author: COFFIN, Chief Judge. LEVIN H. CAMPBELL, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Glenn D. STOCKWELL, Defendant-Appellant.
    No. 73-1102.
    United States Court of Appeals, First Circuit.
    Argued Sept. 11, 1973.
    Decided Oct. 11, 1973.

      Stephen W. Silverman, Springfield, Mass., for appellant.
    Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This is an appeal from a conviction for refusing to submit to induction, 50 U.S.C. App. § 462(a). On March 17, 1970 appellant was classified 1-A; he requested neither a personal appearance nor an appeal of this classification. On April 20, 1970 the local board ordered him to report for a physical examination. The notice included the statement: “If you have any physical or mental condition which, in your opinion, may disqualify you for service, bring a physician’s certificate describing that condition, if not already furnished to your local board.” When appellant reported for the physical on May 22, 1970, he brought a psychiatrist’s letter, addressed to the local board, describing his mental condition and concluding that he was disqualified for induction into the Armed Forces under the provisions of ¶¶ 2-33 and 2-34 § XVI of Army Reg. 40-501.

He was then referred by the Armed Forces Examining and Entrance Station (AFEES) to an Army psychiatrist who found appellant “fit for duty”. A surgeon with the Department, of the Army later reviewed appellant’s medical file and determined that he was medically qualified. On July 10, 1970 the local board, without reviewing the medical file which had been forwarded to them by AFEES, and based on the Statement of Acceptability ordered appellant to report for induction on August 18, 1970.

Appellant’s first contention is that his conviction must be reversed because the failure of the local board to reopen his classification and consider his case for medical deferment rendered his induction order invalid. His second contention concerns a post-induction order claim for C.O. classification and a challenge based on the board’s failure to communicate its reason for refusing to reopen his classification. We deal only with his first contention, because, while recognizing that this case requires us to do some fine line drawing, we believe appellant’s argument to be sound.

The district court placed a great weight on appellant’s failure to request a medical deferment or to appeal his 1-A classification. However, personal request is not the only way to instigate reopening of a registrant’s classification. The board may reopen on its own motion. While there is wide discretion in the board in ruling on the merits of a reclassification request, the board is more limited when deciding to reopen a case:

“Even if the local board denies the requested classification, there is a crucial difference between such board action and a simple refusal to reopen the classification at all .... [Wjhether or not a reopening is granted is a matter of substance, for with a reopening comes the right to be heard personally and to appeal.” Mulloy v. United States, 398 U.S. 410, 414-415, 90 S.Ct. 1766, 1770, 26 L.Ed.2d 362 (1969).

This circuit has ruled that there is no logical basis for differentiating between a registrant’s filed request and information from other sources which indicates a nonfrivolous ground to reopen. United States v. Ford, 431 F.2d 1310, 1312 (1st Cir. 1970). This holding is reinforced in appellant’s case, for the order to appear for the physical stated: “If you have any physical or mental condition which, in your opinion, may disqualify you from service in the Armed Forces, bring a physician’s certificate describing that condition, if not already furnished to your local board.” We can readily understand how a registrant might reasonably interpret such a notice as indicating that bringing a physician’s letter to AFEES was a permissible alternative to requesting a deferment from the local board. The letter appellant provided was addressed to the board and AFEES did as a matter of course send the letter along with its own findings to the local board.

“Though the language of 32 C.F.R. § 1625.2 is permissive, it does not follow that a board may arbitrarily refuse to reopen a registrant’s classification .... [W]here the registrant has set out new facts that establish a prima facie case for a new classification, a board must reopen to determine whether he is entitled to that classification. Not to do so . . . is an abuse of discretion.” Mulloy v. United States, 398 U.S. 410, 415-416, 90 S.Ct. 1766, 1770, 26 L.Ed.2d 362 (1969). The test, for such a prima facie case is the assertion of “nonfrivolous allegations of facts that have not been previously considered by his board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification . . . unless the truth of these new allegations is conclusively refuted by other reliable information in the registrant’s file.” Id. at 416, 90 S.Ct. 1766 at 1771.

The district court found the local boai’d to have acted properly on the grounds that “A simple letter from a doctor in contradiction to the Armed Forces Examining and Entrance Station’s medical finding that the registrant is fit for duty does not require [sic] a prima facie claim for a medical deferment.” In so holding it relied on this court’s opinion in United States v. King, 455 F.2d 345 (1st Cir. 1972). Reliance on that case was misplaced. In King two of the asserted challenges to the validity of the induction order were based on claims for medical deferment and the failure of the board to reopen. There were two letters not introduced in evidence at the trial which allegedly were brought to the physical examination and indicated a stomach condition. No testimony indicated that the condition these letters were supposed to describe was a disqualifying one. United States v. King, 455 F.2d 345, 349 (1st Cir., 1972). In this case, however, both in appellant’s file and introduced in evidence was a detailed letter which included the psychiatrist’s conclusion that the registrant was disqualified for service. The second medical claim in King was that a statement on Forms 88 and 89 that King “takes psychedelic drugs during 2-1/2 years” made out a prima facie claim of a “personality disorder” which would entitle him to a medical deferment. Id. at 349. The problem with both King’s claims was that they were too brief, that they indicated summary conclusions and therefore foreclosed meaningful evaluation. Id. This led to our conclusion in King that there was nothing brought to the attention of the board which permitted serious examination. In the present case, however, a sufficiently detailed psychiatrist’s letter, addressed to the board, was provided and was accompanied by a conclusion diametrically opposed to that of AFEES. It cannot be said that the opinion of Stockwell’s psychiatrist is “conclusively refuted by other reliable information”, simply because AFEES found him “fit for service”. Put another way, we think the existence in the file of contradictory expert opinion specifically directed to the board, concerning a registrant’s medical condition precludes a finding of conclusive refutation, unless the opinion of the registrant’s physician is facially superficial. The most relevant authority, United States v. Miller, 455 F.2d 358 (9th Cir. 1972), would support a requirement that the board examine and evaluate all AFEES files forwarded to the board for classification. We need not reach that point. In this case not only did the board fail to go through such a process, it did not even take note of a letter addressed to it. Where the AFEES file contains a letter, brought by the registrant pursuant to information in the examination notice, and containing a detailed statement addressed to the board, the board has a duty of reexamining the file.

Of course, the board has the discretion to reject the psychiatrist’s opinion and accept the AFEES advice. But to do so it must reopen, examine the file and rule on the merits. It would thereby preserve the registrant’s right to appeal. The final decision cannot be left to AFEES: “While medical acceptability may be determined by AFEES, 32 C.F.R. § 1628; Vasilj v. United States, 425 F.2d 1134, 1136-1137 (9th Cir. 1970), classification is not. The classification process is discretionary and demands that the board take an overall view, and form a composite picture of the registrant under applicable physical, mental and moral standards .... The board’s failure to review new information submitted by appellant is not consistent with the demands thus imposed . . . . [T]he board’s discretion to reopen must be exercised in an intelligent manner, based upon a review of all the information then available to them, including information forwarded for medical evaluation.” United States v. Miller, 455 F.2d 358, 360 (9th Cir. 1972).

This case falls squarely within our decision in Ford, supra. Here as in that case the information in the doctor’s letters evidenced apparently competent medical advice and concluded with the opinion that appellant was entitled to a different classification. The failure of the board to consider the letter was not cured by the Army psychiatric examination. 431 F.2d at 1313. The local board failed in its duty to exercise its broad discretion, and the appellant was deprived of his procedural rights to appear and appeal within the Selective Service system. As a result the appellant’s conviction cannot stand. Mulloy v. United States, supra.

Reversed.

LEVIN H. CAMPBELL, Circuit Judge

(dissenting).

This is a close case, and I can appreciate the court’s position. Nonetheless, I think it unreasonable and perhaps even slightly outrageous to have expected the Board to treat as a request to reopen a doctor’s letter which was not transmitted to it by appellant or someone on his behalf. The Board might naturally assume that if appellant wanted it, apart from AFEES, to consider his mental suitability, he or someone on his behalf would have told it so. I agree with our holding in Ford, supra, that it is of little consequence whether the Board receives such a request to reopen from the registrant, his physician or someone else; further, the request need not be formal: it is enough if a request may be inferred from information sent. But I do not think that a Board should be faulted for not on its own leafing through medical files received from AFEES and spotting a prima facie claim. Especially since appellant never evinced any further desire to pursue the matter before the Board, I see no reason to treat the induction order as void. Its nullification in these circumstances seems an undeserved windfall.

485 F.2d — 45

      . The Army Regulations list as cause for rejection for induction personality disorders including:
      “a. Character and behavior disorders, as evidenced by
      (1) . . . antisocial attitudes or behavior which, while not a cause for administrative rejection, are tangible evidence of' an impaired character'ological capacity to adapt to military service.
      “b. Character and behavior disorders where it is evidence of history and objective examination that the degree of immaturity, instability, personality inadequacy, and dependency will seriously interfere with adjustment in the military service as demonstrated in school, with employers and fellow-workers, and other society groups.” Army Regulation" 40-501.

      . The local board may reopen the registrant’s file on request of the registrant, the government appeal agent, any person claiming to be a dependent of the registrant, or any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment. 32 C.F.R. § 1625.3(a).

      . The local board may reopen upon its own motion “if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification.” 32 C.F.R. § 1625.2(b).

      . The psychiatrist's letter states that lie undertook a one hour diagnostic interview, records the medical history given by appellant and then states some of the psychiatrist’s own observations. Some of those observations follow:
      “In terms of his emotional adjustment he tends to be timid, passive and ineffectual * * *
      .Although he sees himself as mild mannered and wanting to avoid fights, there is an undercurrent of angry resentment of what lie considers unwarranted curtailment of his personal freedom, particularly by his father and other authority figures. lie tends to express this hostility in passive ways, by inefficiency, helplessness, obstructionism, and neglect of his own hygiene and health. It was striking that in his interview witli me, he seemed to lose the train of thought, with blocking, difficulty in maintaining an orderly pattern of associations, and he appealed to me several times to help him remember what he had started talking about. The overall impression was that there was a marked impairment of functioning due to severe anxiety.”
      The doctor then sets forward his diagnosis of anxiety reaction, and his prognosis of increased ineffectuality due to appellant’s apprehensions about the imminent possibility of facing military service. lie concludes that appellant “is disqualified for induction into the Armed Forces under the provisions of paragraphs 2-33 and 2-34, Section XVI of AR 40-501.”

      . The AFEES report also recorded history given by appellant describing it as having been “rather rhetorical . . . almost a rehearsed tale”. It states the following as the examining psychiatrist’s complete observations :
      “Mr. Stoclcwell is a rather disorganized looking young man with long, dishevelled hair, with a good deal of rambling and repetitiousness as described above. However, formal mental status reveals good memory, excellent difficult arithmetical performance, and fair conceptual thinking. His theme is rather unbelievable in the somewhat timeliness of the psychological phenomenon described. It is significant to note that except for the standard experiences described, he is unable to really validate much of his history. Diagnosis: Ho particular diagnosis found. I suspect strongly that this man may be malingering, unless there is some adequate, objective validation. I-Ie admits that he saw a psychiatrist one month ago, who only was able to report in his statement that bit of history as presented to him himself.
      Recommendation : Fit for duty.”

      . We fail to understand the government’s reliance on two other 9th Circuit cases. In Vasilj v. United States, 425 F.2d 1134 (9th Cir. 1970), decided prior to Miller, supra, the doctor’s letter said the registrant suffered from conditions which would not have entitled the registrant to a different classification. Hor was the information in the doctor’s letter new as the hoard had seen the same contention made by the registrant. In United States v. DeLiso, 468 F.2d 813 (9th Cir. 1972), decided subsequent to Miller, the physician’s letters were not presented at the preinduction AFEES physical but at the induction center during the induction physical and so never reached the board. The court specifically said that this case did not fall within the purview of Miller. Id. at 814.


source: Caselaw Access Project

author: DONALD RUSSELL, Circuit Judge:

license: Public Domain

text:
    Martin P. MARSTON, Appellee, v. R. M. OLIVER, Superintendent of the Virginia State Farm, Appellant.
    No. 71-1329.
    United States Court of Appeals, Fourth Circuit.
    Argued June 6, 1973.
    Decided Oct. 9, 1973.

      Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., Burnett Miller, III, Asst. Atty. Gen. of Va., on brief) for appellant.
    James L. Sanderlin, Richmond, Va., court-appointed (McGuire, Woods & Battle, Richmond, Va., on brief) for appellee.
    David G. Karro, Roanoke, Va., on brief for Wayne A. Garrett, amicus curiae.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

The petitioner in this habeas proceeding was convicted in Virginia of the offense of driving a motor vehicle on November 15, 1968, while his driver’s license was suspended or revoked. At trial, he, though indigent, was not provided with counsel. After conviction, He received both a prison sentence and a fine. While imprisoned under this sentence, he filed this proceeding. He has since been released from custody. He contends that, although he has served his sentence and paid his fine, his action is not mooted, since his conviction laid him open to collateral consequences of a civil nature, i. e., the possible revocation of his driver’s license. As a result of this conviction and his prior record of convictions, the petitioner did become subject to proceedings for the revocation of his driver’s license under the Virginia Habitual Offender Act, and proceedings for this purpose were begun in early 1970, as a result of which his driver’s license was revoked for a period of ten years. On the factual record, the District Court, 324 F.Supp. 691, found that the proceedings had not been mooted by the termination of petitioner’s imprisonment, and proceeded to rule invalid the conviction because the petitioner, an indigent, was not afforded counsel. It, however, gave the State leave to retry the petitioner. The State has appealed. We reverse.

There is no dispute between the parties that, had the trial occurred after the decision in Argersinger v. Hamlin (1972) 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, the uncounseled conviction of the petitioner, resulting as it did in a sentence of imprisonment, would have been open to constitutional attack. This case, however, was tried and disposed of prior to Argersinger but the District Court prophetically anticipated in its decision that the Supreme Court would, as it shortly thereafter did in Argersinger, extend the principle of Gideon to misdemeanor convictions where the sentence entailed imprisonment. The decision of the District Court thus rests ultimately on the principles later enunciated in Argersinger and the rights of the petitioner must be resolved on the basis of that authority and, more particularly, on whether that authority is to be applied retroactively. It is important, however, to note that petitioner does not rely on Argersinger, applied retroactively, to relieve him of imprisonment or to secure his release from custody. What he is seeking by this proceeding is to be relieved of the possibility in a civil proceeding, under State procedures, of the loss of his driver’s license on account of such conviction. In short, the issue posed by the petitioner on this appeal is whether Argersinger is to be applied retroactively in order to relieve a defendant, not of the actual sentence imposed on him, but of the collateral consequences of such a conviction on a civil right of the defendant. We are of opinion that Argersinger is not to be so applied retroactively.

The determination whether in this unique situation, Argersinger is to be applied retroactively, must begin with an analysis of the scope of the principle enunciated by the Supreme Court in Argersinger. Argersinger is a considerably narrower decision than Gideon. In Gideon, the felony conviction, whatever the penalty resulting, whether fine or imprisonment or" both, is declared invalid, if uncounseled. In Argersinger, on the other hand, the Court only invalidated any imprisonment flowing from the conviction; it left intact and outstanding the conviction itself. The decision seems to have been carefully framed to assure that no one, whether convicted of a misdemeanor or felony, should suffer inprisonment as a result of an uncounseled conviction. It was the loss of liberty by the individual, with which it was concerned and towards which it directed its command. But it withheld relief in misdemeanor convictions for anything other than loss of liberty. Specifically, it did not extend its umbrella of invalidity over convictions involving fines, despite the fact that such a sentence might, especially in the case of an indigent, involve real hardship and privation, and despite the fact that, so far as the collateral consequences on the defendant’s right to the continued use of his driver’s license would be the same, whether his sentence was a fine or one of imprisonment. In sum, Argersinger purported to excise from the misdemean- or conviction only those consequences that related to loss of liberty and imprisonment. So far as its direct or collateral consequences are the loss of liberty on the part of the defendant, Argersinger applies, and while it is perhaps unnecessary to this decision, we are of opinion that it applies retroactively. But, where it does not carry with it these collateral consequences of imprisonment but merely lays the defendant open to a civil proceeding wherein a civil right may be involved, we are of opinion that'neither the purpose nor limited scope of the decision in Argersinger suggests that its principle should be applied retroactively.

Cottle v. Wainwright (5th Cir. 1973) 477 F.2d 269, which gave retroactive application to Argersinger, illustrates the distinction we would make. That case dealt with a probation revocation hearing in which the uncounseled misdemeanor conviction was urged as the basis for revocation. The conviction, if available as a basis for revocation, would have meant the automatic and immediate recommitment to prison of the defendant. Under those circumstances, where the immediate loss of liberty on the part of the defendant would result from the uncounseled conviction, the Court very properly applied Argersinger retroactively. In so doing, the Court was applying Argersinger to the very situation against which the decision was directed, i. e., the imprisonment of the defendant on account of an uncounseled conviction. That, however, is not our situation, where the only collateral consequence is either the right to a driver’s license or the right of continued exercise of one already granted.

Not only does it seem that Argersinger was not intended to apply retroactively to collateral consequences of a civil character as a result of an uncounseled misdemeanor conviction; its retroactive application in this context would not comport with the standards generally applied in determining the retroactivity of criminal decisions. Fundamental to a determination of retroactivi-■ tv is the effect that such a determination will have on the administration of justice. Stovall v. Denno (1967), 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Adams v. Illinois (1972) 405 U.S. 278, 284, 92 S.Ct. 916, 31 L.Ed.2d 202. In upholding the retroactivity of Argersinger in the factual context of the Cottle Case, the Court dismissed the argument that a retroactive application would seriously affect the administration of justice with the observation that, “* * * 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.” (477 F.2d at 274). But, if Argersinger, applied retroactively, is to open up traffic convictions terminated by service of sentence — which is the situation here — to attack for the sole, collateral purpose of providing a basis for invalidating a revocation or suspension of a driver’s license, then the entire administrative procedure under both point-system statutes and habitual offender acts, as they were conducted prior to Argersinger, will be caught up in an impossible net of repetitive prosecutions, imposing an intolerable burden on traffic courts, if offending drivers are not to be turned loose upon the highways. The difficulties that such a decision would entail are well illustrated by this very case.

The conviction, against which the petitioner directs his challenge in the present petition, occurred on May 27, 1969. It was based on a charge that he had operated a motor vehicle “with revoked or suspended license.” In its decision invalidating the proceedings, the District Court did not void that conviction absolutely but, even though the sentence had been served and no additional sentence could be imposed under Pearce, it authorized the State, within a reasonable time, to retry the defendant, such retrial, if successful, to be had for the sole purpose of validating a revocation of the defendant’s driving license. This was in accordance with standard procedure. See Mordecai v. United States (1969), 137 U.S.App.D.C. 198, 421 F.2d 1133, 1137. That, it would seem, at least specifically, would impose no particular hardship on the State in this ease and would have little effect on the State’s program of improving highway safety. The offense was a simple one, easily proved. And there was little doubt of the defendant’s guilt. At his trial in County Court, he had actually plead guilty. He appealed for a new trial in Circuit Court apparently because he thought he might thereby secure a lesser sentence. But, if that conviction is reopened retroactively because of its collateral civil consequences and the defendant is given a new trial, he will undoubtedly attack the charge on the ground that the suspension of his license rested in turn on convictions of “driving while intoxicated” on August 21, 1957 and March 23, 1966, contending that those convictions, resulting in sentences already served were uneounseled and were themselves invalid. Assuming that those convictions were uncounseled and that, in those circumstances, the Court would do as the District Court has done here, i. e., permit a retrial where counsel would be furnished the defendant, it would mean that two more trials will become necessary in order to give a basis for invalidating the defendant’s driving license. But this will not end the procession of trials. The petitioner is actually challenging the fact that, as a result of his traffic convictions, he came within the statutory qualifications of an habitual traffic offender, liable for revocation of his driver’s license for ten years. To meet that requirement, the petitioner must have been convicted at least an additional time. But the petitioner will undoubtedly claim that this third conviction, too, was uncounseled and it will be necessary to go back and try an offense that happened, as of time of retrial, almost ten years ago. To secure the revocation of* the petitioner’s driver’s license in this case, if Argersinger is to be given the retroactive effect urged by the petitioner, the State would thus be forced to retry the petitioner at least three times, even though no sentence could result from the convictions that might follow. It must be remembered, too, that a holding that Argersinger is to be given retroactive application where any collateral consequences of a civil nature may have resulted, would not be restricted only to habitual offender revocations; it would apply equally to all revocations or suspensions imposed under the point-system. And the number of such suspensions or revocations is myriad. It is doubtful that the traffic courts, burdened as they already are, are adequate to carry this additional burden. Yet the alternative is to allow a large body of criminally careless drivers, whose past conduct represented a serious hazard to the traveling public, to resume their use of the public highways. When the careless driver accounts for more deaths annually than was the death toll in the Vietnam war for a like period, such an alternative seems entirely unacceptable.

We would not like to be misunderstood; We find no quarrel with the result reached in Cottle, where the effect of the uncounseled prior misdemeanor conviction was the automatic and immediate loss of liberty on the part of the defendant. In such a situation, we, too, would find Argersinger retroactive. Where we would not give it retroactive application is in those cases, like that here, in which the conviction provides merely the possibility of a basis for a loss of a civil right in a subsequent civil proceeding but involves no warrant for imprisonment and where any retroactive application would result in a substantial frustration of a valuable public policy of barring the public highways to criminally careless drivers who represent a peril and hazard to the traveling public.

Reversed.

      . Between 1957 and 1966 the petitioner liad been convicted three times for driving a car while under the influence of intoxicants, five times for reckless driving, and five times for driving while his driver’s license was suspended. During this period, he had had his driver’s license revoked four times. AVhile the Habitual Offender Act required at least three convictions of any of the above offenses as a basis for revocation of a driver’s license, at least one of such convictions had to be subsequent to June 28, 1968, which was the effective date of the Act. The con-viction on May 27, 1969, arising out of the November, 1968 offense, was the only one that satisfied this requirement.

      . Va.Code Ann. Secs. 46.1-387.1-12 (Supp. 1968). For a discussion of the Act, see Huffman v. Commonwealth (1970) 210 Va. 530, 172 S.E.2d 788; Estes v. Commonwealth (1971) 212 Va. 23, 181 S.E.2d 622; McIntosh v. Commonwealth (1972) 213 Va. 330, 191 S.E.2d 791. Under the statute, “a proceeding to revoke an automobile driver’s permit or license is a civil and not a criminal proceeding; * * * the revocation is not for the punishment of the offender, but is for the protection of the public in removing from the highways a dangerous driver.” (172 S.E.2d at 789).
      The general validity of such statutes is reviewed in Annotation, 9 A.L.R.3d 756.

      . Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

      . This is made clear in the concluding paragraph of Justice Douglas’ opinion (407 U.S. at 40, 92 S.Ct. at 2014) :
      “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.”
      Justice Powell, in his opinion, concurring in the result, summarizes the majority holding thus (407 U.S. at 53, 92 S.Ct. at 2020) :
      “ * * * Xf counsel is not appointed or knowingly waived, no sentence of imprisonment for any duration may be imposed.”
      Justice Powell, also, noted that the holding of the Court made a clear distinction in its decision between the loss of liberty and any other rights, which we would conclude would embrace such collateral effects as a loss of one’s driving license. See pp. 51-52 of 407 U.S., 2006 of 92 S.Ct.

      . Matthews v. Florida (5th Cir. 1972) 463 F.2d 679, is contrary to the result reached by us but we find it unpersuasive.

      . North Carolina v. Pearce (1969) 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656.

      . In 1968, traffic accidents account for 54,862 deaths and 4,400,000 instances of personal injuries. Actually, “[M]otor vehicle accidents account for almost as many deaths in this country as all other categories of accidents combined * * People v. Samuel (1971) 29 N.Y.2d 252, 327 N.Y.S.2d 321, 277 N.E.2d 381, 384.
      For specific reference to the situation in Virginia, see, Note, The Virginia Habitual Offender Act, 26 Wash. & L.Rev. 271 (1969).


author: GODBOLD, Circuit Judge:

text:
    Brisco HUFF, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. N. D. CASS COMPANY OF ALABAMA, Defendant-Appellee.
    No. 71-2842.
    United States Court of Appeals, Fifth Circuit.
    Sept. 4, 1973.

      U. W. Clemon, Birmingham, Ala., Nathaniel Jones, NAACP, William D. Wells, New York City, for plaintiff-appellant.
    Charles L. Reischel, EEOC, Washington, D.C., Morris J. Bailer, New York City (NAACP Legal Defense and Educational Fund), Julia P. Cooper, EEOC, Washington, D.C., Jack Greenberg, New York City, amicus curiae.
    Perry Hubbard, Tuscaloosa, Ala., O. S. Burke, Jr., Marion, Ala., for defendantappellee.
    C. V. Stelzenmuller (Thiokol Chem. Corp.), Birmingham, Ala., Milton A. Smith, Gen. Counsel, Washington, D.C. (The Chamber of Commerce of the U.S.A.), Lawrence M. Cohen, Chicago, Ill., amicus curiae.
    Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

       Judge Gewin did not participate in this decision.

   GODBOLD, Circuit Judge:

The central issue in this class action is whether the trial court properly dismissed the action on the basis of a preliminary determination that the single plaintiff representing the class was not entitled to relief on the merits of his individual claim.

The plaintiff, Brisco Huff, was a black who claimed that his employer, N. D. Cass Company, laid him off and failed to recall him from racial motivations. Proceeding under Rule 23, Fed.R.Civ.P., he charged also that the employer discriminated against black workers as a class by restricting them to lower paying, more menial jobs and by operating a discriminatory recall policy. The class was composed of “black persons who are employed or might be employed by the defendant company who have been and continue to be or might be adversely affected by the practices complained of herein.”

The court conducted a preliminary evidentiary hearing on plaintiff’s individual claim of racially motivated layoff and failure to recall, and following the hearing found that the failure of the company to recall plaintiff was based entirely upon his unacceptable performance of duties and not in whole or in part upon racial considerations, and that, therefore, plaintiff was not a member of the class and could not adequately protect its interests as required by Rule 23(a)(4).

We agree with the panel opinion, 468 F.2d 172, that the District Court was not plainly erroneous in its findings on the motivations for plaintiff’s nonrecall and that the court did not err in limiting discovery. As to the right of Huff to maintain the class action, this court is committed to the principle that the standard for determining whether a plaintiff may maintain a class action is not whether he will ultimately prevail on his claim. Miller v. Mackey Int’l, Inc., 452 F.2d 424 (CA5, 1971); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (CA5, 1969). Thus the trial court applied an incorrect standard, and its decision must be vacated and the cause remanded for consideration under the correct standard. Possibly this court might say no more than that, cite Johnson and Mackey, and stop. But this would not be a response to the inherent difficulties, which have surfaced in this case, of meshing the power and duty of the court to inquire into maintainability —which requires the satisfaction of all the requirements of Rule 23(a) and at least one of the requirements of 23(b) —with the generalized statement that the court should not exclude plaintiff as a representative because he cannot succeed on the merits of his individual claim. A growing body of case law, and in this case the briefs of the parties and the several amici and the struggles at oral argument to articulate whether and to what extent the court may inquire into plaintiff’s claim, all exemplify the opposing tensions.

Johnson and Mackey do not hold that there is no inquiry which a trial court may make before the complex and often expensive machinery of the class action moves ahead. Rule 23(c)(1) provides that “as soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” This language of the Rule, the cases, and the texts, all articulate the desirability of determining maintainability of the class action at what has been called “the earliest pragmatically wise moment.” Berman v. Narragansett Racing Ass’n, 48 F.R.D. 333, 336 (D.R.I.1969). Accord, Burns v. Thiokol Chemical Corp., supra. See also, Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39 (1967). Action by the court on maintainability may be triggered by motion of the parties or on the court’s own initiative.

Maintainability may be determined on the basis of pleadings, see Hyatt v. United Aircraft Corp., 50 F.R.D. 242 (D.C.Conn.1970), cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) but “[t]he determination usually should be predicated on more information than the complaint itself affords.” 7A Federal Practice & Procedure (Wright & Miller ed.) § 1785, p. 131. The court may, and often does, permit discovery relating to the issues involved in maintainability, and a preliminary evidentiary hearing may be appropriate or essential as a part of the vital management role which the trial judge must exercise in class actions to assure that they are both meaningful and manageable. We do not accept the idea that to avoid infringing the plaintiff’s and the class’ right to jury trial district judges must be barred from making any evidentiary inquiry; we reject also the argument that the judge is inextricably bound by the face of the pleadings.

Recognizing that preliminary inquiry may be appropriate, we turn to consideration of what the scope of that inquiry should be.

First, some background. The federal courts have a particularly vital role in cases such as this. To them alone Congress has assigned the power to enforce compliance with the strictures against racial discrimination in employment under §703 (a) of Title VII.

When, as frequently is the case, the alleged discrimination has been practiced upon the plaintiff because he is a member of a class that is allegedly discriminated against, the pourt trying a Title VII suit bears a special responsibility in the public interest to resolve the employment dispute by determining the facts regardless of the individual plaintiff’s position ....

Hutchings v. United States Indus., Inc., 428 F.2d 303, 310 (CA5, 1970).

The trial judge in a Title VII case bears a special responsibility in the public interest to resolve the employment dispute, for once the judicial machinery has been set in train, the proceeding takes on a public character in which remedies are devised to vindicate the policies of the Act, not merely to afford private relief to the employee.

Id. at 311.

At the appellate level we have made clear that we give full scope to Title VII, recognizing, as we do, that employment discrimination is “one of the most deplorable forms of discrimination known to our society, for it deals not just with an individual’s sharing in the ‘outer benefits’ of being an American citizen, but rather the ability to provide decently for one’s family in a job or profession for which he qualifies and chooses,” and recognizing also that racial discrimination, which is by definition class discrimination, is a particularly virulent form of employment discrimination, because it is generally both subtle and pervasive. We have applied a broad approach to standing, stressing the individual’s role as private attorney general taking on the mantle of the sovereign.

Second, against this background some specifies. “On the merits” is an elusive term at best, not wholly suitable as a guideline in this situation. In a sense much that a plaintiff alleges with respect to his individual claim goes to the “merits” of his claim. A plaintiff who seeks to represent all employees on a claim of discriminatory denial of promotions might, if the case goes to trial, lose on his individual claim because it turns out that he was never employed by the defendant. Retrospectively one might say he lost “on the merits.” Yet there is no doubt that the court could lay bare at a preliminary stage this fact concerning the plaintiff, and, having done so, conclude plaintiff was not a proper representative because he lacked the nexus with the class and its interests and claims which is embraced in the various requirements of 23(a) and (b). It is inescapable that in some cases there will be overlap between the demands of 23(a) and (b) and the question of whether plaintiff can succeed on the merits. In neither Johnson nor Mackey was the court required to address itself to such a particularized situation. In Mackey the District Court’s order denying the motion to proceed as a class action stated only that it was not “presently apparent” that requirements of Rule 23 were met, without defining the respects in which compliance was lacking. On appeal this court, construing this generalized order, concluded that the District Judge “may have considered whether the petition stated a cause of action or whether [plaintiff] Miller would succeed on the merits,” 452 F.2d at 427, and directed that the court should confine itself to 23(a) and (b) and not “assess the likelihood of success on the merits before approving a class action.” Id. at 428.

Recognizing the tensions between two policies, one of which says find out about the plaintiff’s claim at an early stage and the other of which says just don’t find out too much, it seems to us that a class plaintiff who otherwise meets the demands of 23(a) and (b) should not be found to be disqualified solely by an advance determination that his claim is predictably not a winning-claim and that, therefore, he cannot adequately represent the class as mandated by 23(a)(4).

Huff asks that he be allowed a de novo preliminary-stage hearing on maintainability, since the hearing conducted was not described as ^uch. We agree with the panel that the District Court need not hear again under a new label what it has already heard. It need only review the facts developed at the original hearing, supplemented to the extent, if any, that appears to the court to be appropriate, and, applying the correct legal standard, decide whether plaintiff has the nexus required by Rule 23 to permit him to maintain the class action (omitting, of course, that plaintiff had a “losing” claim).

Huff asks also that if the class action may be maintained he be permitted a retrial of his individual claim along with the claims of the class. While under the peculiar circumstances the ultimate merit of his claim was prematurely tried he has, nevertheless, had his day in court on that issue, and the court need not give him a second bite at the apple.

The order of the District Court denying relief to plaintiff on his individual claim is Affirmed. The order denying to plaintiff the right to maintain the class action and dismissing the class action is Vacated and the cause is remanded to the District Court for consideration of that issue under correct legal standards, and for such other proceedings as may be appropriate.

      . Rule 23. Class Actions
      (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
      (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
      (1) the prosecution of separate actions by or against individual members of the class would create a risk of
      (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
      (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
      (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
      (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjucication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions ; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (0) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
      (c) Determination by Order Whether Glass Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Glass Actions.
      (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.
      # # sfc # :*s

      . The court’s opinion does not specifically refer to the motivation for Huff’s layoff. He was, however, laid off along with other employees in December at a time when the company, a seasonal manufacturer of children’s toys and furniture, normally closes down production and lays off its production force. While not explicit in the opinion it is implicit that the layoff of Huff was not for racial motivations.

      . In Burns v. Thiokol Chemical Corp., 483 F.2d 300 [C.A.5, 1973] we have recognized that the individual class action plaintiff may be entitled, in support of his individual claim, to discovery of-empirical data concerning the employer’s overall pattern of conduct with respect to the discrimination allegedly practiced against the class of which plaintiff is a member. In view of the information which the defendant Cass was required to supply to Huff, as described in the panel opinion, we conclude that the judge did not reversibly err in his rulings concerning discovery.

      . The issue in this case is with determination of maintainability at an early stage, in this instance before any class action procedures were permitted to begin. It is clear that if the class action does proceed the ultimate failure of the plaintiff to establish his individual claim will not bar class action relief. Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (C.A.8, 1970).

      . But the provision of Rule 23(c) (1) is not to be employed as a substitute for a Rule 12 motion to dismiss. Miller v. Mackey Int’l, Inc., 452 F.2d 424 (C.A.5, 1971).

      . 7A Federal Practice & Procedure (Wright & Miller ed.), § 1785 p. 131.

      . See Mersay v. First Republic Corp., 43 F.R.D. 465, 469 (S.D.N.Y.1968); Vernon J. Rockier & Co. v. Graphic Enterprises, Inc.. 52 F.R.D. 335, 347-348 (D.Minn.1971).

      . In Johnson, after noting that plaintiff was a member of his class and that his claim met the requirement of typicality, we said: “the court below, if it doubted appellant’s ability to protect the interests of the class, could have had, and on remand still can have, an evidentiary hearing on the issue.” 417 F.2d at 1124-1125.

      . Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (C.A.5, 1970), quoted with approval in Rowe v. General Motors Corp., 457 F.2d 348, 354 (C.A.5, 1972).

      . Georgia Power Co. v. EEOC, 412 F.2d 462, 468 (C.A.5, 1969).

      . Rogers v. EEOC, 454 F.2d 234, 238 (C.A.5, 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972).

      . Jenkins v. United Gas Corp., 400 F.2d 28, 32 (C.A.5, 1968).

      . Other courts have attempted in various ways to resolve the tensions between the interplaying considerations involved. In Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y. 1968), the court ordered plaintiffs to show at an evidentiary hearing that there was “a substantial possibility that they will prevail on the merits.” This approach lias met with some acceptability, Milberg v. Western Pac. R. R. Co., 51 F.R.D. 280 (S.D.N.Y.), appeal dismissed for lack of appellate jurisdiction, 443 F.2d 1301 (C.A.2, 1971); City of Philadelphia v. Emhart Corp., 50 F.R.D. 232 (E.D.Pa.1970), but somewhat more disenchantment, Miller v. Mackey Int’l, Inc., supra, 452 F.2d at 429 n. 5; Yaffe v. Powers, 454 F.2d 1362, 1366 n. 2 (C.A.1, 1972); 7A Federal Practice & Procedure (Wright & Miller ed.) § 1785, p. 136 n. 76.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. William Arnett BURTON, Appellant.
    No. 73-1160.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Oct. 9, 1973.

      Gary Eldredge, Kansas City, Mo., for appellant.
    Bert C. Hurn, U. S. Atty., and Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON and BRIGHT, Circuit Judges, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

The defendant, William Burton, was convicted by a jury on three counts of an indictment charging violations of 26 U.S.C. §§ 5861(c), (d) and (j) in the United States District Court for the Western District of Missouri, the Honorable Elmo B. Hunter presiding. He was sentenced to a term of seven years on each of the three counts, to be served concurrently.

On this appeal, defendant asserts three grounds of error: (1) illegal search and seizure, (2) insufficiency of the evidence to sustain the conviction, and (3) prejudicial error in the admission of photographs.

I. Search and Seizure.

The defendant made a pre-trial motion for the suppression of two weapons seized by officers of the Kansas City Missouri Police Department at the time of defendant’s arrest on a Missouri gambling charge. It was one of these weapons which formed the basis of the present charges.

After a hearing on the motion, Judge Hunter ruled that the weapons were admissible as the search and seizure were incidental to a valid arrest, and alternatively, that the seizure was justified by the “plain view” exception to the warrant requirement. We agree.

Officers Williams and Kimball of the Kansas City Police Department were dispatched to the scene of defendant’s arrest upon information relating to armed men at a dice game and a possible hold-up. The officers were met outside the building by two men, the operators of the dice game, who described the men believed to be armed and pointed out the location of the game. The officers then entered the building, with Officer Williams in the lead carrying a police department shotgun. When he reached the doorway of an inner room, he observed a dice game in progress and ordered the participants to put their hands on the table. He noticed the defendant tugging at his waistband and then heard a shotgun blast. The defendant fell to the floor and a weapon, the sawed-off shotgun in this case, was observed protruding from the defendant’s torn pant leg where the defendant had apparently shot himself.

Defendant contends that his arrest was without probable cause, thereby invalidating the subsequent seizure of the weapon. Mo.Rev.Stat. § 563.410 V.A.M.S. makes participation in a dice game a misdemeanor. Mo.Rev. Stat. § 84.710 V.A.M.S. gives Kansas City police officers the power to arrest without a warrant, “any person they see violating or whom they have reason to suspect of having violated any law of the state or ordinance of the city.” As Officer Williams observed defendant participating in a dice game, the arrest was valid. The officers, therefore, were justified in conducting a search of his person and the area within his immediate control. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). There is no requirement that the arrest, to support such a search, be under the authority of a warrant. Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

The seizure is also sustainable under the “plain view” exception to the warrant requirement as the weapon was in the plain view of the officer who was in a position where he had a right to be. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). No error was committed in not suppressing the weapon at trial.

II. Sufficiency of the Evidence.

The defendant challenges, the sufficiency of the evidence to support his conviction. His challenge is directed at the evidence supporting his conviction on the count alleging transportation in interstate commerce. The defendant received concurrent sentences on each of the three counts, and if the conviction underlying any of the concurrent sentences is valid, reversal is not required. Kilcrease v. United States, 457 F.2d 1328, 1331 (8th Cir. 1972); United States v. Bessesen, 433 F.2d 861, 867 (8th Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1254, 28 L.Ed.2d 545 (1971).

Mindful that, “we must, as an appellate court, view the evidence in the light most favorable to sustaining the jury verdict, and we accept as established all reasonable inferences that tend to support the jury’s determination,” United States v. Briddle, 430 F.2d 1335, 1337-1338 (8th Cir. 1970), we find there is ample evidence to support the jury’s verdict on the charge of possessing an unregistered firearm. In brief, there was testimony from the operator of the dice game that he observed defendant with the shotgun tucked into his pants, and testimony from Officer Williams that the shotgun was right at defendant’s feet immediately after the shot was heard. The government introduced a certification from the custodian of records of the National Firearm Registration Board that the shotgun in question was not registered to the defendant. There was sufficient evidence to establish, beyond a reasonable doubt, the guilt of the defendant upon the count alleging possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d).

III. Introduction of Photographs.

The defendant claims that photographs of the scene introduced at trial showing “blood and gore all over the room” had the effect of unduly inciting prejudice against him. The record shows that the trial court felt the photographs were helpful to the jury in determining the positions of the parties in the room where the guns were found, and the view afforded the police officer. The pictures were in black and white and the trial judge did not believe the jury would be shocked by them. As we stated in Johnson v. United States, 362 F.2d 43, 46 (8th Cir. 1966):

“The admissibility of photographs is left to the sound discretion of the trial court and will not be overturned except for a clear abuse of discretion.”

We find no abuse of discretion in allowing introduction of the photographs.

Judgment of conviction affirmed.

      . 26 U.S.C. § 5861 provides :
      “It shall be unlawful for any person—
      * * *
      “(c) to receive or possess a firearm made in violation of the provisions of this chapter ; or
      “(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Board; or
      S)S :¡¡ :¡:
      “(j) to transport, deliver, or receive any firearm in interstate commerce which has-not been registered as required by this chapter. . . .”

      . Section 563.410 provides in pertinent part: “If any person shall play at any game wliatsoever for money, property or gain, with cards, dice, or any other device which may be adapted to or used in playing any game of chance . . . every such person shall be deemed guilty of a misdemeanor, . . .”