author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., and Project on Clean Air, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
    Nos. 72-1219, 72-1224.
    United States Court of Appeals, First Circuit.
    Submitted July 16, 1973.
    Decided Oct. 1, 1973.

      Richard E. Ayres, New York City, and Thomas B. Arnold, Boston, Mass., for petitioners.
    Thomas C. Lee, Atty., Dept, of Justice, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, and Martin Green, Attys., Dept, of Justice, were on brief, for respondent in case 72-1219.
    John P. Hills, Atty., Dept, of Justice, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, and Martin Green, Attys. Dept, of Justice, were on brief, for respondent in case 72-1224.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Petitioners in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d 875 (1st Cir. 1973), now request this court to award them attorneys’ fees as well as costs against the Environmental Protection Agency [EPA] for their efforts in obtaining orders requiring EPA to comply with certain of its obligations under the Clean Air Amendments of 1970, 42 U.S.C. § 1857c-5 et seq. We hold that petitioners are entitled to recover reasonable attorneys’ fees and costs.

Traditionally, a prevailing party has received costs but not attorneys’ fees. Compare Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif.L.Rev. 792 (1966), McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619 (1931), and Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Studies 399, 428, 437 (1973) with Goodhart, Costs, 38 Yale L.J. 849 (1929) and Note, Distribution of Legal Expenses Among Litigants, 49 Yale L.J. 699 (1940). Moreover, sovereign immunity would prevent a court, without congressional consent, from awarding even costs against the federal government or one of its agencies. Only in 1966 did Congress, by statute of general application, waive immunity from conventional costs; but the broad waiver still does not extend to attorneys’ fees. 28 U.S.C. § 2412, infra; United States v. Chemical Foundation, Inc., 272 U.S. 1, 47 S.Ct. 1, 71 L.Ed. 131 (1926); Cassata v. Federal Savings & Loan Insurance Corp., 445 F.2d 122 (7th Cir. 1971).

An early judicially-created exception to the no-fees rule was that attorneys’ fees might be taxed to a private party who had sued or defended in bad faith. The award was to punish frivolous or ill-motivated litigation. See, e. g„ Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Comment, The Allocation of Attorney’s Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316, 317-23 (1971). Another exception was made in equity proceedings where a plaintiff recovered, through the litigation, a fund in which others were entitled to share. Costs “as between solicitor and client” were allowed to be paid from the fund not to punish the loser, but to prevent unfair advantage to non-litigant beneficiaries. See, e. g., Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1882). Cf. Philadelphia v. Chas. Pfizer & Co., 345 F.Supp. 454, 482-483 (S.D.N.Y.1972).

Building upon the “fund” rationale, courts allowed attorneys’ fees in other situations where to do so resulted in a more equitable allocation of the costs of suit among all who benefitted. See, e. g., Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (plaintiff’s victory, in consequence of stare decisis, established the claims of fourteen other trusts pertaining to the same bonds; fees were assessed against the bonds.) Cf. Horn-stein, Legal Therapeutics: The “Salvage” Factor in Counsel Fee Awards, 69 Harv.L.Rev. 658 (1956). Recently the notion of spreading the litigation costs equitably among all the beneficiaries has been coupled with that of encouraging suits which promote the public interest. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972). When private litigation vindicates a significant public policy and, at the same time, creates a widespread benefit, policy today favors awarding attorneys’ fees against a party who exists to serve or represent the interests of all those benefitted. Thus in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), a corporation was made to shoulder the cost of litigation that benefitted all shareholders and simultaneously supported the policy of the securities laws. In Hall v. Cole, 412 U. S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), a union was made to pay the attorneys’ fee of disappointed union office seekers who had sued the union; the plaintiffs’ victory aided the entire membership by furthering union democracy. But cf. Bradley v. School Board, 472 F.2d 318 (4th Cir. 1972), cert, granted, 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973). While the above cases do not go so far as to exact attorneys’ fees from an agency of the federal government, courts have often awarded fees against state agencies or officials. Ojeda v. Hackney, 452 F.2d 947 (5th Cir. 1972); Taylor v. Perini, 359 F.Supp. 1185 (N.D. Ohio 1973) (civil rights); La Raza Unida v. Volpe, 57 F.R.D. 94, 101-102 n. 11 (N.D.Cal.1972) (environmental protection) ; Sims v. Amos, 340 F.Supp. 691, 694 n. 8 (M.D.Ala.1972) (reapportionment) ; NAACP v. Allen, 340 F.Supp. 703, 708, 710 n. 10 (M.D.Ala.1972) (desegregation). See also Note, Allowance of Attorney Fees in Civil Rights Litigation Where the Action is not Based on a Statute Providing for an Award of Attorney Fees, 41 Cinn.L.Rev. 405 (1972).

In the present case (putting aside for the moment the issue of sovereign immunity) the principles mentioned favor an award of attorneys’ fees against the EPA. Petitioners have usefully championed the policy of the Clean Air Amendments of 1970, 42 U.S.C. § 1857c-5 et seq., to “clear the air.” They have sought to compel strict compliance by the EPA with legislation the purpose of which is to “speed up, expand, and intensify the war against pollution in the United States with a view to assuring that the air we breathe throughout the nation is wholesome once again.” H.R. Rep. No. 91-1146, 91st Cong., 2d Sess. 2 (1970); 1970 U.S.Code Cong. & Admin. News 5356. Congress has, indeed, shown a desire to pursue its goal with the assistance of such private litigants. In the House Report just quoted the “regrettably slow” progress in controlling air pollution is blamed on a scarcity of skilled personnel available to enforce control measures and on a lack of aggressiveness by EPA’s predecessor agency in enforcing the law. The public suit seems particularly instrumental to the statutory scheme when against the EPA itself, for only the public — certainly not the polluter — has the incentive to complain if the EPA falls short in one or another respect; yet the lack of measurable interest on the part of any individual member of the public, and the difficulties inherent in complex litigation in a rapidly developing field of law, make the economics of citizen suits a serious problem.

In any event, petitioners have activated traditional adversary machinery for bringing issues before a court. As a result, policies of the EPA have been corrected and others, upheld, have been removed from the arena of dispute. Presumptively the public has benefitted-— not only in Rhode Island and Massachusetts but nationally, as neither air pollution nor the movement of citizenry respect state boundaries, and some of the legal principles at issue have national as well as regional import. Petitioners have thus helped to enforce, refine and clarify the law. They can be said to have assisted the EPA in achieving its statutory goals.

Under the circumstances it seems fair and sensible that the EPA should be taxed for petitioners’ reasonable costs and attorneys’ fees. The EPA has been assigned by Congress the task of supervising pollution control. It handles the public funds appropriated for that purpose. To allocate petitioners’ reasonable costs and attorneys’ fees to it is to spread them ultimately among the taxpaying public, which receives the benefits of this litigation. The EPA stands here in the same relation to the citizen as did the corporation in Mills to its shareholders and the union in Hall to its members. See Comment, The Allocation of Attorney’s Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316, 329-36 (1971).

Sovereign immunity, however, poses a problem that was not present in Mills or Hall. Prior to 1966 the controlling general statute, 28 U.S.C. § 2412, provided flatly that “[t]he United States shall be liable for fees and costs only when such liability is expressly provided for by Act of Congress.” 62 Stat. 973 (1948). This was consistent with the Supreme Court’s earlier formulation in United States v. Chemical Foundation, Inc., supra, 272 U.S. at 20, 47 S.Ct. at 8 that “[t]he general rule is that, in the absence of a statute directly authorizing it, courts will not give judgment against the United States for costs or expenses.” •The Court there held that officials of the United States could not, by the act of bringing suit for the . government, waive its sovereign immunity against the imposition of costs and fees. Only Congress could do so.

Congress liberalized § 2412 in 1966. It now provides:

“Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against any agency ... of the United States ... in any court having jurisdiction of such action

The intent, as stated in the House of Representatives committee report, H.R. Rep. No. 89-1535, 89th Cong., 2d Sess. (1966), was to provide for fair and uniform treatment as between the government and a private litigant: as matters had stood, the United States, if it prevailed, could collect costs, but the citizen, if he prevailed, could not. The House committee report concluded:

“Apparently the present inequality is related to a governmental advantage derived from the principle favoring immunity of the sovereign from suit. Under modern conditions, there is no reason for this advantage when the law provides for suit against the Government.” 1966 U.S.Code Cong. & Admin. News 2528.

Nonetheless, the blanket waiver did not extend to attorneys’ fees. The Seventh Circuit has since held that when Congress is otherwise silent courts still may not award attorneys’ fees against the government. Cassata v. Federal Savings & Loan Insurance Corp., supra. The history of § 2412 reflects, it is true, a strong movement by Congress toward placing the federal government and civil litigants on a completely equal footing. Yet we may not ignore its plain wording. To award attorneys’ fees against a governmental agency, we must first find that Congress has given specific statutory sanction. Here, we find such sanction in the language of the Clean Air Amendments themselves.

The Amendments § 304(d), 42 U.S.C. § 1857h-2(d), expressly authorize the award of attorneys’ fees in any suit brought pursuant to § 304(a), 42 U.S.C. § 1857h-2(a). Section 304(a) allows any citizen to commence suit, without regard to the amount in controversy, “against the Administrator [of the EPA] where there is alleged a failure of the Administrator to perform any act or duty under [the Amendments] which is not discretionary with the Administrator.” The provision would aptly cover this case, the essence of which is the claim that the Administrator failed to perform his duty with respect to the review and approval of state implementation plans.

The difficulty is that § 304 on its face deals only with litigation in the District Court. This case was brought pursuant to § 307, 42 U.S.C. § 1857h-5(b)(1), providing that “[a] petition for review of the Administrator’s action in approving or promulgating any implementation plan . . . may be filed only in the United States Court of Appeals for the appropriate circuit.” If petitions under § 307 are not actions brought pursuant to § 304(a), then the attorneys’ fee authorization in § 304(d) would not be available as an exception to 28 U.S.C. § 2412. On the other hand, if the enabling provisions of § 304(a) also apply to actions under § 307, attorneys’ fees are specifically allowed. We must decide between these alternatives.

While the statutory language is confusing, both common sense and the legislative history lead us to conclude that a petition for review is to be regarded as an action pursuant to § 304(a). Section 307 designates the forum, Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert, denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973) ; it goes no further. The authorization for, and conditions of, suit are contained in § 304(a). The legislative history reveals that § 307 does no more than direct that some proceedings must be brought in the circuit courts.

Section 307 originated in the Senate; the House version required all suits to be brought in the district court. 1970 U.S.Code Cong. . & Admin.News 5389. The Senate committee wanted to consolidate review of implementation plans in the circuits because many plans were regional or even national in scope, and numerous suits in many districts might be avoided by requiring a single suit in a central forum. S.Rep. No. 91-1196, 91st Cong., 2d Sess. 41 (1970). The committee also believed that requiring implementation plans to be challenged, if at all, only in the circuit courts would “maintain the integrity of the time sequences provided throughout the Act.” Id. Since statutory goals were to be achieved within three years of the approval of the implementation plan, it was important to conserve time by eliminating the otherwise normal first step in the judicial process. Challenges to other acts of the Administrator, and enforcement suits brought against polluters, were left to the district courts because delay and disparate initial decisions would not present serious obstacles.

Neither reason for directing some cases to the circuit courts indicates a congressional desire to make the allowability of attorneys’ fees depend on the forum of the suit. Indeed, some of the changes the Senate bill underwent in Conference Committee reflect the opposite desire. The original provision had specified that “[a]ny interested person may file a petition . . . for review” of the implementation plans in the circuit courts. While “interested person” is equivocal as to who has standing to sue, the Senate committee report, S. Rep. No. 91-1196, 91st Cong., 2d Sess. 41 (1970), noted that the bill would protect the right of “those who seek to protect the public interest” to bring an action challenging an implementation plan. This effectively would have repeated the universal standing provision of § 304(a). When the Conference Committee reported out the bill, the Senate’s standing provision was missing. The Conference Committee apparently contemplated that the standing provisions of § 304(a) would be applicable to § 307 suits: the report states that § 307 “specif [ies] forums for judicial review of certain actions . . . provided for under the Act and the proposed amendments.” [Emphasis added] 1970 U.S. Code Cong. & Admin.News 5389. Other sections “provided for” the review; § 307 merely specified a forum. The section providing for review of actions of the Administrator is § 304(a), and since § 304(a) specified that standing was universal, there was no need to repeat the allowance in § 307. Similarly, § 304 provided for attorneys’ fees where appropriate, and there was no need to repeat the provision in § 307.

This conclusion as to the scope of § 304(a) is also supported by the legislative history of the inclusion in § 304(a) of a provision for citizen suits without any requirement that the plaintiff be a person aggrieved. This provision, like § 307, originated in the Senate. According to the Senate committee report, citizen suits would be an invaluable aid in the enforcement of pollution control standards once they had been promulgated. The committee realized that federal or state enforcement resources might be insufficient, and that federal agencies themselves might sometimes be polluters; the citizen suit provision created “private attorneys general” to aid in enforcement. But while most of the attention of the committee was directed to these enforcement suits, the committee was careful to note that the citizen suit concept applied as well to other actions taken by the EPA.

“The Committee bill would provide in the citizen suit provision that actions will lie against the [Administrator] for failure to exercise his duties under the Act, including his enforcement duties. The Committee expects that many citizen suits would be of this nature . . .” S.Rep. No. 91-1196, 91st Cong., 2d Sess. 38-39 (1970).

The committee thus apparently contemplated that suits such as the present one would fall within the citizen suit provision, and consequently qualify for appropriate awards of attorneys’ fees under § 304. When the bill reached the Senate floor, Senator Muskie, the bill’s floor manager, answered criticism of the citizen suit provision by inserting in the record a memorandum stating that “[t]he concept in the bill is that administrative failure should not frustrate public policy and that citizens should have the right to seek enforcement where administrative agencies fail.” 116 Cong.Rec. 33102 (1970). The policy of the Amendments is no less frustrated if the EPA approves an inadequate plan than if it fails to enforce an adequate plan. The Senate so understood when it included in the citizen suit section the provision authorizing citizen suits against the Administrator for failure to perform any act required by the Amendments.

The potential award of attorneys’ fees was a logical complement to the right to bring citizen suits. The Senate committee foresaw that such awards would fulfill two important tasks. First, the potential for an award would encourage citizens to bring meritorious actions. Without the possibility of fees many meritorious actions would never be brought, since the plaintiff would face a certainty of attorneys’ fees far higher than- any personal gain he would reap if victorious. With attorneys’ fees, it would financially be possible for such actions to be brought. See Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Studies 399, 428 437 (1973). “[I]n bringing legitimate actions under this section citizens [are] performing a public service and in such instances the courts should award costs of litigation to such party.” S.Rep. No. 91-1196, 91st Cong., 2d Sess. 38 (1970).

Second, the committee noted that many Senators had expressed concern that some would abuse the citizen suit provision by bringing frivolous or harassing actions. The attorneys’ fee provision was conceived as a primary deterrent to such actions, for the court could award to' defendants the full costs of their defense in order to deter meritless suits.

The same considerations apply to actions brought in the circuit courts to challenge the EPA’s approval of state implementation plans. The award of fees encourages suits that help the EPA to perform its difficult task. At the same time, “the court could award costs of litigation to defendants where the litigation was obviously frivolous or harassing.” Id. The court could also discourage such litigation merely by forcing the plaintiff to bear his own attorneys’ fees.

Taking together the wording of § 304, the legislative history of § 307, and the legislative history of the citizen suit provision, we think that Congress specifically intended that proceedings brought pursuant to '§ 307, 42 U.S.C. § 1857h-5(b) (1), were to be entitled to the benefits and deterrents expressed in § 304(d) via § 304(a). The requirement of 28 U.S.C. § 2412 that attorneys’ fees be awarded only when specifically authorized has been satisfied. We conclude that we are empowered, in our discretion, to award such fees, as well as costs, against the EPA. We are also persuaded that reasonable costs and fees should, in this case, be awarded to petitioners.

We are not impressed by the government’s argument that because some issues were decided adversely to petitioners each party should bear its own costs. The authorizing language of § 304(d) permits an award “to any party, whenever the court determines such award is appropriate.” This suggests greater latitude even than is found in 28 U.S.C. § 2412, which authorizes awards to “the prevailing party”. We are at liberty to consider not merely “who won” but what benefits were conferred. The purpose of an award of costs and fees is not mainly punitive. It is to allocate the costs of litigation equitably, to encourage the achievement of statutory goals. When the government is attempting to carry out a program of such vast and unehartered dimensions, there are roles for both the official agency and a private watchdog. The legislation is itself novel and complex. Given the implementation dates, its early interpretation is desirable. It is our impression, overall, that petitioners, in their watchdog foie, have performed a service.

Were we to believe that the litigation were wholly or in substantial part frivolous, we would not, of course, award costs of any description to petitioners. In such cases, indeed, we reserve the right to award costs and fees in favor of the EPA. But the challenges here, even those not sustained, were mainly constructive and reasonable. And petitioners were successful in several major respects ; they should not be penalized for having also advanced some points of lesser weight.

As the government has not addressed in detail the question of the reasonableness of petitioners’ requested sum, we now ask the parties to submit memoran-da on that question. We will scrutinize carefully the requested costs and fees. Petitioners are not a public agency and are legally responsible to no one but themselves; we must satisfy ourselves that the taxpayers’ money will not be used to support needless or excessive legal items. We must also recognize that petitioners, as surrogate attorneys for the interests of the public and the EPA, have volunteered and “imposed” their services on “clients” that never contracted for them. As attorneys for involuntary clients, their fees may properly be less than those they could have received by entering the marketplace and selling their services to the private client who would make the highest bid for them.

So ordered.

      . Some courts have drawn a sharp distinction between “benefit” cases in which the suit serves the interests of a limited group, and “private attorney general” cases in which the whole public is the beneficiary either because it receives a boon directly or because some “strong public policy” is vindicated. See, e. g., La Raza Unida v. Volpe, 57 F.R. D. 94 (N.D.Cal.1972) and cases cited therein. Cf. Hall v. Cole, 412 U.S. 1, 5 n.7, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). However, after Sail and Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L. Ed.2d 593 (1970), the concept of “benefit” includes any substantial improvement, financial or otherwise, provided to the beneficiary group. Whether that group is limited or includes the whole public should therefore ordinarily not affect the form of analysis. The number of beneficiaries would be important only when the court needed to determine whether the benefit was sufficiently large to justify an award of fees, or when the fees would be calculated to relate to the quantum of benefit.

      . Clean Air Amendments of 1970 § 304, 42 U.S.C. § 1857h-2. The Amendments contain numerous other provisions for public participation, e. g., § 1857c-5(a)(2)(F) (release of emission data to the public) ; §§ 1857c-5(a)(1), (a)(2), and (f)(2)(A) (public hearings on original implementation plan and any revisions or postponements).

      . The legislative history provides no clues concerning Congress’ reasons for broadly excluding awards of attorneys’ fees. Such a result might seem to be inconsistent with the express desire to eliminate the “unfair” advantage possessed by the United States by virtue of its sovereign immunity. At the time of the enactment, however, the award of fees was still rare in American law and was often disfavored by the courts. See, e. g., Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). The omission may simply have been a reflection of the prevailing American rule, preserving to Congress the option of reversing the rule when justice required.

      . “The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. . . ."

      . The government contends that § 304(d), even if applicable to this case, does not authorize the award of fees against the government. This reading of the statute is in sharp conflict with its plain words, which authorize the award against “any party” and which, in § 304(a), specifically authorize suits with the United States as a party.

      . A third alternative is that, since § 304 mentions attorneys’ fees and § 307 makes no mention of them within the section, the court must infer that Congress deliberately chose to exclude attorneys’ fees from the remedies available under §' 307. That same contention was made to, and expressly rejected by, the Supreme Court in Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed. 2d 702 (1973) and Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Courts are to draw such a negative inference only when the legislative history is clear or when Congress has prescribed such “intricate remedies”, Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), as logically to exclude the possibility of nondescribed remedies. Section 307 makes no mention of remedies.

      . The government argues that, even though otherwise eligible, public interest organizations “formed for the purpose of litigating against the government” and endowed with “tax exempt status” should be denied attorneys’ fees. In the alternative the government argues that fees of petitioners’ staff counsel should be denied. We can find no support for such contentions in the legislative history or the words of the statute. Quite the contrary, Congress recognized that public interest organizations would conduct a great deal of litigation under the Amendments. And the Amendments themselves provide for the award of fees to “any party.” 42 U.S.C. § 1857h-2(d). If Congress desired to use the award of fees to encourage meritorious litigation and discourage frivolous suit, the identity of the party, and the source of its counsel, would be of little moment. See generally Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 538-539 n.14 (5th Cir. 1970) ; Woolfolk v. Brown, 358 F. Supp. 524, 536 (E.D.Va.1973) ; La Raza Unida v. Volpe, 57 F.R.D. 94, 98 n.6 (N.D.Cal. 1972).


source: Caselaw Access Project

author: SPRECHER, Circuit Judge.

license: Public Domain

text:
    MOTOROLA, INC., Petitioner-Appellee, v. Elmer W. McLAIN, Regional Director, Equal Employment Opportunity Commission of the United States, Defendant-Appellant.
    Nos. 72-1748, 72-1749.
    United States Court of Appeals, Seventh Circuit.
    Argued May 30, 1973.
    Decided Sept. 10,1973.
    Rehearing Denied Oct. 2, 1973.

      Julia P. Cooper, Charles Reischel, Equal Employment Opportunity Commission, Washington, D. C., for defendant-appellant.
    Robert V. Nystrom, Chicago, 111., for petitioner-appellee.
    Before FAIRCHILD and SPRECHER, Circuit Judges, and REYNOLDS, District Judge.

       District Judge John W. Reynolds of the Eastern District of Wisconsin is sitting by designation.

   SPRECHER, Circuit Judge.

These two appeals require us to delineate the scope of the Equal Employment Opportunity Commission’s investigatory powers under Title VII of the Civil Rights Act of 1964.

I

In No. 72-1748 (the Taggart case), Lillian Taggart filed a charge on February 2, 1970, with the Equal Employment Opportunity Commission (EEOC) pursuant to Section 706(a) of Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e — 5(a) (1971)), alleging that petitioner, Motorola, Inc., had discriminated against her “because of [her] race (Negro).”

Ms. Taggart’s affidavit alleged that she commenced employment at petitioner’s Communications Plant, 4545 West Augusta Boulevard, Chicago, as an assembler on April 27, 1964, and worked as productivity clerk from 1966 to 1967 and as an inspector, tester, analyzer and repairer from 1967 to September 24, 1970, the date the affidavit was executed; that in April, 1969, she was told by Assistant Foreman, Chuck Mortell, to prepare herself to fill a supervisory vacancy by learning more about testing equipment and analyzing procedure inasmuch as her supervisor, Leslie Chapman, was transferring to another department and Mortell expected that she would fill that vacancy; that about 18 days later Chapman informed her that his vacancy was to be filled by a white, male, newly-hired employee, Tom Donley; that when she complained to Mortell, he said that Donley wasn’t filling the vacancy but “was merely learning the operation” and if he did not work out, she would replace him; that she complained to Dick Brennan in the personnel department, who said he would look into the matter and about one month later told her Donley was a technician, not a supervisor; that in October, 1969, Mortell told her that Donley was her supervisor; that she was then in the highest classification in her department section and the next step would be group leader, key operator or supervisor; that Donley was frequently absent and was discharged in January, 1970, for poor attendance; that Jim Rich, a supervisor from another department, took over until March 23, 1970, when he was replaced by Stanley Swa-rek, who was transferred from another department where he had been supervisor ; that her complaints to the petitioner went unanswered; that no equal employment posters were on the petitioner’s bulletin boards; that in 1969 there were 10 black employees in her department and at present there were two; and that the petitioner suggested that she take a technician’s test, but she protested that no white supervisors were required to take this test.

In No. 72-1749 (the Shannon ease), Christine Shannon filed a charge on February 4, 1970, with EEOC, alleging in connection with her employment at petitioner’s Augusta Boulevard plant, the following:

“I was attacked by the Company Guard (white) while entering the plant to work. After a witness came forward and told what she saw, the Company asked me to forget it and told me that the guard would be stationed somewhere where I would not see him. I was told that if anything else happens, I will be transferred from my department, after being there for one year. I do not want to transfer departments, but I am afraid that if I don’t accept, I may be fired. I work in a department consisting of approximately 25 whites where I am the only black, and I do the hardest job in the department. Everyone in there has at least 10 years of experience. I have 3 years with the Company, and I have the highest production rate in the department. Also, I believe the company maintains segregated seniority lines.”

In accordance with Section 706(b) of Title VII (42 U.S.C. 2000e — 5(b)), requiring charging parties to exhaust their remedies before state fair employment practices commissions, EEOC deferred the two charges until receiving notification on February 26, 1970, that Lillian Taggart’s charge, and on March 30, 1970, that Christine Shannon’s charge had been dismissed by the Illinois Fair Employment Practices Commission. The charges were considered filed with EEOC upon termination of state proceedings and upon receipt by EEOC of notification thereof pursuant to Section 1601.12(b) (IV) of EEOC Procedural Regulations (29 C.F.R. § 1601.12b(4) (1973)).

On September 29, 1970, an investigator from EEOC’s Chicago office attempted to serve both charges on the petitioner, whose representatives on advice of counsel refused to receive service and refused to produce requested documents and information.

On May 5, 1971, EEOC served petitioner with a Demand for Access to Evidence in both cases. On May 17, petitioner filed two separate actions in the district court pursuant to Section 710(c) of Title VII (42 U.S.C. § 2000e — 9(c)) praying for modification of the demand as to certain of its requirements.

On June 14, 1972, the district court, upon appeal from a magistrate who heard arguments by counsel for petitioner and EEOC, ordered in the Taggart case that the petitioner need not comply with the Demand and neither produce nor grant access to:

1. The most recent E.E.O.-l form regarding the makeup of the work force in the plant located at 9401 West Grand Avenue, Franklin Park, Illinois.

2. All records and personnel relating to Charge No. TCHO 0794 [the Taggart charge].

3. The complete personnel records maintained by Motorola, Inc. for the following:

(A) Thomas Donnelly;
(B) Les Chapman;
(C) James Rich; and
(D) Stanley Swarek (phonetic spelling),

if such persons are employed by Motorola, Inc.

4. Home address and telephone number of James Mortell if such person is employed by Motorola, Inc.

5. Home address and telephone number of Richard Brennan, if such person is employed by Motorola, Inc.

6. A tour of the plant facilities located at 4545 West Augusta Boulevard, Chicago, Illinois.

In the Shannon case, the district court ordered on June 14, 1972, that the petitioner need not comply with the Demand and neither produce nor grant access to the following:

■ List of all incumbent employees hourly and salaried, designating race, sex, present labor grade, present job classification, present department, job code (or other applicable code), and all seniority dates for whatever purpose used by the company. If seniority is by job classification or department, such list shall be prepared by seniority date. If no such seniority date is maintained such list shall be furnished alphabetically by name of employee.

EEOC has appealed both orders.

II

Section 709(a) of Title VII (42 U.S.C. § 2000e — 8(a)) provides that “the Commission or its designated representative shall at all reasonable times have access to . ■ . . and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices . and is relevant to the charge under investigation.” At the time the charges were filed, Section 710(a) provided that “the Commission shall have authority to examine witnesses under oath and to require the production of documentary evidence relevant or material to the charge under investigation.” 42 U.S.C. § 2000e — 9(a) (1971) (emphasis added).

In General Employment Enterprises, Inc. v. Equal Employment Opportunity Commission, 440 F.2d 783, 784 (7th Cir. 1971), we enforced the EEOC’s Demand for Access to Evidence under Sections 709(a) and 710(a) as “consistent with the broad remedial purposes of the Act which could only be thwarted by sustaining technical defenses of alleged violators.”

Most of the courts which have considered the scope of the investigatory powers of EEOC have agreed that they are broad. Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, 418 F.2d 355, 358 (6th Cir. 1969) (“Title VII . . . should not be construed narrowly . . .”); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 425 (8th Cir. 1970) (“Title VII of the Civil Rights Act of 1964 is to be accorded a liberal construction in order to carry out the purpose of Congress to eliminate the inconvenience, unfairness and humiliation of racial discrimination”). One district court which sought to find that “Congress intended to deny the Commission the broad investigatory powers of other federal agencies .” was expressly reversed by the Court of Appeals. Graniteville Co. v. Equal Employment Opportunity Commission, 316 F.Supp. 1177, 1185 (D.S. Car.1969), rev’d, 438 F.2d 32, 39 (4th Cir. 1971).

The only voice arguing for a presumed narrower grant of authority is Georgia Power Co. v. Equal Employment Opportunity Commission, 412 F.2d 462, 467-468 (5th Cir. 1969) and that view was based primarily on Senator Dirk-sen’s question during debate in 1964: “What protection is afforded to an employer from fishing expeditions by investigators, in their zeal to enforce Title VII?” 2 Statutory History of the United States: Civil Rights 1176 (B. Schwartz ed. 1970). The “fishing expedition” language has been repeated occasionally (Parliament House Motor Hotel v. Equal Employment Opportunity Commission, 444 F.2d 1335, 1339 (5th Cir. 1971)) and has been echoed by the petitioner in the present appeals. Brief for Appellee at 7, No. 72-1748.

When the Supreme Court was considering Federal Rule of Civil Procedure 26(b)(1), which reads in part that discovery may be obtained “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” it said in Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947):

“We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case.” '

In finding that Congress intended a broad interpretation of Sections 709(a) and 710(a), Judge Sobeloff in Granite-ville Co. v. Equal Employment Opportunity Commission, 438 F.2d at 39, said:

“Our reading of legislative history . suggests . . . that the investigatory powers of the EEOC were intended to equal in scope those granted the National Labor Relations Board under the Taft-Hartley Act, 29 U.S.C. §§ 151 et seq., 161.”

In National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759, 768, 89 S.Ct. 1426, 1431, 22 L.Ed.2d 709 (1969), the Supreme Court, in upholding the power of the Board to require an employer to furnish a list of names and addresses of employees eligible to vote in a representation election as within the scope of Section 11 of the National Labor Relations Act (29 U.S.C. § 161), held that the investigatory power extended to “books and records and other papers which will be of assistance to the Board in conducting a particular investigation.”

Judge Sobeloff proved to be prophetic when he equated Sections 709(a) and 710(a) with 29 U.S.C. § 161 since Congress, in passing the Equal Employment Opportunity Act of 1972 which became effective on March 24, 1972, amended Section 710 to read as follows:

“For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 161 of Title 29 shall apply.” 42 U.S.C.A. § 2000e — 9 (Supp.Pamphlet, 1972).

Although Congress was not entirely clear as to whether amended Section 710 was to apply to prior filed but pending charges,2 as those here, this is not significant inasmuch as Congress was clear that the change in that section was “comparable” to the section prior to amendment (U.S. Code Cong. & Admin. News 2164 (1972)) and we agree with Judge Sobeloff that the original language was “equal in scope” to 29 U.S.C. § 161.

If there was any doubt as to the Congressional intention that the original language of Title VII be construed and applied broadly, it was dissipated by the unequivocal intention expressed in the passing of the 1972 amendments to that title.

House Report No. 92-238 (92d Cong., 2d Sess. 1972; reprinted in U.S.Code Cong. & Admin.News 2141, 2143-44 (1972)) noted the following:

“The time has come to bring an end to job discrimination once and for all, and to insure every citizen the opportunity for the decent self-respect that accompanies a job commensurate with one’s abilities. The hopeful prospects that Title VII offered millions of Americans in 1964 must be revived.
-* * * * * ->:•
“During the preparation and presentation of Title VII of the Civil Rights Act of 1964, employment discrimination tended to be viewed as a series of isolated and distinguishable events, due, for the most part, to ill-will on the part of some identifiable individual or organization.
•X- * * -X- * -X*
“Employment discrimination, as we know today, is a far more complex and pervasive phenomenon. Experts familiar with the subject generally describe the problem in terms of ‘systems’ and ‘effects’ rather than simply intentional wrongs. The literature on the subject is replete with discussions of the mechanics of seniority and lines of progression, perpetuation of the present effects of earlier discriminatory practices through various institutional devices, and testing and validation requirements.
-X- *X- * *X* -X-
“It is increasingly obvious that the entire area of employment discrimination is one whose resolution requires not only expert assistance, but also the technical perception that a problem exists in the first place, and that the system complained of is unlawful.”

The Supreme Court has also shed additional light on Title VII in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973), where Mr. Justice Powell said:

“The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. .
“There are societal as well as personal interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.”

The Court held that a complainant establishes a prima facie case of racial discrimination by showing (1) that he belongs to a racial minority, (2) that he applied and was qualified for a job for which the employer was seeking applicants, (3) that despite his qualifications, he was rejected, and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the complainant’s rejection. Obviously this will always be forthcoming, if on no other basis, for the non-racial reason that complainant lacked the necessary qualifications for the position. This results in a shift of the burden back to the complainant, who must be afforded a fair opportunity to show that [the employer’s] stated reason for . . . [the employee’s] rejection was in fact pretext. 411 U.S. at 804, 93 S.Ct. at 1825. Mr. Justice Powell then detailed the manner in which the complainant must be given an opportunity to establish pretextuality ' (411 U.S. at 804, 93 S.Ct. 1825-1826) :

“Other evidence that may be relevant to any showing of pretextuality includes facts as to the petitioner’s treatment of respondent during his prior term of employment, petitioner’s reaction, if any, to respondent’s legitimate civil rights activities, and petitioner’s general policy and practice with respect to minority employment. On the latter point, statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. ... In short, on the retrial respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.”

Ill

In the Taggart case (No. 72-1748), the complainant established a prima facie case of racial discrimination by her charge and affidavit. The petitioner has not admitted racial discrimination and it can be presumed that it will proffer a non-racial reason for failing to promote complainant. Inasmuch as evidence is admissible to establish pretextuality, the investigatory powers of EEOC to determine whether reasonable cause exists to believe a violation of Title VII has occurred, obviously extend at least as far. As Chief Judge Swy-gert held in construing Section 11 of the National Labor Relations Act (29 U.S.C. § 161) in N.L.R.B. v. Rohlen, 385 F.2d 52, 57 (7th Cir. 1967):

“Thus, if the material subpoenaed touches a matter under investigation, it is within the scope of section 11(2) even though the material may not be considered ‘evidence’ as the term is employed in the courtroom.”

Accord, N.L.R.B. v. Wyman-Gordon Co., 394 U.S. at 768-769, 89 S.Ct. at 1430-1431.

The pretextuality issue encompasses the employer’s “general employment policy and practice,” a search for “a general pattern of discrimination against blacks,” and a determination of whether “valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.” Congress has alerted EEOC to look for “systems” and “effects” of discrimination.

In the Shannon case (No. 72-1749), the complainant’s charge also sets forth a prima facie ease of racial discrimination, which will require investigation of the pretextuality issue. The complainant further charges that she believes “the company maintains segregated seniority lines.” The Taggart charge referred to a test requirement that was not applied to white employees. Both complainants filed their charges in early 1970, long before Congress warned that “[t]he literature on the subject is replete with discussions of the mechanics of seniority and lines of progression, perpetuation of the present effects of earlier discriminatory practices through various institutional devices, and testing and validation requirements.”

In view of the board investigatory powers intended to be given to EEOC, all of the items to which the district court denied it access were properly sought under Section 709(a) and 710(a) of Title VII.

In the Taggart matter, all records relating to that charge, the personnel records for the employees specifically named in that charge, and the address and telephone numbers of two other employees expressly named in the charge, are so clearly required to be made available that the employer’s refusal was not only “technical” but close to frivolous. The other two items sought — the EEOC form regarding the make-up of the work force in petitioner’s plant in Franklin Park (a Chicago suburb) and a tour of the Chicago plant — both fall well within EEOC’s responsibilities and powers. A plant tour may be extremely significant and relevant.

The only item sought in the Shannon matter — a list of all employees with information relating to seniority — is also well within'EEOC’s powers.

There is nothing unique about a requirement to compile and furnish lists, names, addresses and telephone numbers. N.L.R.B. v. Wyman-Gordon Co., 394 U.S. at 767-775, 89 S.Ct. 1426, 22 L.Ed.2d 709; Local No. 104 v. Equal Employment Opportunity Commission, 439 F.2d 237, 243 (9th Cir. 1971).

A single charge may “launch a full scale inquiry.” Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968) ; Parham v. Southwestern Bell Telephone Co., 433 F.2d at 425; Cameron Iron Works, Inc. v. Equal Employment Opportunity Commission, 320 F.Supp. 1191, 1194 (S.D.Tex.1970).

We reverse the orders of the district court in both cases insofar as they deny access to any requested item and we remand with directions to enforce the Commission’s Demands for Access to Evidence in every respect.

Reverse and remand.

      . Due primarily to Senator Dirksen’s efforts, a portion of the language of Section 709(a) was changed from “relates to any matter under investigation or in question” to the enacted language “relates to unlawful employment practices covered by this sub-chapter and is relevant to the charge under investigation.”

      . Section 11(1) provides in part that the Board shall have access to “any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question.”

      . A section of the bill as reported by the House which read, “Section 706 and 710 of the Civil Bights Act of 1964, as amended by this Act, shall not be applicable to charges filed with the Commission prior to the effective date of this Act” (U.S.Code Cong. & Ad.News 2166 (1972)), was deleted in conference and the following was substituted : “The amendments made by this Act to section 706 of the Civil Bights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act and all charges filed thereafter” (U.S.Code Cong. & Ad.News 135 (1972)).

      . H.R.Rep.No.92-238, 92d Cong., 2d Sess. (1972); reprinted in U.S.Code Cong. & Ad.News 2144 (1972).

      . Counsel for EEOC represented to the magistrate that this requested item “refers to the Augusta [Boulevard, Chicago] and Franklin Park plants” (App. at 54, No. 72-1749. See also, App. at 58-59). EEOC has not sought this information from any of petitioner’s plants throughout the country other than these two specific plants in the Chicagoland area.


author: PER CURIAM:

text:
    Jesus CONTRERAS et al., Plaintiffs-Appellants, v. GROWER SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIFORNIA, an unincorporated association, et al., Defendants-Appellees.
    No. 71-1936.
    United States Court of Appeals, Ninth Circuit.
    Sept. 7, 1973.

      William H. Carder (argued), of Cohen, Farnsworth, Denison & Carder, Salinas, Cal., for plaintiffs-appellants.
    H. Lovell, Jr. (argued), of Lovell & Lovell, San Francisco, Cal., A. Church (argued), of Abramson & Church, Salinas, Cal., Philip B. Bass (argued), Steven L. Swig, Richard D. Maltzman, of Titehell, Maltzman & Mark, San Francisco, Cal., Noland, Hamerly, Etienne & Fulton, Salinas, Cal., Myckoff, Parker, Boyle & Pope, Watsonville, Cal., Pioda, Leach, Stave, Bryan & Ames, Salinas, Cal., for defendants-appellees.
    Before CHAMBERS and TRASK, Circuit Judges, and TAYLOR, District Judge .

       Of the District of Idaho (sitting by designation).

   PER CURIAM:

The plaintiffs-appellants, Jesus Contreras, et al., are appealing from an order entered on April 8, 1971, by the district court granting the motion of defendants-appellees, Grower Shipper Vegetable Association of Central California, et al., to dismiss appellants’ complaint. The motion was granted on the ground that appellants lacked the requisite standing to sue under Section 4 of the Clayton Act, Title 15 U.S.C. § 15.

The appellants are agricultural employees engaged as field workers in the growing, harvesting and processing of iceberg lettuce. They allege that the ap-pellees contracted, combined and conspired in interstate trade and commerce to fix prices for iceberg lettuce at an artificially high and noncompetitive price by limiting the total amount of iceberg lettuce produced and sold by them each year. Appellants claim they were injured in their business or property in that the work available to them was reduced by appellees’ action in limiting the amount of lettuce production.

The appellees claim that the appeal was premature in that it was not taken from a final order since it dismissed the complaint and not the cause of action. In light of the decision in Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965), we believe, in the circumstances of this case, the appeal was not premature.

In determining that the appellants did not have standing to bring this action under Sec. 4 of the Clayton Act, the district court relied on the following decisions: Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51, 54-55 (9th Cir. 1951), cert, denied 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952); Hoopes v. Union Oil Company, 374 F.2d 480 (9th Cir. 1967); Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190 (9th Cir. 1964), cert, denied 379 U.S. 880, 85 S.Ct. 143, 13 L.Ed.2d 87 (1964) ; Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358 (9th Cir. 1955).

We are in complete agreement with the district court that these cases clearly indicate that the appellants do not come within the “target area” as that term is defined in this Circuit for determining the question of standing to sue under Section 4 of the Clayton Act. See also In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122 (9th Cir. 1973).

Accordingly, we affirm.


author: PER CURIAM.

text:
    John F. CURRAN, Jr., Plaintiff-Appellant, v. Richard C. LEE, Mayor, City of New Haven; the City of New Haven, and its Agents, Defendants-Appellees.
    No. 4, Docket 73-1374.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 12, 1973.
    Decided Oct. 3, 1973.
    John F. Curran, Jr., pro-se.
    Thomas F. Keyes, Jr., Corp. Counsel, New Haven, Conn., for defendants-appel-lees.
    Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
   PER CURIAM.

John F. Curran, Jr., appeals pro-se from a judgment in the District of Connecticut, entered January 17, 1973, which denied his application for an injunction against the New Haven, Connecticut St. Patrick’s Day parade. Cur-ran contends that aid by a city to a parade named for a religious figure violates the First and Fourteenth Amendments. We affirm.

Every year on the Sunday afternoon before St. Patrick’s Day (March 17), a St. Patrick’s Day parade takes place in New Haven. Several of the city’s streets are closed to traffic during the parade, and the city contributes modest amounts to the parade pursuant to its charter. It appears that $1,000 was given in 1969, $1,000 in 1970, $1,200 in 1971, and $1,200 in 1972. New Haven also gives annual aid to the Columbus Day parade and to the Freddie Fixer parade (a tribute to the efforts of minority groups to clean depressed areas of the city).

On March 5, 1969, John F. Curran, Jr., seeking an injunction against the St. Patrick’s Day parade, brought a pro-se action against Mayor Richard C. Lee, the City of New Haven, and its agents in the district court. The complaint alleged that the parade was a religious procession and that the use of city streets, equipment, employees, and money to aid it violated the First and Fourteenth Amendments. Curran is a resident of New Haven and alleged that he had been unsuccessful in efforts at public hearings to prevent appropriations to the St. Patrick’s Day parade.

Defendants responded to the complaint with a motion to dismiss for lack of jurisdiction, in which they included a ground of lack of standing, which motion Judge Zampano denied on June 18, 1969 ***The defendants then filed an answer denying the allegations of the complaint. _ Subsequently, Curran amended his complaint to request an injunction against all religious processions in New Haven streets and parks, except customary funeral processions.

On December 11, 1972, a hearing was held before Chief Judge Blumenfeld. At this hearing neither party introduced witnesses, but only submitted further argument. Chief Judge Blumenfeld reserved decision on the matter, and on January 17, 1973 filed an unpublished opinion in which he held that Curran was not entitled to relief.

Curran would have us hold that any aid by New Haven to the St. Patrick’s Day parade is an unconstitutional act respecting an establishment of religion merely because St. Patrick is known as an apostle of the Roman Catholic faith. This we cannot do. The practice of honoring St. Patrick may be rooted in religious belief, but a parade named after him is not necessarily a religious procession. It is quite possible that the parade has evolved into a secular celebration by Irish-Americans and their friends. Cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

The record in this ease fails to give - a description of the New Haven parade. The degree of clergy or church participation is unknown. Similarly, the record fails to tell us whether the bands (if any) play religious or non-religious music, whether the floats (if any) depict religious or non-religious events, and whether the speeches made (if any) are on religious or non-religious topics.

Curran has not met his burden of showing that the aid given the parade violates the Establishment Clause. On this record we cannot tell what is the purpose of granting aid to the parade, what is the effect of granting such aid, and whether granting such aid fosters excessive governmental entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Accordingly, we find no error in the district court’s dismissal of the complaint. Cf. Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L. Ed.2d 790 (1971); Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968).

Affirmed.

      . New Haven, Conn., Charter, vol. 1, § 62 (1971) : “The board of finance, upon recommendation of the board of aldermen, may make appropriations for public receptions, parades, concerts, and celebrations to an amount not exceeding fifteen hundred dollars for any said purposes in any year. tt

      . Since this suit was filed, Bartholomew Cui-da has succeeded Richard C. Bee as mayor. We treat Guida as having been automatically substituted as a party. Any misnomer in the caption of this action is treated as one “not affecting substantial rights of the parties.” Fed.R. Civ.P. 25(d).

      . The district court treated this complaint liberally because the plaintiff was proceeding pro-se. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Therefore, the complaint was treated as though proper parties were joined. Slip op. at 2 n. 4. Municipalities are not subject to suit under 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

      . Appellees urge, as an alternative ground for affirmance, that Judge Zampano erred in upholding plaintiff’s standing. The judge’s citation of Frothingham v. Mellon, 262 U.S. 447, 486, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), did not support his ruling, since the passage mentions only “resident taxpayers” and plaintiff had not shown himself to be such. However, plaintiff might have overcome this deficiency, and there is some recent precedent for a more liberal view of standing in cases under the Establishment Clause. See Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944, 946-947 (1970). In light of our holding on the merits, we think it unnecessary to consider appellees’ alternative argument.

      . Appellant in his brief gives the following description of St. Patrick:
      During the early fifth century there lived in Ireland a person renowned for his religious learning and remarkable achievements in the introduction of Roman Catholicism in Ireland, a country which had previously been dominated by paganism. Returning to Ireland after completing Theological studies on the Continent, he soon became a noted prelate and was elevated by Pope Leo to the office of Bishop of Ireland. During this period, he concentrated upon and zealously devoted his efforts in church building and missionary activities. Indeed, he is credited with the, building of several hundred churches in Ireland, as well as the conversion of more than 12,000 persons to Roman Catholicism. Retiring from active church endeavors, he devoted the balance of his life to further religious studies and the writing of religious tracts.
      This famous religious personality bore the name of Patrick, and was subsequently elevated to sainthood, and as Saint Patrick, he became the patron Saint of Ireland. He is still revered and commemorated as the patron Saint of Erin, notwithstanding his reduction in rank by a recent papal decree.

      . Chief Judge Blumenfeld realized the insufficiency of the evidence, but he took judicial notice of the “non-religious, essentially Irish-ethnic” composition of the parade. Slip op. at 2 & n. 5. The sources he cited appear to be general works about St. Patrick’s Day parades in America. We feel that it is more appropriate to focus on the nature of the particular observance in New Haven, and we cannot take judicial notice of this.

      . Curran also complained at the hearing that New Haven had given the Polish Roman Catholic Union $550 to underwrite a convention that was held in New Haven during September 1970. He said that at that time he witnessed a parade with a cardinal, bishops, and priests in religious vestments. Curran does not claim that the convention has returned or will return to New Haven. Therefore, there is no basis for injunctive relief.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Billy Gene MAXWELL and Robert Dale Mobley, Defendants-Appellants.
    No. 73-1668
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 1, 1973.

      Jerry H. Center, Oxford, Miss, (court appointed), for defendants-appellants.
    H. M. Ray, U. S. Atty., Alfred E. Moretón, III, Will R. Ford, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appel-lee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Billy Gene Maxwell and Robert Dale Mobley appeal from their convictions for possession of a sawed-off shotgun not registered in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d) (1970). They complain of the admission into evidence of the shotgun seized during a search of their truck, and of the introduction of certain statements they made to Treasury Department agents. We affirm.

The events involved occurred in a trailer park in Grenada, Mississippi, on September 13, 1972. In the early evening on that date, one Jack Williams received a threatening telephone call from a caller, at first unknown to him, who identified himself as Billy Maxwell. Maxwell wanted to know why Williams had beaten his sister, Ann Williams. Williams hung up the telephone. Thirty minutes later Maxwell called again and invited Williams to come to a certain motel where Maxwell “would beat the hell out of him.” Williams’s wife, disturbed by the calls, telephoned the police. Shortly after the second call to Williams, Mobley and Maxwell appeared at the home of Williams’s mother, in the Grenada trailer park, where Williams and his wife were visiting at the time. As the men got out of their truck, Williams’s wife saw them put something she believed to be a gun under the front seat of the truck. She called the police a second time asking them to “please hurry up.”

The police arrived at the trailer park shortly after Maxwell and Mobley. While one police officer questioned the defendants, another stood talking with Mrs. Williams beside the defendants’ truck. Mrs. Williams asked one of the officers to “look in the truck and get that gun out before they let him go.” The officer refused to do this, and told Mrs. Williams that she could not search the truck either. “Lady, you can’t do that,” he said. Ignoring this admonition, Mrs. Williams entered the truck and came out with a .22-ealiber pistol. While the truck door was open and its interior light on, the police officer could see inside the truck. He saw shells on the seat and a few inches of the barrel of a shotgun protruding from underneath the front seat of the truck. He reached into the truck and seized the shotgun.

The seizure of the shotgun was not unlawful. To begin with, there was no constitutional problem with Mrs. Williams’s actions. The fourth amendment does not apply to searches and seizures conducted by private parties. See, e. g., United States v. Blanton, 5 Cir. May 30, 1973, No. 72-3348. Mrs. Williams could not in any way be said to have been acting as the officer’s “agent” in searching the truck; indeed, her action directly contravened the officer’s instructions. Nor is there any constitutional objection to the officer’s action. When an officer is in a place where he has a right to be, he may lawfully seize any evidence, contraband, or dangerous 'items in “plain view.” Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. See United States v. Looney, 5 Cir. 1973, 481 F.2d 31, in which officers inadvertently discovered a gun in plain view in a bedroom while conducting a cursory security search after making a lawful arrest in a house.

The second issue the appellants raise concerns the introduction of certain statements made in the course of their interrogation by federal authorities. Two Treasury Department agents, accompanied by a deputy sheriff of Grenada County, questioned the defendants at the defendants’ home on the day following the incidents at the trailer park. The defendants were not then in custody, but the agents nevertheless took care to advise them of their rights. The defendants told the agents that they had innocently borrowed the shotgun so that they could kill snakes while they were preparing a deer feeding plot. They refused, however, to disclose the identity of the person from whom they had borrowed the gun.

The defendants did not object to the admission of these statements prior to trial. They first made their objection when the Government sought to introduce the statements at trial. The trial judge then held a voluntariness hearing out of the presence of the jury. The defendants contended that the deputy sheriff who was later to accompany the Treasury agents during the questioning had spoken with them four or five hours before the agents had come to their home. They said that the deputy had told them that “it would be best, you know, probably wouldn’t be anything to it, just go ahead and tell these men, you know, everything that happened in detail and just be truthful to them.” The deputy sheriff had not been called to testify at trial. He was therefore unavailable to testify at the voluntariness hearing when the defendants had raised their objection during the trial.

The trial judge was not in error in allowing the agents to testify as to the statements the defendants made. The trial judge complied with the provisions of 18 U.S.C. § 3501 (1970) by holding a voluntariness hearing outside the presence of the jury and by subsequently allowing the jury to hear testimony going to the issue of voluntariness.

The trial court’s finding of fact, including its credibility determinations, on the question of the voluntariness of the statements must be sustained on appeal unless “clearly erroneous,” e. g., United States v. Montos, 5 Cir. 1970, 421 F.2d 215, 219 n. 1, cert, denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. As the Supreme Court recently reiterated in Schneekloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, 1973:

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker ? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has’ been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.
“In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.”

Thus in United States v. Bailey, 468 F. 2d 652, 655, 660 (5th Cir. 1972), aff’d on reh. en banc, 480 F.2d 518, 5th Cir., 1973, where the trial court found as a fact that a police officer had “pled with appellant to give himself up if he was guilty, saying it would be better for all concerned if he would do so” and the appellant thereupon went and confessed to FBI agents after being fully advised of his rights, this court sustained the admission of the confession. We said:

“But from the totality of the circumstances found to have occurred in the instant case, we are unable to say that appellant’s confession was involuntary as a matter of law due to psychological coercion.”

Here it is significant that the statements the defendants made to the agents did not differ materially from their testimony on the merits when they took the stand. They pitched their defense on their story of having borrowed the guns to kill snakes; argued that they should not be punished for an innocent mistake; and pointed to their cooperation with the agents as evidence of their story. The jury exercised its prerogative of not believing the defendants. Their statements were neither erroneously admitted nor prejudicial.

The judgment must be affirmed.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    Arland L. GERBERDING, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1301.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Oct. 4, 1973.

      Arland L. Gerberding, pro se.
    Robert G. Renner, U. S. Atty., and Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by petitioner Gerberding from final order of the United States District Court, entered April 25, 1973, denying his 28 U.S.C. § 2255 motion to vacate sentence imposed upon his plea of guilty to an indictment charging him with aiding in the escape of a federal prisoner, in violation of 18 U.S.C. § 752. The five-year sentence imposed by Judge Bell, now deceased, on November 4, 1955, provides that the sentence is “to be served concurrently and not consecutively with sentence heretofore imposed in the United States District Court for the Northern District of Iowa, which said sentence is to commence upon delivery of defendant by the Minnesota State Authorities to the United States Marshal for service of said sentence imposed and mentioned herein.” The federal sentence referred to in the sentence imposed by Judge Bell was one resulting from petitioner’s conviction in the Northern District of Iowa on three counts of bank robbery under 18 U.S.C. § 2113. Concurrent sentences ranging from ten to twenty years were imposed on each count.

In Gerberding v. United States, 471 F.2d 55 (8th Cir. 1973), we held the bank robbery conviction to be valid but determined only one sentence should be imposed and remanded the case for re-sentencing. Upon remand, the Iowa federal district court imposed a general sentence on all counts of ten years and gave petitioner credit for the time served since taken into federal custody on September 23, 1970, and suspended the balance of the sentence, placing petitioner on probation for five years.

At the time of the federal sentence just described, petitioner was serving sentences previously imposed by Minnesota State courts as a result of state convictions. Petitioner’s criminal records are described in Minnesota Supreme Court cases reported at 275 Minn. 195, 146 N.W.2d 541 (1966) and 282 Minn. 524, 162 N.W.2d 204 (1968).

Petitioner upon completion of the service of his state sentences came into federal custody and commenced serving his federal sentences hereinabove described on September 23,1970.

Petitioner urges as a basis for reversal, (1) petitioner was not represented by counsel or inadequately represented by counsel at the time of the acceptance of his guilty plea; (2) petitioner’s five-year sentence here involved is automatically terminated by his release on his bank robbery sentence. We find both contentions to be without merit and affirm.

Chief Judge Devitt in his order denying petitioner relief states that petitioner previously had filed a motion based upon the same grounds presently urged which he denied by his order filed April 9, 1973, and that under § 2255 he is not required to entertain a successive motion for similar relief. Section 2255 expressly so provides. No appeal has been taken from the April 9, 1973, order. Nevertheless, Judge Devitt made a finding reading:

“The Court has examined the files and records and is satisfied that the contentions are without merit. The minutes of the proceedings as recorded by then Deputy Clerk Eckley and the Judgment and Commitment signed by Judge Bell reflect that petitioner was represented at the time of his arraignment and sentencing by Harry W. Oehler, St. Paul attorney, now deceased.”

Additionally, the court found that petitioner at the time of his guilty plea to the criminal charge was adequately represented by counsel.

Petitioner’s allegations that his guilty plea was not voluntary and that he was denied competent representation by counsel are without merit. The record reflects that the petitioner had faced criminal charges on many .previous occasions. Petitioner in his petition asserts that the court asked him how he would plead to helping a federal prisoner to escape to which petitioner replied, “I will plead guilty, your Honor, if the sentence runs concurrent with my other federal sentence.” The petitioner also stated that he had state convictions aggregating ninety-nine years and a twenty-year sentence for bank robbery and that “it hardly seemed of any importance to plead guilty to another five years when that sentence would run concurrent to a larger sentence.”

Petitioner urges a violation of Federal Rule of Criminal Procedure 11. The sentence was imposed in 1955 prior to the 1966 amendment to Rule 11, and prior to the decision in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The procedure prescribed in McCarthy is not retroactive. Halliday v. United States, 394 U.S. 831, 833, 89 S.Ct. 1498, 23 L. Ed.2d 16 (1969).

The trial court on the basis of the record was warranted in determining petitioner was represented by competent counsel at the time of the acceptance of his plea of guilty to the escape charge, and that none of petitioner’s constitutional rights have been violated.

Petitioner’s second point is likewise without merit. The sentence imposed by Judge Bell on the escape charge is clear and unambiguous. The sentence imposed is to be served concurrently with the sentence imposed by the Iowa federal court on the bank robbery charge.

Petitioner offers no authority or logic to support his contention that the termination of one concurrent sentence terminates all concurrent sentences. In Nish-imoto v. Nagle, 44 F.2d 304 (9th Cir. 1939), reversed on other grounds, Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948), the court holds concurrent sentences are separate and distinct sentences and proceeds to define concurrent sentences as follows:

“The fact that the sentences run concurrently merely means that the convict is given the privilege of serving each day a portion of each sentence, so that in practical effect so far as he is concerned if he serves the sentence and nothing occurs subsequent to the judgment to alter the situation he is discharged at the expiration of the maximum term imposed upon any one of the counts. If, however, the sentence upon each count was different, he could not be discharged until he had served the longest sentence. Even if the sentences were all for an equal period, a pardon of the convict upon all but one of the counts would not relieve him from serving the full term imposed upon the count for which no pardon was granted. * * *” 44 F.2d 804, .305.

In Bible v. Arizona, 449 F.2d 111 (9th Cir. 1971), the court holds that the invalidation of one of two concurrent sentences does not terminate a validly imposed concurrent sentence not fully served. See 24B C.J.S. Criminal Law § 1996(1) at p. 660.

In our present case, petitioner has received full credit for all time served on Judge Bell’s sentence concurrently with the bank robbery sentence. This is all that he is entitled to. The termination of the bank robbery sentence by the suspension thereof by the Iowa court in no way affects the time to be served on the five-year sentence to which the petition is here directed.

The order appealed from is affirmed.


author: BUTZNER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Raul MAISONET, Appellant.
    No. 73-1422.
    United States Court of Appeals, Fourth Circuit.
    Argued July 16, 1973.
    Decided Oct. 5, 1973.

      Daniel C. Kaufman, Springfield, Va., (court-appointed) for appellant.
    Paul A. Scott, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., E. D. Va., on brief) for appellee.
    Before CRAVEN, BUTZNER, and RUSSELL, Circuit Judges.
   BUTZNER, Circuit Judge:

Raul Maisonet was convicted of violating 18 U.S.C. § 876 (1970), which prohibits mailing a letter “containing . any threat to injure the person of the addressee.” Maisonet’s principal assignment of error is the denial of his motion for a judgment of acquittal. We affirm because we believe the evidence raised an issue of fact for the determination of the jury.

Maisonet had been sentenced in the Superior Court for the District of Columbia to an indeterminate term of up to ten years for carrying a dangerous weapon after having been convicted of a felony. While he was imprisoned at Lorton, Virginia, he sent a letter to the sentencing judge, which, after charging that his sentence was illegal and that the judge was prejudiced against Puerto Ricans, said “I may have to do all my ten (10) years, but if I ever get out of here and nothing happen to me while I am in here, you will never be able to be prejudice and racist against another Puerto Rican like me.” The letter was addressed to the judge at his home. The government charges that the quoted language constituted a threat to injure him. Maisonet testified that he did not mean the letter to threaten physical harm to the judge, rather he intended to seek the judge’s removal from office. To corroborate his testimony, he showed that he had complained to congressmen and civic organizations about the judge. However, he was unable to show in these communications any specific request for an investigation of the judge or for his removal. He testified he sent the letter to the judge’s home so that it would receive the judge’s personal attention.

Maisonet concedes that the government presented a prima facie case with respect to the dispatch of the letter. He contends, however, that a judgment of acquittal should have been granted because the government failed to introduce extrinsic evidence to show that he intended a threat to injure the judge. Absent such evidence, he argues, a complaint about official conduct that is susceptible of a meaning other than a threat to injure the official is insufficient to sustain a verdict of guilty. In support of his position, he relies on United States v. Barcley, 452 F.2d 930 (8th Cir. 1971). Barcley was convicted of mailing a letter to his court-appointed attorney, in which, after profanely criticizing the attorney, he said, “As soon as I can get this case situated around in the position I want, you are the first s. o. b. that will go; [the prosecutor] will be the next.” Recognizing that the letter fell within the purview of the first amendment, the court directed the entry of a judgment of acquittal. It found the letter to be equally susceptible to two meanings — one threatening, and the other non-threatening. Because the government failed to introduce proof of extraneous circumstances to remove this ambiguity, it ruled that the evidence was insufficient to sustain the verdict.

We are not persuaded by Maisonet’s argument. Barcley was decided by a divided court. The dissenting opinion is in harmony with Bell v. United States, 185 F.2d 302, 310 (4th Cir. 1950), which sets forth our circuit’s rule governing motions for judgments of acquittal:

“When a motion for a directed verdict of acquittal is made in a criminal case, the sole duty of the trial judge is to determine whether there is substantial evidence which, taken in the light most favorable to the United States, tends to show that the defendant is guilty beyond a reasonable doubt. The possibility that a jury may have a reasonable doubt upon the evidence as to the guilt of the defendant is not the criterion which determines the action of the trial judge. The decision on that question is for the jury to make and the rule is the same whether the evidence is direct or circumstantial.”

Even when the defense is based on a claim of first amendment rights, the rule stated in Bell contains the proper standard for determining whether a case should be submitted to the jury. Whether a letter that is susceptible of more than one meaning — one of which is a threat of physical injury —constitutes a threat must be determined in the light of the context in which it was written. See United States v. Prochaska, 222 F.2d 1, 2 (7th Cir.), cert, denied, 350 U.S. 836, 76 S.Ct. 73, 100 L.Ed. 746 (1955). Cf. Watts v. United States, 394 U.S. 705, 708, 89 S. Ct. 1399, 22 L.Ed.2d 664 (1969). If there is substantial evidence that tends to show beyond a reasonable doubt that an ordinary, reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury, the court should submit the ease to the jury. Maisonet’s letter itself and the following facts establish that the government’s proof was sufficient to enable the jury to find beyond a 'reasonable doubt that the letter constituted a threat and Maisonet intended it as such: Mai-sonet had been sentenced to prison by the judge to whom he addressed the letter; he considered the sentence to be illegal; he charged that the judge was motivated by prejudice and racism; he addressed the letter to the judge’s home; and he said nothing in the letter about having the judge investigated or about seeking his removal.

Nor did Maisonet’s defense that he was exercising first amendment rights require a judgment of acquittal at the conclusion of all the evidence. His claim lacks evidentiary support. Although he proved that he wrote congressmen and civic organizations, he was unable to show that he demanded either an investigation or the removal of the judge. Moreover, his reliance on Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), is misplaced because the eases are factually distinguishable. Watts reversed a conviction for threatening the President in violation of 18 U.S.C. § 871. The evidence disclosed that a young man said to a small group of people, who were among the crowd at a public rally at the Washington Monument, that he was not going to report for his draft physical .examination. He asserted, “If they ever make me carry a rifle, the first man I want to get in my sights is [the President].” The Court held that taking the statement in context, it could be interpreted as nothing other than political hyperbole. In contrast, the context in which Maisonet privately wrote the judge does not compel the conclusion that his letter must be interpreted only as a crude, extravagant boast that he would have the judge removed.

What we have written should not be interpreted as a suggestion that Maisonet’s first amendment claim was not a cognizable defense. We hold only that the evidence presented issues of fact for the jury. Watts teaches that “a statute . . . which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.” 394 U.S. at 707, 89 S.Ct. at 1401. The district judge was faithful to this precept. He charged the jury that the government was required to prove beyond a reasonable doubt that the letter contained a threat to injure the judge and that Maisonet intended it to be such a threat. He instructed that every person has the right to communicate with any public official calling attention to improper or unlawful conduct on the official’s part and that the language used may be “vehement, caustic, unpleasantly sharp, vituperative, abusive, or inexact” without violating the law. He cautioned that every person has the right to seek by proper means the removal of any public official, and finally, he told the jury that a threat to seek an official’s removal, regardless of whether the person has reasonable grounds to believe that the official acted improperly, is not a violation of the law. We find no reversible error in Maisonet’s complaints about the charge. Taken as a whole, it properly instructed the jury and adequately presented Maisonet’s defense.

The judgment is affirmed.


author: STEPHENSON, Circuit Judge.

text:
    Percy CROWE, Appellant, v. STATE OF SOUTH DAKOTA, Appellee.
    No. 73-1273.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Oct. 4, 1973.

      Mark Y. Meierhenry, S. D. Legal Services, Rosebud, S. D., for appellant.
    Kermit A. Sande, Atty. Gen., and Walter W. Andre, Asst. Atty. Gen., Pierre, S. D., for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

This is an appeal from an order denying federal habeas corpus relief pursuant to 28 U.S.C. §§ 2241 and 2254, entered April 5, 1973, by the Honorable Fred J. Nichol, Chief Judge of the United States District Court for the District of South Dakota. Judge Nichol’s memorandum decision is reported at 356 F. Supp. 777.

The record shows that on June 23, 1966, appellant was arrested in Yankton County, South Dakota, and charged with first degree rape. Appellant was unable to meet bond, set at $10,000.00. On June 27, 1966, upon a showing of indi-gency by appellant, South Dakota Circuit Judge C. C. Puckett appointed Louis French, a practicing attorney in Yank-ton, South Dakota, to defend appellant. On July 12, 1966, appellant waived preliminary hearing and bond was set at $2,500.00. The record does not conclusively show whether Mr. French was present or absent at the preliminary hearing, although John Kabeiseman, State’s Attorney of Yankton County, recalled that Mr. French had conversed with his client prior to waiver. Mr. French also conversed with appellant just prior to arraignment on July 16, 1966, at which appellant entered a guilty plea. Both Mr. French and the State’s Attorney waived presentence investigation and report, and the State’s Attorney, without objection, introduced to the Court appellant’s F.B.I. “rap” sheet and a picture of the victim. Neither item was formally received into evidence. They were nevertheless examined by Judge Puckett. Thereafter, appellant was sentenced to forty years in the South Dakota State Penitentiary.

On September 14, 1966, appellant filed his pro se petition for post-conviction relief pursuant to South Dakota Compiled Laws, § 23-52 (1967). Judge Puckett denied this initial petition on November 26, 1966. On November 5, 1969, appellant again sought post-conviction relief in South Dakota Circuit Court, where he requested and received a full evidentiary hearing before South Dakota Circuit Judge E. W. Hertz. Again appellant was denied post-conviction relief. The South Dakota Supreme Court affirmed Judge Hertz's determination, Crowe v. State of South Dakota, 194 N.W.2d 234 (S.D.1972), but remanded with directions that appellant be re-sentenced because erroneous information regarding previous rape convictions was relied upon by the trial court in imposing sentence. Appellant’s sentence was reduced to twenty years.

On February 21, 1973, appellant applied for a federal writ of habeas corpus from Chief Judge Niehol, who later ordered that appellant’s habeas corpus petition be quashed since appellant did not establish reversible error in acceptance of guilty plea by convincing evidence. 356 F.Supp. 777, 779.

Appellant bases his requested relief upon two main grounds: that he was denied effective assistance of court-appointed counsel, and that his guilty plea was accepted by the South Dakota trial court in violation of his constitutional rights.

Initially we note that Mr. French died prior to the evidentiary hearing upon the post-conviction petition. As indicated by Chief Judge Nichol, “[t]his infirmity is especially prominent when one of the grounds for relief is the ineffective assistance of counsel. Defense attorney French’s absence eliminates any opportunity for explanation of his defense strategy and pretrial investigation. Reviewing courts are left with only the cold record and [appellant’s] assertions.” 356 F.Supp. 777, 778.

Specifically, appellant contends that he was denied effective assistance of counsel in that counsel failed to make an adequate independent investigation of the alleged crime; that counsel failed to explore possible alternative procedures and defenses; that insufficient time was spent by counsel determining whether appellant would benefit by a mental examination; that appellant did not know the nature of the charges brought against him, nor did he understand the consequences of waiving his right to a preliminary hearing and entering his guilty plea. We find that his claims have not been established.

The adequacy of representation of court-appointed counsel cannot be determined solely upon the amount of time counsel spent advising appellant. Such determination is immaterial as it bears upon the propriety of appellant’s guilty plea, except to the extent that it relates to the issues of voluntariness and understanding. See, State of Missouri v. Turley, 443 F.2d 1313, 1316 (8th Cir. 1971). It is presumed that court-appointed counsel is competent, and a showing must be made before that presumption can be overcome. Kress v. United States, 411 F.2d 16, 22 (8th Cir. 1969); accord, Slawek v. United States, 413 F.2d 957, 959 (8th Cir. 1969); Cardarella v. United States, 375 F.2d 222, 230 (8th Cir. 1967).

After having carefully reviewed the record in this cause, we are satisfied that appellant has failed to carry his burden of overcoming the presumption of counsel’s competency. Likewise, we are satisfied that the trial court’s finding upon this issue was not clearly erroneous. See, Kress v. United States, supra, 411 F.2d 16, 22 (8th Cir. 1969).

Appellant also urges that the South Dakota trial court’s acceptance of his guilty plea under the attendant circumstances was in violation of his constitutional rights. More particularly, appellant alleges that when accepting his guilty plea, the South Dakota trial court failed to inform appellant of his privilege against compulsory self-incrimination and failed to explain the maximum and minimum penalties for first degree rape. He further alleges that he did not know the consequences of his plea, that his plea was not made voluntarily, and that he was sentenced upon an incorrect factual basis.

The South Dakota trial court did not specifically inform appellant of the maximum and minimum penalties for the charge against him. Although Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in effect held that in state criminal proceedings a guilty plea can be upheld only if it is accepted in a manner analogous to the dictates of Fed.R.Crim.Proc. 11, Boykin is applicable only to guilty pleas entered after June 2, 1969, the date that decision was rendered. Meller v. State, 431 F.2d 120, 124 (8th Cir. 1970); accord, Vaughn v. Swenson, 446 F.2d 1009, 1010 (8th Cir. 1971); Crosswhite v. Swenson, 444 F.2d 648, 650 (8th Cir. 1971); Nachtigall v. Erickson, 178 N.W.2d 198, 200-201 (S.D.1970).

We are satisfied, however, that the trial court’s finding that the plea was a voluntary one under the totality of the circumstances was not clearly erroneous. See, Vaughn v. Swenson, supra ; Crosswhite v. Swenson, supra. The South Dakota trial court advised petitioner that he had a right to a trial by jury, that he had a right to confront the witnesses against him and to bring forth his own witnesses, and that he was entitled to be out on bond until the next term of court. In his initial appearance before a municipal judge less than a month before his plea, petitioner had been advised of his right to remain silent and that anything he said could be used against him. Moreover, the petitioner was not unfamiliar with the criminal law. In 1937, he had received a ten-year penitentiary sentence on the charge of rape. Thereafter, he was at various times charged with grand larceny, breaking jail, 4th degree burglary and escape from jail. Finally, he had been told before he pled guilty that the charge was a serious one.

Affirmed.

      . See Crowe v. State of South Dakota, 194 N.W.2d 234, 238 n. 1 (S.D.1972) : “Following Mr. French’s untimely death, his office files were purchased by another Yankton law firm. It was stipulated at the post-conviction hearing that no file was found in Mr. French’s office concerning petitioner’s ease. Petitioner argues that this leads to the inference that Mr. French’s investigation and preparation on petitioner’s behalf was so onrsory that he did not even bother to open a file. We believe that there could be logical explanations for the absence of any separate file on petitioner’s case.”

      . The facts are fully discussed in Crowe v. State of South Dakota, supra, 194 N.W.2d 234, 237-241 (S.D.1972), and need not be repeated herein.