a regulation, by the Board or a proceeding by it if it were acknowledged that its action was a result of a policy or regulation to the effect that no consideration for parole would be given to any particular class of prisoners or to any person convicted of a particular crime. Such a course of action would be so obviously arbitrary and an abuse of discretion that it would be stopped in a moment. So much, then, for the “absolute discretion” proposition. In point of fact the majority opinion itself does not seem to me to stand on that basis. It stands rather on the proposition that what Scarpa says happened to him (although as I have pointed out above, I think the opinion does not adequately describe what Scarpa says happened) and what he says will continue to happen to him does not raise an issue of abuse of discretion or due process.

To the contrary, I think the petition alleges a clear case of abuse of discretion and failure to follow the regulations of the Board itself such as to require that further proceedings be pursued in order to resolve the truth or falsity of Scarpa’s complaint. Moreover, I think the recent thrust of Supreme Court opinions may well indicate that arbitrary and unfair procedures of the Parole Board are subject to court review because of want of due process. See in this connection Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) where the Court in a revocation of parole case said that “parole has become an integral part of the penological system.” The Court also said: “society has a further interest in treating the parolee with a basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.” 408 U.S. 471, 484, 92 S.Ct. 2593, 2602. Is not the same reasoning applicable to the manner in which parole applications are to be treated? Cf. Goldberg v. Kelly, 397 U. S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.

The distinction drawn by the majority between a hearing to revoke parole and a hearing to grant parole is, of course, a valid one. However, the fact that there is a distinction is still a far cry from saying that while a revocation hearing is subject to due process requirements Morrissey v. Brewer, supra, a parole hearing itself can be conducted in absolute disregard of all due process requirements. The Court in Morrissey said:

“Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 [71 S.Ct. 624, 646, 95 L.Ed. 817] (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263 [90 S.Ct. 1011, 1018, 25 L.Ed.2d 287] (1970). The question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 556] (1972). Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. ‘ [Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 [89 S.Ct. 1820, 23 L.Ed.2d 349] (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” 408 U.S. 471, 481, 92 S.Ct. 2593, 2600.

The facts have not been developed in this case. I am convinced that if they are as alleged by Scarpa, then he is entitled to relief. As was stated in the original opinion in the case, I think it inappropriate to attempt to prescribe precisely what relief might be available to him until all of the facts are known. At the very least it seems to me the government should be required to admit or deny the factual allegations in Scarpa’s complaint. Further proceedings would then depend upon the issues drawn.

I think the judgment of the trial court should be reversed, as stated in the original opinion and the case remanded for further proceedings as here outlined.

ON PETITION FOR REHEARING

Before BROWN, Chief Judge, TUTTLE, Senior Circuit Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RO-NEY, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby DENIED.

TUTTLE, Circuit Judge,

with whom WISDOM and GOLDBERG, Circuit Judges, join, dissenting:

With deference, I dissent from the denial of the petition for re-hearing for the grounds heretofore stated in my dissenting opinion.

      . See Scarpa v. United States Board of Parole et al., 468 F.2d 31 (5th Cir. 1972). On June 28, 1972, a majority of this court ordered this case to be reheard en banc Id. at 43.

      . 18 U.S.C. 4208(a)(2) provides:
      [T]he 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.

      . Compare with 18 U.S.C. § 4202 which restricts the Board’s authority to release only after one third of the sentence imposed has been served.

      . See, Brief for Appellant at 5 (filed May 27, 1971); Appellant’s Amended Reargument of Appeal at Exhibit T (filed January 17, 1972); Appellee’s Supplemental Brief at 2 (filed July 31, 1972).

      . Scarpa filed Ms complaint in the District Court for the District of Columbia, the situs of the Board. On September 29, 1970, the action was transferred to the United States District Court for the Northern District of Georgia, the locus of appellant’s confinement. See, 28 U.S.C. § 1404(a) and Young v. United States Bureau of Prisons, 125 U.S.App.D.C. 105, 367 F.2d 331 (1966).

      . See 28 C.F.R. 2.12 et seq.

      . While Scarpa’s appeal was pending, he received a second hearing before the Board in June, 1971. On the basis of representations by his counsel that he had been accorded a full and fair consideration at the second hearing, the appeal was dismissed for mootness. Scarpa v. United States Board of Parole et al., 453 F.2d 891 (5th Cir. 1971). Subsequently, Scarpa objected to the dismissal, and petitioned this court for a rehearing which was granted. A third hearing by the Parole Board is scheduled for June 1973. Appellee’s Supplemental Brief at 4 (filed July 31, 1972).
      In the petition for rehearing, Scarpa raised a number of contentions not presented previously. Appellant asserted that he was entitled to: (a) a hearing before an objective and impartial examiner; (b) adequate notice of that hearing; (c) an opportunity to confront and cross-examine witnesses; (d) a right to retained counsel; and (e) written findings of fact and conclusions of law.

      . See, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hargrave v. McKinney, 413 F.2d 320, 324 (5th Cir. 1969).

      . See, 18 U.S.C. § 4203. The Board is composed of 8 members appointed by the President with the advice and consent of the Senate. 18 U.S.C. § 4201.

      . Tarlton v. Clark, 441 F.2d 384, 385 (5th Cir. 1971) cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971); Accord, Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963); Richardson v. Rivers, 118 U.S.App.D.C. 333, 335 F.2d 996 (1964). “Claims that parole was wrongfully denied have been uniformly rejected by the courts. Even those courts that have insisted upon procedural safeguards on parole revocation, are reluctant to extend them to parole granting decision. Courts are even more reluctant to review the merits of such decisions.” President’s Commission on Law Enforcement and Administration of Justice, Task Force Report : Corrections 85 (1967).

      . 18 U.S.C. § 4203. Release by parole is merely a change in the-nature of the government’s custody of the convicted felon. 1-Iis actions are still closely supervised. The felon’s right to liberty vel non is not therefore at issue in the parole eligibility decision. United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (2d Cir. 1971).

      . See, Jones v. Salisbury, 422 F.2d 1326 (6th Cir. 1970); Riley v. Perini, 422 F.2d 397 (6th Cir. 1970). See also n. 7 supra.

      . See, Brest v. Ciccone, 371 F.2d 981, 982 (8th Cir. 1967).

      . See, Losieau v. Hunter, 90 U.S.App.D.C. 85, 193 F.2d 41 (1951).

      . The Board processes over 17,000 parole requests a year. Appellee’s Supplemental Brief at 12 (filed July 31, 1972).

      . Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).

      . Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (replevin of a debtor’s goods); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (revocation of parole); Goldberg v. Kelly, 397 U.S. 354, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (termination of welfare benefits); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (attachment of a worker’s wages); Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (termination of employment).

      . See, Thompkins v. United States Board of Parole, 427 F.2d 222 (5th Cir. 1970); Cook v. Willingham, 389 F.2d 769 (10th Cir. 1968).

      . The Board does not function as an adversary of the felon. The Board has an interest in releasing those who qualify for parole. Judge Mansfield’s explication of the Board’s role and function is particularly instructive in this regard. He stated:
      The Board’s function is a different one. It must make the broad determination of whether rehabilitation of the prisoner and the interests of society generally would best be served by permitting him to serve his sentence beyond the confines of prison walls rather than by being continued in physical confinement. In making that determination the Board is not restricted by rules of evidence or procedures developed for the purpose of determining legal or factual issues. It must consider many factors of a nonlegal nature, such as psychiatric reports with respect to the prisoner, his mental and moral attitudes, his vocational education and training, the manner in which he has used his recreation time, his physical and emotional health . . .
      Menechino v. Oswald, 430 F.2d 403, 407-408 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971).

      . 115 U.S.App.D.C. 254, 318 F.2d 225, 235 (1963), cert. denied sub nom. Thompson v. United States Board of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963).

      . “Like an alien seeking entry into the United States . . . [the prisoner] does not qualify for procedural due process in seeking parole.” Menechino v. Oswald, 430 F.2d 403, 408-409 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971); Walker v. Oswald, 449 F.2d 481 (2d Cir. 1971); Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972). Likewise, the courts have uniformly rejected the argument that counsel must be provided at parole eligibility hearings. Buchanan v. Clark, 446 F.2d 1379 (5th Cir. 1971), cert. denied sub. nom. Buchanan v. United States, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). Accord, Schawartzberg v. United States Board of Parole, 399 F.2d 297 (10th Cir. 1968).

      . The opinion is technically correct in saying that Scarpa criticized the Board for not investigating all of the items of information he supplied, but the court misses the point that the crux of his complaint is that it did not consider any of them.

      . These are:
      (1) Length and seriousness of prior criminal records.
      (2) Family history.
      (3) Marital situation.
      (4) Vocational and professional skills.
      (5) Education.
      (6) Physical condition.
      (7) Living habits in a free community.
      (8) Behavior and progress while incarcerated.

      . Presumably the court meant it would take jurisdiction if the hearing did not measure up to its idea of what is a “full, fair hearing”.


author: PER CURIAM:

text:
    Gustavo RIOS, Plaintiff-Appellant, v. OREGON AUTOMOBILE INSURANCE COMPANY, a corporation, et al., Defendants-Appellees.
    No. 72-3036.
    United States Court of Appeals, Ninth Circuit.
    April 16, 1973.
    Glenn D. Ramirez, Ramirez & Hoots, Klamath Falls, Or., for plaintiff-appellant.
    Lee Johnson, State Atty. Gen., John W. Osborn, Sol. Gen., Al J. Laue, Clayton Hess, Asst. Attys. Gen., Charles Paulson, Gerald R. Pullen, Portland, Or., for defendants-appellees.
    Before MERRILL, KOELSCH and KILKENNY, Circuit Judges.
   PER CURIAM:

This appeal is from an order granting defendants’ motion for summary judgment and dismissing the complaint. We agree with the court below that the section of Oregon’s Workmen’s Compensation Law in question, O.R.S. 656.210(3), is constitutional and is a permissible legislative classification.

Appellant complains that farmworkers, and therefore members of racial minorities, are treated differently from other workers under Oregon law. The statute provides, in pertinent part, that workers receive two thirds weekly wages while disabled, with a stated maximum and minimum. Farmworkers are subject to this rule except that their weekly wage base is calculated by taking one fifty-second of the wages earned during the previous twelve months. The difference in treatment reflects the seasonal nature of farm work. In fact, a farm-worker will receive the same benefits as any other worker earning the same annual wage.

It may well be that farmworkers generally get lower benefits than other workers because they earn less. But such economic discrimination in social welfare legislation is justified by a “reasonable basis” for the distinction. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). It is permissible for the Oregon legislature to scale workmen’s compensation benefits to wages earned.

Affirmed.