author: CASTLE, Senior Circuit Judge.

text:
    TRW, INC., Plaintiff-Appellant, v. ELLIPSE CORPORATION and Ford Motor Company, corporations, Defendants-Appellees.
    No. 73-1348.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 12, 1974.
    Decided April 22, 1974.

      Lee N. Abrams, George N. Hibben, Chicago, Ill., Robert W. Poore, Cleveland, Ohio, for plaintiff-appellant.
    Norman Lettvin, Chicago, Ill., for defendants-appellees.
    Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
   CASTLE, Senior Circuit Judge.

Plaintiff TRW, Inc. appeals from an order dismissing its complaint against defendants Ellipse Corp. and Ford Motor Co. in an action seeking a declaratory judgment that claim 3 of Rhine patent No. 2,628,568 is invalid. TRW asserts on appeal that the lower court erred in dismissing the complaint for lack of jurisdiction and in the exercise of its discretion. Specifically, TRW contends that it is not bound under principles of res judicata by the finding in Ellipse Corp. v. Ford Motor Co. respecting the validity of claim 3 of the Rhine patent. TRW asserts that the jurisdictional elements of a declaratory judgment action are present, because a justiciable case or controversy, reflected in a viable, outstanding charge of patent infringement exists, and because effective relief to effectuate the judgment could be granted. Moreover, TRW maintains that it is an abuse of discretion to dismiss the action, since the issues have not been resolved as against TRW and since the entertaining of this suit would not result in “piecemeal” litigation of the claim’s validity. In the alternative, TRW argues that if this suit’s objective' is deemed designed to seek modification of the court’s mandate in Ellipse Corp. v. Ford Motor Co., this court should grant leave to the district court to evaluate the validity of the patent claim in light of the new evidence tendered by TRW and to reopen the merits of that case to effect relief, because the court was misled into sustaining the patent claim on an erroneous inventive feature. We have considered these issues, and we affirm the dismissal of the action.

This suit grew out of an earlier action, Ellipse Corp. v. Ford Motor Co., supra, in which Ellipse charged that power steering pumps manufactured or sold by Ford infringed the Rhine patent. The lower court sustained the validity and infringement of claims 1 and 3 of the patent,2 and this court affirmed the findings respecting claim 3. The Supreme Court denied certiorari, and the action is now pending in the district court on an accounting to determine damages.

TRW was not a named party in the prior suit, and its participation was limited to observing the district court proceedings and to filing amicus curiae briefs at the appellate level. However, TRW manufactured and sold to Ford approximately 35% of the power steering pumps held to infringe claim 3 of the Rhine patent. These pumps were sold pursuant to a contract in which TRW agreed to indemnify Ford for the costs of defending any accounting proceeding and for any judgment based on patent infringement by the pumps purchased from TRW.

TRW asserts that as it was not a named party in the suit of Ellipse Corp. v. Ford Motor Co., it was not bound by the findings of this court in that case respecting the validity of claim 3 of the Rhine patent, Philips Electronics and Pharmaceutical Industries Corp. v. Thermal and Electronics Industries, Inc., 450 F.2d 1164, 1170 (3rd Cir. 1971), and it is not barred from relitigating the validity of the claim. American Photocopy Equipment Co. v. Rovico, Inc., 384 F.2d 813 (7th Cir. 1967), cert. den., 390 U.S. 945, 88 S.Ct. 1030, 19 L. Ed.2d 1133 (1968). Ellipse does not contend that TRW was a party to the previous litigation; rather, it argues that TRW was in privity with Ford and is thereby barred from bringing this suit. “Where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal. ... A judgment is res judicata in a second action upon the same claim between the same parties or those in privity with them.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402, 60 S.Ct. 907, 917, 84 L.Ed. 1263 (1939); Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1876).

In most situations where privity has been found to exist, one or more of the following relationships are present between the privies: concurrent relationship to the same right of property, successive relationship to the same right of property, or representation of the interests of the same person. IB J. Moore, Federal Practice, ¶ 0.411 [1] (2d ed. 1948). These relationships are illustrated by the cases cited by Ellipse. Thus, in Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 37 S.Ct. 506, 61 L.Ed. 1148 (1917), the Supreme Court found that a company wholly-owned by another company was its privy, because the companies “represented precisely the same, single interest.” Id. at 298, 37 S.Ct. at 507. The same principle was applied by the Court in Sunshine Anthracite Coal Co. v. Adkins, supra, where the Court found privity between officers of the same government “so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation between that party and another officer of the government.” That holding was followed in Ma Chuck Moon v. Dulles, 237 F.2d 241 (9th Cir. 1956), cert. den., 352 U.S. 1002, 77 S.Ct. 559, 1 L.Ed.2d 547 (1957), where the court also held that privity existed between a father who brought a prior action on behalf of his sons and the sons themselves in a later action. In J. R. Clark Co. v. Jones & Laughlin Steel Corp., 288 F.2d 279 (7th Cir. 1961), and in Brunswick Corp. v. Chrysler Corp., 408 F.2d 335 (7th Cir. 1969), the second defendant had purchased the business assets of the unsuccessful party during or subsequent to the determination in the previous litigation to which he was held bound. Similarly, in Schnitger v. Canoga Electronics Corp., 462 F.2d 628. (9th Cir. 1972), the court found res judicata applicable where the declaratory judgment plaintiff was a prospective buyer of infringing products which the manufacturer had been enjoined from making available, thus presenting only a derivative, successive interest to the same property right. None of these relationships is applicable to the case at bar; certainly there is no question of representation of the interests of the same party, and furthermore, there is no relationship (either concurrent or successive) arising from the general doctrine of privity of estate.

Two other cases cited by Ellipse, Switzer Bros., Inc. v. Chicago Cardboard Co., 252 F.2d 407, 411 (7th Cir. 1958), and Jones v. Craig, 212 F.2d 187, 188 (6th Cir. 1954), illustrate the res judicata effect of participation in litigation by a nonparty whose interest is sufficiently closely related to the suit. In the former case, an indemnitor who retained the indemnitee-defendant’s counsel and controlled the litigation was held entitled to the benefit of the judgment for the indemnitee. In the latter case, a warrantor received the benefit of an earlier judgment in a case in which he jointly prepared the defense and shared its cost. It is well-established that one interest sufficient to bring a participating non-party within the conclusionary rule is a legal duty, right or interest dependent wholly or in part on a cause of action before the court for adjudication. IB J. Moore, supra, at 0.411[6]. Professor Moore explicitly suggests that a manufacturer-indemnitor who participates in the defense of a patent infringement suit against a dealer in the manufactured product would have sufficient interest under this principle to be bound by the resulting decree. Id. at n. 20. But the crucial distinction between this example and the cited cases and the case at bar is the extent of participation, for privity in the law of judicial finality usually connotes representation. TRW limited its role in the prior suit to observing the proceedings and to filing amicus curiae briefs. These are insufficient modes of participation to render applicable the doctrine of res judicata, Brown-Crummer Investment Co. v. Paulter, 70 F.2d 184 (10th Cir. 1934) ; 1B J. Moore, supra, and therefore TRW is not bound by the adjudication of the validity of the claim in Ellipse Corp. v. Ford Motor Co.

TRW contends that the jurisdictional requisites for a declaratory judgment exist in part because a justiciable controversy is created between a patent owner and the manufacturer of a product when the patent owner alleges infringement against one who has purchased the product from the manufacturer, even when no direct charge has been made against the manufacturer. The implication of the argument is that a real controversy was created between Ellipse and TRW as a consequence of Ellipse’s allegation of infringement against Ford respecting certain power steering pumps, some of which were manufactured by TRW. It is true, as this court stated in Sticker Industrial Supply Corp. v. Blaw-Knox Co., 367 F.2d 744, 747 (7th Cir. 1966), that under the Declaratory Judgment Act, justiciability exists if the alleged infringer or his customers or dealers have been notified of the patent owner’s claim. Accord, E. Borchard, Declaratory Judgments 807 (2d ed. 1941). But that contention begs a fundamental question of this appeal: When is the underlying charge of patent infringement adjudicated with sufficient finality to extinguish the justiciable controversy ?

This case markedly resembles Walker Process Equipment Co. v. FMC Corp., 356 F.2d 449 (7th Cir. 1966), in which a manufacturer of sewage equipment sought a declaratory judgment of the invalidity of a patent. The patent owner, FMC, had previously sued one of Walker’s customers, alleging infringement through the use of Walker equipment. The Fourth Circuit held that the patent was valid and not infringed. In the action for a declaratory judgment, this court affirmed because of the absence of an actual controversy, stating, “Whatever infringement charges were made in the . . . litigation were resolved, and the controversy between the parties terminated, by the judgment of the Court of Appeals.” Id. at 451. The court cited Aralac, Inc. v. Hat Corp. of America, 166 F.2d 286 (3rd Cir. 1948), for the proposition that a declaratory judgment cannot be maintained against a patent owner unless the plaintiff is in fact accused of infringement by the owner, and the court concluded, “In view of the fact that there are no outstanding charges by FMC of infringement by Walker or Walker’s customers, there is no justiciable controversy between the parties.”

TRW asserts that Walker and Aralac are factually distinguishable from the present case, because at the time of the filing of the declaratory judgment complaints, these patents were not being asserted as infringed by products manufactured by the declaratory judgment plaintiffs. In fact, however, FMC had formally charged Walker with active inducement of infringement in the prior case. Moreover, the gist of every justi-ciable controversy involving a patent owner and a manufacturer whose customer is sued is the implicit charge of active inducement to infringement or contributory infringement. Again, the issue in both Walker and the present case was the extinguishment, and not the creation, of a justiciable controversy. And the striking parallel between Walker and the case at bar is that in neither case did the patent owner make a charge of infringement against the manufacturer independently of the allegation against the customer.

TRW replies that in fact an implicit, independent charge of patent infringement was leveled against TRW by Ellipse by virtue of the allegation of infringement in Ellipse Corp. v. Ford Motor Co. which survives any termination in that suit and provides the jurisdictional basis for this action. TRW asserts that a claim of infringement against a product purchased and used without essential alteration by the customer necessarily embodies a claim of infringement against the manufacturer (in contrast with a claim of infringement arising out of the use of the manufacturer’s product in a process allegedly within the scope of the patent). We find this distinction unacceptably artificial and arbitrary. While it is true that the casein fibers, the manufacturer’s product in Aralac, were noninfringing except when used in an allegedly infringing process to convert the fibers and other ingredients into a new commodity, the manufacturer’s product in Walker, sewage digester stirrer equipment, was not likewise susceptible to myriad uses. Though the complaint in Walker may have been couched in terms of process infringement, it was actually directed against a product so specialized (unlike that of Aralac) as to have doubtful utility outside the process. Similarly, the charge here was directed against a particular customer’s specialized use of an infringing power steering pump. We conclude that where, as here, the charge of patent infringement is asserted against the use of a product by a particular customer, no independent charges of patent infringement unrelated to the litigation are implied.

TRW next contends that whereas the patent in Walker was held not infringed, Ford’s power steering pump was found to infringe Ellipse’s patent. Therefore, the “cloud” on TRW’s patent persists, and the controversy is not extinguished. However, the existence of a viable, outstanding charge of patent infringement is only an indirect measurement of a reasonable apprehension of liability, the “touchstone” for determining jurisdiction under the Declaratory Judgment Act. Sticker Industrial Supply Corp. v. Blaw-Knox Co., swpra, 367 F.2d at 747. Under the holding of the Supreme Court in Aro Manufacturing Co. v. Convertible Top Co., 377 U.S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964), there can be no apprehension of liability by TRW arising from the decision against Ford because judgment against Ford extinguishes the claim and bars a second suit against TRW on the same matter. Similarly, there can be no reasonable apprehension of liability respecting other claims, because no viable, outstanding charges of patent infringement survive the Ellipse Corp. v. Ford Motor Co. litigation.

TRW finally contends that even if there are no independent charges of infringement against it, a justiciable controversy still exists because, unlike Walker, the prior litigation has not yet been terminated by a final decree which is a binding adjudication between the parties. Therefore, because the court could reopen the case prior to entry of its final judgment at the close of the accounting, the jurisdictional predicate for this action is present. In In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994 (1897), the Supreme Court held that there could be no rehearing of the merits even though the reviewing court’s decision did not amount to a final judgment because of a pending accounting, unless the reviewing court had first granted leave. The case of Ellipse Corp. v. Ford Motor Co. was exhaustively litigated through an appeal in this court on the validity of claim 3 of the patent, followed by a petition for rehearing in this court as well as by both a petition for certiorari and a petition for rehearing in the Supreme Court. Further, even TRW concedes that the allegedly new evidence which it has obtained was either known or could have reasonable been known by Ford, precluding its use as a basis for a motion for a rehearing on the merits in an attempt to achieve a different result. Unlike Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475 (1922), there is no litigation arising from independent charges of patent infringement pending elsewhere which might undermine the lower court’s decision respecting the patent’s validity. Thus, whether the lower court’s decision is technically res judicata, Locklin v. Day-Glo Color Corp., 468 F.2d 1359 (9th Cir. 1972), or “law of the case” is somewhat of an academic question. On the facts presented here, the possibility of a rehearing on the merits is so extremely remote as to warrant the conclusion that the lower court’s decision is sufficiently final for purposes of extinguishing the controversy on which the viable, outstanding charge of patent infringement would have necessarily had to have been grounded.

Erroneously assuming that an actual controversy still exists, TRW further argues that effective relief predicated on a favorable decision could be granted, and therefore, a decision in favor of TRW holding claim 3 of the patent invalid would be more than a mere advisory opinion. As TRW points out, a most significant fact, critical to this appeal, is that the proceedings in Ellipse Corp. v. Ford Motor Co. are still pending on an accounting. TRW suggests, as an example of effective relief, that a court could require Ellipse to forego pursuit of any further effort to recover from Ford on account of any alleged patent monopoly. This request for this extraordinary form of relief from a prior decree is wholly unsupported; Direetoplate Corp. v. Huebner-Bleistein Patents Co., 44 F.2d 783 (7th Cir. 1930), is authority only for effecting rather than relieving a prior court decree. Rather, as the lower court presently noted, what TRW is really asking for is a modification of the decision previously entered in Ellipse Corp. v. Ford Motor Co. However, as the Ninth Circuit has held, a court of appeals is without power to transform an independent action into a motion to reopen a former judgment to permit further proceedings. Ma Chuck Moon v. Dulles, supra, 237 F. 2d at 243. Therefore, since we cannot stay the accounting and order the reopening of the merits of the decision in Ellipse Corp. v. Ford Motor Co., we agree with the conclusion of the lower court that a finding of invalidity of the patent at this time would be no more than an advisory opinion.

TRW suggests, too, that if it is allowed to proceed in this ease and to obtain a final judgment of patent invalidity, it could receive effective relief indirectly, because that judgment would be a basis on which Ford, a customer in privity with TRW, could properly seek leave to reopen the earlier case. We reject the distortion in the requirement of privity inherent in TRW’s litigation strategy. It is true that in Hart Steel Co. v. Railroad Supply Co., supra, the Supreme Court held that res judicata was applicable in the patent owner’s prior suit pending on appeal against the distributor of the manufacturer’s product when the patent owner lost a later-filed suit against the manufacturer of the accused product. But significantly, the manufacturer and the distributor in that case were but two manifestations of the same identity. In National Brake & Electric Co. v. Christensen, 254 U.S. 425, 41 S. Ct. 154, 65 L.Ed. 341 (1921), the Seventh Circuit had affirmed a holding of infringement and remanded for an accounting when the defendant, National Brake, petitioned to reopen the case to show that a final judgment in the Third Circuit had held the same patent to he invalid. This court decided against entertaining the petition, as its judgment was final, but the Supreme Court held that the petition should be treated as a request to the court to grant leave to the district court to reopen the case. Yet, unlike the case at bar, the defendant in that case alleged that it had been the substantial party in interest, though not the nominal defendant, in the Third Circuit action. Moreover, TRW incorrectly asserts that Ford on its own motion could present proof in the accounting proceeding of a decision in favor of TRW as a ground for excluding TRW pumps from the scope of the accounting. National Brake makes plain that Ford would have to apply in this court for leave to file a bill in the court of original jurisdiction in the nature of a bill of review, setting up the new matter as a bar to further proceedings. “Such applications are addressed to the sound discretion of the appellate tribunal, and should be decided on considerations addressed to the materiality of the new matter and diligence in its presentation.” Id. at 430, 41 S.Ct. at 156. We need not prematurely face this question not before us at this time. We only note in passing, because of its bearing on the court’s capacity to grant effective relief, that it seems somewhat dubious to assume that the material is either new or was diligently pursued, given the candid admission of TRW that Ford either knew or could have reasonably known about the material.

TRW finally asserts that effective relief could be granted because it manufactures a myriad of products, including many forms of pumps which might be considered similar or equivalent in design characteristics to those sold to Ford. We note that no charge of patent infringement has been made against such TRW products. Furthermore, TRW has not even attempted to demonstrate to the court that its other products so sufficiently resemble the pump at issue that an independent, viable charge of infringement could be inferred.

Even if jurisdiction were present, it would not have been an abuse of discretion for the district court to dismiss the declaratory action, contrary to TRW’s assertion. In E. Edelmann & Co. v. Triple-A Specialty Co., 88 F.2d 852 (7th Cir. 1937), cert. den., 300 U.S. 680, 57 S.Ct. 673, 81 L.Ed. 884 (1937), this court held that the Declaratory Judgment Act permitted an alleged infringer to test the validity of a patent, for “it was the congressional intent to avoid [the] accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to bring suit, after damage had accrued.” Id. 88 F.2d at 854. This was to prevent a patent owner from threatening a manufacturer’s customer with suit for infringement while avoiding suit by the injured manufacturer in merely failing to communicate a direct threat to the manufacturer. Sticker Industrial Supply Corp. v. Blaw-Knox Co., supra. The decision of the court to entertain a suit for a declaratory judgment is a discretionary one. Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321 (4th Cir. 1937). Only when the above policy of the Act is effectuated may the discretion of the court to hear an action be soundly exercised. Where there is a suit pending between the same parties or their privies in which the issue of infringement may be properly adjudicated, discretionary dismissal is appropriate, American Automobile Insurance Co. v. Freundt, 103 F.2d 613 (7th Cir. 1939), because the opportunity to litigate the issue is not denied to the manufacturer. Similarly, where a manufacturer is permitted to intervene in an infringement suit against the customer or where the in-demnitee-customer permits the indemnitor-manufacturer to control the litigation, discretionary dismissal is justified, because again a fair opportunity to litigate the issue has been given to the manufacturer.

In the present case, there is no showing that Ford refused to permit TRW to participate in the defense in the prior suit, that TRW petitioned for intervention in the earlier suit, or that other circumstances such as conflicting positions adopted by the manufacturer and the customer would have denied TRW a fair opportunity to litigate the issue it seeks to have adjudicated in the present case. See, Western Electric Co. v. Hammond, 135 F.2d 283 (1st Cir. 1943). Indeed, it appears that in this case, it was the manufacturer, not the patent owner, who studiously avoided a legal confrontation by limiting his participation solely to observing the earlier proceedings and to filing amicus curiae briefs. It would be perverse to permit the Declaratory Judgment Act, designed to effectuate lawsuits, to be manipulated into a device allowing the avoidance of real legal involvement in an earlier pending suit between the manufacturer’s customer and the patent owner, while permitting the manufacturer subsequently to collaterally attack aspects of the decision unfavorable to its position. Moreover, such action to obtain a judgment in order to reverse the prior court decision smacks of a race for res judica-ta, a variant of the procedural fencing which this court abhorred in Freundt. Finally, for reasons explained previously, since no effective relief could be granted even if a decision favorable to TRW resulted, the dismissal of the declaratory action would be warranted because it could serve no useful purpose. Cf., Chicago Furniture Forwarding Co. v. Bowles, 161 F.2d 411 (7th Cir. 1947). In that sense, the present case resembles the “piecemeal trial” condemned in Yellow Cab Co. v. City of Chicago, 186 F.2d 946 (7th Cir. 1951), which the court held was an advisory opinion to determine the effectiveness of a defense to be introduced in another proceeding.

TRW asserts, in the alternative, that if this action is deemed an attempt to modify the decision of the court in Ellipse Corp. v. Ford Motor Co., and if leave must be granted by this court to empower the lower court to alter its findings during the pendency of an accounting, such leave should be granted to prevent a “miscarriage of justice.” First, a stranger to the lawsuit, who apparently concluded that its interests were insufficiently involved in the suit to warrant even an attempt at intervention, does not have standing to challenge subsequently the findings of the court. Second, even if TRW had standing, this court is not empowered to transmute an independent suit into a motion to reopen a previous decision. Third, even if the alleged new evidence were presented by Ford, since that evidence was either known or could have reasonably been known to Ford, it is unlikely that this evidence would provide the basis for granting a petition for leave to the district court to rehear the merits of the suit. Fourth, there is no basis for claiming that Ellipse has repudiated the court’s decision in Ellipse Corp. v. Ford Motor Co.; on the contrary, in its response to TRW’s request for admissions, the company stated, “Ellipse admits all facts finally found or concluded by the Courts in the adjudication of Ellipse v. Ford, supra, and denies any and all requests that are contrary to, or which collaterally attack, the facts finally found or concluded in said previous adjudication.” Moreover, TRW’s claim that Ellipse Corp. misled the court in the prior action is totally unsupported by the record.

The judgment of the district court is affirmed.

Affirmed.

      . U. S. Patent No. 2,628,568, entitled “High Pressure Pump,” was issued on February 17, 1953 to M. L. Rhine and was subsequently assigned to Ellipse Corp.

      . Ellipse Corp. v. Ford Motor Co., 452 F.2d 163 (7th Cir. 1971), reh. den., (1971, unpub.), cert. den., 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972) (Douglas, J., dissenting), reh. den., 409 U.S. 898, 93 S.Ct. 99, 34 L.Ed.2d 337 (1972).

      . 312 F.Supp. 646 (N.D.Ill.1969).

      . The court also held that a mere economic interest, in the absence of a viable charge of infringement, was insufficient, in rejecting the argument that a manufacturer’s indemnity agreements with possible infringing customers, without more, gave it standing to maintain the action.

      . FMC actually sued both .Walker and a customer in the earlier action. Walker was dismissed from the suit because it was not subject to process in that jurisdiction.


source: Caselaw Access Project

author: MOORE, Circuit Judge.

license: Public Domain

text:
    DIGILAB, INC. and Guillermo Ferla, Appellees, v. The SECRETARY OF LABOR and Lawrence W. Rogers, Appellants.
    No. 73-1244.
    United States Court of Appeals, First Circuit.
    Argued Oct. 2, 1973,
    Decided March 22, 1974.

      William A. Brown, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellants.
    Joseph F. O’Neil, Boston, Mass., with whom Peter L. Zimmerman, Boston, Mass., was on brief, for appellees.
    Before COFFIN, Chief Judge, MOORE  and McENTEE, Circuit Judges.

       Of the Second Circuit sitting by designation.

   MOORE, Circuit Judge.

The Secretary of Labor and Lawrence W. Rogers, Regional Manpower Administrator [Boston area], defendants-appellants, appeal from an order of the United States District Court ordering them to issue an alien certification pursuant to 8 U.S.C. § 1182(a) (14).

Plaintiff Guillermo Feria (Feria) is a native of Uruguay who entered this country on August 14, 1970, to pursue his studies in the field of electrical engineering at Massachusetts Institute of Technology.

Plaintiff, Digilab, Inc. (Digilab), is a corporation doing business in Cambridge, Massachusetts, and engaged in the design, production and sale of analytical and biomedical instrumentation. Digilab had hired Feria as a summer employee in 1971. Desirous of retaining Ferla’s services thereafter, under date of October 26, 1971, Digilab filed an application for alien employment certification on behalf of Feria (Form MA7-50B) for admission pursuant to 8 U.S.C. § 1182(a) (14) together with a statement of Ferla’s qualifications.

On November 15, 1971, the application was denied, notice thereof being given on a printed form with a check placed in paragraph 3 which stated: “Reasons: Available job market information will not warrant a certification of unavailability of workers in the U.S.”

On January 13, 1972, Digilab resubmitted its application for Review to the Regional Manpower Administration (Boston) and presented detailed facts and documentation in support thereof. This application was submitted to the Reviewing Officer of the Manpower Administration and on January 31, 1972, Digilab was informed by the Reviewing Officer that the facts presented failed to produce sufficient grounds for reversing the November 15, 1971, decision. The Reviewing Officer offered the suggestion that Digilab “again contact the Massachusetts Division of Employment Security” in Waltham which could put it in contact with the National Registry for Engineers in Sacramento, California, which “reports an excess of over 200 Electrical Engineers ranging from B.A. up to and including Ph.D.’s.”

On April 7, 1972, plaintiffs filed their complaint (with supporting documents) for a declaratory judgment that Feria be granted the requested certification, alleging that the denial did not set forth findings of facts in conformity with the Administrative Procedure Act and was “arbitrary, an abuse of discretion and contrary to law.”

On January 3, 1973, defendants moved to dismiss the complaint on the merits or in the alternative for summary judgment. This motion was denied. Thereafter plaintiffs filed their motion for summary judgment which was granted. From this order, defendants appeal.

The District Court filed two opinions. The first (February 1, 1973) was addressed to the denial of defendants’ motion for judgment on the pleadings. The Court found that the listing of 200 electrical engineers did not “establish a necessary record of sufficient workers in the United States who are ‘qualified’, ‘available’, ‘able’ and ‘willing’.” Some six weeks after this decision, plaintiffs moved for summary judgment. In opposing this motion, in their memorandum of law defendants asked leave to file any necessary affidavits within three weeks. The record does not disclose any such filing.

In its second opinion (May 4, 1973), 357 F.Supp. 941, the Court held that there must be a determination by the Administrator that there are sufficient workers able, willing, qualified and available to Digilab; that there was no such finding; and that, therefore, there was no compliance with the express requirements of the statute. For these reasons, the Court granted plaintiffs’ motion. For authorities the Court relied upon Golabek v. Regional Manpower Administration, 329 F.Supp. 892, 895 (E.D.Pa.1971), and two unreported cases, Farino, et al. v. Secretary of Labor, et al., and Bitang, et al. v. Regional Manpower Administration, both from the Northern District of Illinois, Eastern Division, Doc.Nos.71-C-2495 and 72-C-1099, respectively.

This court is now called upon to reconcile two praiseworthy Congressional legislative objectives: (1) to admit and absorb into our citizenry skilled workers from other lands who would make a contribution to our society, and (2) to protect our own workers by excluding aliens whose entry might deprive our citizens of comparable jobs. The requirements for admission have been clearly stated in 8 U.S.C. § 1182(a)(14). The alien shall be ineligible to receive a visa and shall be excluded unless the Secretary certifies that there are not sufficient workers in this country who are “able, willing, qualified, and available” at the place where the alien is destined to perform his labor.

The problem is easily stated; not so easily resolved. The Secretary argues in effect: How can I issue a certificate when the statistics show that there are hundreds of electrical engineers available with degrees ranging from B.S. to Ph.D.? Digilab answers that Ferla’s position is unique; that it has examined resumes of many applicants and found them not qualified and as lacking the background required by Digilab.

Quite apart from labor statistics, the Secretary claims that he has the right to judge the good faith of the employer, the necessary qualifications for the job, and the mobility of engineers as a class. But just as the Secretary quite correctly argues that he should not be put in the position of running an employment office and have to recruit workers for various industries, so also, he should not have the privilege of determining the qualifications of any particular applicant for the job to be filled. Nor without proof, should he have the right to attack the good faith of an employer’s personnel procedures.

In Bitang, et al., supra, the district judge found that the Secretary of Labor had. “merely adopted the conclusory statement of the ISES that these plaintiffs’ professions were listed as “surplus,” and that his duty had not been fulfilled “through unexamined acquiescence in a state agency’s ultimate conclusions.” The judge remanded the action to the defendant [Regional Manpower Administrator of the United States Department of Labor] “for the making of further determinations” with respect to 8 U.S.C. § 1182(a)(14).

Similar relief would seem appropriate here. The detailed enumeration of their job requirements and Fer-la’s qualifications to meet them (letter of January 13, 1972) are not adequately answered by the conclusory statement that some 200 electrical engineers are listed in a Registry maintained in Sacramento, California. “Electrical engineers” in this age of intense specialization is far too generic a term in determining whether any of them are qualified in the particular field required by Digilab. This was the conclusion of the district judge in his first opinion, namely, that this fact “does not in this court’s eyes establish a necessary record of sufficient workers in the United States who are ‘qualified,’ ‘available,’ ‘able’ and ‘willing.’ ” Significance may also be attributed to the failure of the defendants, after learning of Digilab’s specific requirements and Ferla’s qualifications to meet them, to submit further proof of the availability of engineers in such a restricted category.

However, the Secretary’s discretion in this field entrusted to him by Congress is not lightly to be disregarded. On the other hand, this discretion should not be exercised on the mere conclusory (possibly irrelevant) statements given here.

Therefore, this action is remanded to the district court for a direction to defendants for a more specific factual basis for their decision.

      . 8 U.S.C. § 1182(a) (14) provides :
      Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.

      . 1. Our needs are highly specific and there are very few engineers who have the necessary training and experience.
      As we have indicated in our applications, the job includes both design and test work on scientific equipment. The signals used cover the entire EM spectrum from audio to radio to optical frequencies. The applications of the equipment to be designed include IR spectroscopy, NMR and NQR spectroscopy, biomedical glaucoma detection, etc. The signal analysis is both analog and digital and requires both analog and digital experience.
      The engineer we are looking for should know Fourier analysis, Laplace transform, RF signal detection, Bolean algebra and digital design, computer programs, digital systems, filtering, Z-transforms and circuit design.
      His work will include the design and test of nuclear magnetic resonance and nuclear quadrupole resonance equipment, RF detection systems, digital systems, optical instrumentation. In addition to design and test, analysis of biomedical equipment is required, as is field service when necessary on the above equipment.
      Paragraphs 2 through 7 of the resubmitted application for review are summarized as follows:
      The application also included data concerning the academic background of Mr. Feria; titles of academic articles; unsuccessful efforts to advertise the position and evaluation .of some 75 responses from seven states; the difficulty of at least one other company in filling a specific engineering slot; and the key relationship of Feria to governmentally sensitive work of Digilab’s parent corporation.

      . Subsequent to the decision by the District Court in this case and the argument of this appeal, the Court of Appeals for the Seventh Circuit decided (December 19, 1973) the appeal in the Farino, et al. case (No. 71-C-2495). After holding that the case was reviewable by the Court of Appeals and that plaintiffs therein had standing to sue, the Court turned to the procedural aspects created by the somewhat conflicting facts and asked itself whether the issue should be tried “de novo in the district court, or whether the matter should have been remanded to the agency for further proceedings.” Secretary of Labor of the United States et al. v. Farino and Hoe Kow Cantonese Restaurant, Seventh Circuit, 490 F.2d 885. In deciding which judicial policy to follow, the Court concluded “that in alien employment certification proceedings, remand to the agency is the better practice.” In the event that defendants-appellants are unable to produce proof sufficient to satisfy the requirements of 8 U.S.C. § 1182(a) (14), the District Court may issue such judgment as may be warranted under the circumstances.
      Bitang, et al. v. Regional Manpower Administration, is now reported in 351 F.Supp. 1342.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ronald BARBER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Frank DINSIO, Defendant-Appellant.
    Nos. 73-2547, 73-2872, 73-2575 and 73-2873.
    United States Court of Appeals, Ninth Circuit.
    April 17, 1974.

      Jack M. Schulman (argued), Schul-man & Schulman, Cleveland, Ohio, Victor Sherman, Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for appellant Barber.
    Victor Sherman (argued), Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for appellant Dinsio.
    Robert C. Bonner, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Los Angeles, Cal., for the United States.
    Before DUNIWAY, CARTER and WRIGHT, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Ronald Barber and James Dinsio appeal from convictions for conspiracy to burglarize a bank and to receive property stolen therefrom [18 U.S.C. §§ 371, 2113] and for stealing property exceeding $100 in value from a bank [18 U.S. C. § 2113(b)]. We affirm.

These appellants and five co-conspirators were indicted ten months after the burglary of the United California Bank in Laguna Niguel, California. The convictions of the co-conspirators, Mulligan, Christopher and Amil Dinsio (a brother of appellant herein), were affirmed by this court in United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973). Those defendants were convicted also of entering the bank, a charge of which the appellants herein were found not guilty by a jury verdict.

On a weekend in March 1972, the bank vault was entered after a hole had been blasted through the roof of the building. The bank’s alarm systems had apparently been cut and the burglary was not discovered until the following Monday morning. More than 500 safety deposit boxes had been forced open and the loss was eventually estimated to exceed $2,000,000, much of it in gold coins, some of them quite rare. Some of the loot and burglary tools were later discovered in Ohio at the residence of Amil Dinsio, United States v. Mulligan, supra, at 735.

Shortly before the burglary, the appellant Ronald Barber lived in an apartment in South Gate, California. The other conspirators, including James and Amil Dinsio, lived in Ohio but had made numerous trips by air to southern California and, in the month before the burglary, rented motel space there. James Dinsio made a down payment on a ski boat three weeks before the bank burglary and took delivery of it on the weekend of the burglary, paying $4,200 in cash. The boat was delivered to the residence of Barber in South Gate, and was later towed to Ohio by Ronald Barber.

1. The motion to suppress.

Five searches were made, including one of Ronald Barber’s apartment in South Gate in June 1972. The warrant for that search described several rare coins and other collector type coins, believed to be the fruits of the bank burglary. The government agents also found and seized a walkie-talkie and a shortwave radio. Before trial, the appellants moved to suppress the radios on the ground that the search warrant was not based on probable cause. On the first day of trial, they moved again to suppress, this time claiming that the search preceded the issuance of the warrant. Both motions were denied and those grounds have been abandoned on appeal.

When the radios were introduced, appellants objected, contending for the first time that the radios were beyond the scope of the warrant. It is this ground for suppression that appellants now urge on appeal.

Appellants contend that the radios were found after the coins were discovered and were the fruits of an overbroad search, not being listed in the warrant. Only after the FBI agents testified during the trial, say the appellants, did it become apparent that the radios were seized after the coins were found. The argument is that the defendants were unaware of facts to support their motion until they objected during the trial and that their motion was, therefore, timely.

Appellants’ explanation of their failure to move to suppress on this ground before trial is unconvincing. They had known before trial that the warrant did not describe the radios, although they may not have known whether the “plain view” doctrine might have applied. See Quigg v. Estelle, 492 F.2d 343 (9th Cir. 1974). This should have been explored during the pre-trial motion to suppress. The fact that the radios were not named in the warrant was sufficient notice that there was likely to be an issue of the sort now raised. See United States v. Blackwood, 456 F.2d 526, 529 (2d Cir. 1972), Small v. United States, 396 F.2d 764, 765 (5th Cir. 1968).

The evidence at trial indicates that the search for coins had not been completed when the radios were discovered. We are persuaded by the logic of Quigg v. Estelle, supra, where we said:

In the instant case, the police happened on the cellophane package of pills and gun box inadvertently while in search of items specifically listed in the warrant. Having established a nexus between the item to be seized and the criminal behavior, they could lawfully seize these items. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Quigg v. Estelle, 492 F.2d at 345.

The district court did not err in denying the motion to suppress the radios.

2. Adequacy of the jury instruction concerning “aiding and abetting.”

The district court instructed the jury:

In a case where two or more persons are charged with the commission of a crime, the guilt of any defendant may be established without proof that he personally did every act constituting the offense charged.
Whoever commits an offense against the laws of the United States, or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal. Whoever willfully causes an act to be done which, if directly performed by himself or another, would be an offense against the United States, is punishable as a principal.
In other words, every person who willfully participates in the commission of a crime may be found guilty of that offense.

Shortly thereafter, the jury was instructed that

“ [w] illfully” means an act or failure to act was done voluntarily with full knowledge of the consequences and a deliberate volition of the mind to accomplish the act prohibited by the law or to fail to do an act required by the law.

Appellants contend that the court should further have instructed the jury that the defendants were not “aiders and abettors” if they were mere “knowing spectators.” Moore v. United States, 356 F.2d 39 (5th Cir. 1966). But the instruction that the defendants must have been “willful participants” reasonably negated any impression the jury might have had that a “knowing spectator” was an “aider and abettor.” See Loux v. United States, 389 F.2d 911, 921 (9th Cir. 1968).

3. The testimony of Karen Tipps.

Miss Tipps testified that she attempted to call Barber by telephone for a week before the burglary and finally reached him on the Monday night after it was committed. On the telephone, he told her it was none of her business where he had been. There followed these questions and answers :

Q. Did he indicate to you in any way who he had been with ?
A. Yes, he indicated that he had been with his uncle.
Q. Did he, if you recall, indicate this uncle by any name ?
A. No, he did not.
Q. Now, did he indicate to you, do you recall, where he and his uncle had been?
A. Other than out of town, no.
Q. Did he indicate to you, if you recall, during the course of this conversation, where his uncle was from ? If you recall.
A. I cannot recall whether he told me or I assumed that it was his uncle from Ohio.

Miss Tipps testified to other conversations with Barber, in one of which he said he was going to Ohio, “driving back a boat for his uncle.” The uncle’s name was not indicated and the record indicates that Barber had at least three uncles in or from Ohio, all of the surname of Dinsio.

The statements attributed to Barber did not directly inculpate James Dinsio. Appellant, Dinsio contends that this hearsay testimony about statements made by his co-defendant was inadmissible under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

But, our view of the record leads us to conclude that Barber’s statements that he was “driving a boat for his uncle” and that he had spent a weekend with his “uncle from Ohio” were insufficiently incriminating of James Dinsio to require reversal. In light of other evidence of guilt, which was overwhelming, this testimony could have had but slight effect on the jury. In the circumstances of this case, any technical violation of the rule of Bruton was harmless beyond a reasonable doubt. Courtney v. United States, 486 F.2d 1108, 1111 (9th Cir. 1973).

4. The introduction of the coins as evidence.

Appellants argue that it was error for the district court to admit coins identified as being of the same date, type, and condition as coins stolen from the bank. The coins were found either in a defendant’s possession or in the possession of a person with whom a defendant may have done business. Appellants argue that since the coins were not positively identified as having been stolen from the bank, they were inadmissible.

The argument misses the point. It is not the law that evidence is admissible only if it positively proves the fact in support of which it is offered. It is sufficient that the evidence tends to support that fact. The fact that defendants were connected with coins identical to those stolen from the bank tends to support the conclusion that defendants were connected with the burglary. While this may be far from conclusive evidence, it has some probative value. Appellants’ objection goes only to the weight of the evidence, not its admissibility.

We have carefully considered appellants’ other assignments of error and find them to be without merit.

Affirmed.


author: KNOCH, Senior Circuit Judge. SWYGERT, Chief Judge

text:
    JOHN MORRELL & COMPANY, Plaintiff-Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Defendant-Appellant.
    No. 72-2022.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 25, 1973.
    Decided March 13, 1974.
    Rehearing Denied April 24, 1974.
    Bruce C. Spitzer, Chicago, Ill., for defendant-appellant.
    Marvin H. Ruttenberg, Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, ENOCH, Senior Circuit Judge and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   KNOCH, Senior Circuit Judge.

Defendant-Appellant, Chicago, Rock Island and Pacific Railroad Company, has appealed from grant of motion for summary judgment in favor of plaintiff-appellee, John Morrell & Company, based on the pleadings and stipulated facts.

Plaintiff shipped a consignment of fresh pork bellies under a Uniform Bill of Lading to Armour and Company in South San Francisco, California, on September 9, 1967. Defendant transported this shipment from Estherville, Iowa, to Santa Rosa, New Mexico, where it was interchanged with Southern Pacific Railroad Company. When the shipment arrived it was refused by Armour and Company because it was in damaged condition.

Plaintiff filed its claim on September 28, 1967, with the Southern Pacific Railroad Company. This action was filed on September 13, 1971. The only issue before the District Court was whether the suit was barred by the Interstate Commerce Act, Title 49 U.S.C.A. § 20(11) and § 2(b) of the Uniform Bill of Lading Contract which provides that suit may be instituted against the carrier only within two years and one day from the day when notice in writing has been given to the claimant that the carrier has disallowed the claim.

Defendant contends that this action was untimely filed because the letter of February 19, 1968, from Southern Pacific’s General Freight Claim Agent advised plaintiff’s Claim Manager that:

The loading method used was the sole cause of the inadequate refrigeration of this load and the resulting deterioration and loss. Inasmuch as loading was done by the shipper, no liability for improper loading rests with the carriers.

In the circumstances, have no option but to hereby disallow the claim. Further correspondence ensued wherein the claimant referred to deviations from normal delivery time and the carrier requested additional information on receipt of which “further consideration” was promised. Ultimately the carrier conceded that the loading was not, as stated in the February 19, 1968, letter, the sole cause of damage, but that some part of the damage was due to carrier’s delay in delivery. In response to plaintiff’s letter of October 8, 1968, asking:

In the event your position is to disallow this claim, we would appreciate a phone call from you in the next few days.

Southern Pacific wrote on December 6, 1968:

While it is evident that the primary cause of the condition noted at destination was the failure to load the meat in such a manner as to permit proper refrigeration during transit, we must agree that deterioration would progress each day under load. As indicated above, this shipment should have been delivered September 15, or six days after forwarded, and as a result of carrier delay, actual delivery was not offered until September 19, the tenth day. Based upon this, Vio’s of the total loss might reasonably be considered as resulting from carrier delay. This, of course, does not consider the owner’s failure to minimize the loss; however, in an effort to resolve all doubt in your favor, and dispose of this unfortunate matter on as equitable a basis as possible, we are agreeable to a settlement in the amount of $5,649.12, based upon the above formula. Your authority to so amend will be appreciated, and will enable us to arrange for issuance of a voucher.

In the interim there were letters from the carrier apologizing for the delay in reply and asking claimant’s kind indulgence, which would support the District Judge’s view that carrier did not regard the claim as having been unequivocally disallowed. Although claimant had asked on October 8, 1968, to be advised within a few days by telephone if carrier’s position was to disallow, the letter of December 6, 1968, in answer to that query made no reference to any purported disallowance of February 19, 1968.

On September 26, 1969, after an oral offer of $7,000 was rejected by the claimant, the carrier wrote:

[W]e have no option but to affirm our offer of $5,649.12, disallowing the remainder.

That letter referred to telephone calls and to prior letters of May 10 and December 6, 1968, which conceded partial liability but made no reference to the purported earlier disallowance of February 19, 1968.

The District Judge interpreted the wording in the letter of February 19, 1968, “in the circumstances”, to mean that as the loading by the shipper was the sole cause of damage, no carrier’s liability existed and as these “circumstances” were not in fact true and as the subsequent correspondence showed that the parties did not consider the February 19, 1968, letter a final and unequivocal but only a qualified disallowance, the Trial Judge held that the limitations period did not begin to run until such unequivocal disallowance was given to the claimant, and that the suit was therefore timely filed.

The District Judge interpreted the letters as clearly keeping the door open for further negotiations and not as showing a disallowance which was either reopened or later waived, which would not be permissible to stop the running of the statute under the Act.

Defendant argues that the District Judge imposed a higher standard than required by the Uniform Bill of Lading Contract which calls merely for notice to the claimant that the carrier has disallowed the claim to begin the running of the period and that the claimant’s response that it was unbelieveable that Southern Pacific was admitting no liability and wanted to disallow the claim indicated that the February 19, 1968, letter was understood as a disallowance without reference to the reasons for such disallowance. Defendant cites a number of cases with which the plaintiff has no quarrel, in which informal language has been held to be sufficient, including Cohen v. Texas and New Orleans, R. Co., 1940, 303 Ill.App. 606, 614, 25 N.E.2d 562, 565, where there was also a question as to when the claim was filed, where the Court said that the reasons which impelled the carrier to disallow were immaterial.

Whether the disallowance was proper has been held irrelevant, the material question being whether the notice made it clear that the claim as submitted would not be honored. Rouw v. Texas & N. O. R. Co., 1953, Tex.Civ.App., 260 S. W.2d 130, 132. The District Judge agreed with defendant’s authorities that once disallowance has been made, subsequent correspondence does not halt the running of the limitations period. L. M. Kirkpatrick Co. v. I. C. R. Co., 1940, 190 Miss. 157, 195 So. 692, 694; Holford v. Louisville & N. R. Co., W.D.Tenn., 1967, 266 F.Supp. 408, 409. However, he agreed with the plaintiff’s argument that the carrier itself did not consider the February 19, 1968, letter a disallowance because, as indicated in the whole series of communications by telephone and letter, no reference was made to it until September 14, 1970, when the carrier wrote that the claim was time-barred. Plaintiff points to the language used in the cases cited by defendant which refer to “clear”, “definite”, and “unequivocal” denials and invites our attention to Robinson v. Trustees of N. Y., N. H. & H. R. Co., 1945, 318 Mass. 121, 60 N.E.2d 593, 598, where the issue involved was which of two letters started the period running. The Court there held that the first letter did not constitute a final declination of the claim but left the door open for further consideration. In reaching that decision, the Court relied in part on the continuing correspondence between the parties. To the same effect is Chappell v. New York and O. W. Ry. Co., 1936, 248 App.Div. 804, 289 N.Y.S. 52, 53.

In carrier’s letter of February 3, 1970, in response to claimant’s offer of January 28, 1970, to reduce the claim by $750, carrier affirms the prior oral offer of $7,000 and promises prompt issue of voucher if claimant will authorize amendment of the claim. No reference is made to the time limitation as about to elapse in a few days. Only on September 14, 1970, was this point raised in answer to a counter-demand of August 31, 1970.

Defendant would have us consider the letter of February 19, 1968, by itself, without regard to the subsequent correspondence, as a clear denial stating sur-plusage in the form of reasons which may have been inapt, but which were nevertheless irrelevant. We do not think we may so view this letter which, in effect, merely states that the carrier has no option but to disallow where it has no liability. There is a lack of clear finality which requires resort to the subsequent correspondence for clarification. The District Judge’s characterization of the letter as a “qualified” disal-lowance leaving the way open for negotiation was reasonable.

Our own study of the record here leaves us with the conviction that the District Court’s determination in this cause must be affirmed.

SWYGERT, Chief Judge

(dissenting).

The majority holds that the railroad’s letter of disallowance dated February 19, 1968 lacks “clear finality” necessitating “resort to . subsequent correspondence for clarification.” In that letter the railroad notified the plaintiff: “In the circumstances, have no option but to hereby disallow the claim.” The majority finds that it is reasonable to characterize “the letter as a ‘qualified’ disallowance leaving the way open for negotiation.”

I cannot agree with the majority’s characterization of the letter as lacking “clear finality.” But, even accepting the majority’s finding that the letter amounted to a “qualified” disallowance, I would hold that such a disallowance is sufficient to meet the requirements of the statute. The pertinent portion of section 2(b) of the Uniform Bill of Lading Contract provides:

[S]uits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable and such claims will not be paid.

The statute does not demand the degree of specificity that the majority reads into it. Indeed, there is no requirement that the notice of disallowance be utterly and completely unequivocal.

The majority recognizes the substantial authority which holds that negotiations subsequent to a disallowance do not toll the running of the limitations period. To blunt the impact of those decisions the majority characterizes the disallowance as “qualified” and not sufficient to meet the standard they impose, namely, an unequivocal disallowance. In so doing, the majority has created an unwieldly standard in this area of notices of disallowance. It is an amorphous standard that turns on distinctions of degree between a qualified and an unequivocal disallowance. Such distinctions will lead to arbitrary and inconsistent conduct and treatment with respect to the affairs of shippers and their customers. Moreover, the distinctions clearly run counter to the Interstate Commerce Act’s intent to eliminate any type of discriminatory and nonuniform treatment among carriers and their customers.

The plaintiff in a letter dated September 28, 1967 made its claim for damages. The railroad responded on February 19, 1968 stating that, “In the circumstances, have no option but to hereby disallow the claim.” The railroad’s response was sufficient to put the plaintiff on notice that its claim as tendered would not be met on first inquiry and, at best, all or part of plaintiff’s claim would be met only upon additional inquiry by the plaintiff. The railroad’s February 19 letter clearly was not a complete acceptance of the plaintiff’s demands. Consequently, the February 19 letter functioned, at least, as a triggering device for subsequent negotiations; negotiations which — to facilitate the statute’s purposes of encouraging the expeditious settlement of disputes and avoiding stale claims — should have been completed within two years and a day. I would hold that the February 19 letter served as an objective benchmark by which to measure the timeliness of plaintiff’s suit. As such it provided a much more suitable benchmark to determine if there has been adequate notice of disallowance than an endeavor that would venture into the realm of subjective intentions of the parties seeking to discern if the disallowance was total and unequivocal or partial and tentative.

      . Atlantic Coast Line R. Co. v. Wauchula Truck Growers Ass’n., 1928, 95 Fla. 392, 118 So. 52, 53.

      . Decker & Sons v. Director General, 1919, 55 I.C.C. 453, 460.

      . Holford v. Louisville & N.R. Co., supra.


author:
ALDISERT, Circuit Judge. SEITZ, Chief Judge
      HASTIE, Circuit Judge

text:
    UNITED STATES of America ex rel. Lonnie DAVIS, E-5076 v. Robert L. JOHNSON, Superintendent, and the District Attorney of Philadelphia County, Appellant.
    No. 73-1545.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 18, 1974.
    Decided March 20, 1974.

      John J. Connors, Jr., Emas, Cohen & Connors, Philadelphia, Pa., for appellee.
    Judith Dean, Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., for appellant.
    Before SEITZ, Chief Judge, and HASTIE and ALDISERT, Circuit Judges.
   ALDISERT, Circuit Judge.

This appeal by the Commonwealth of Pennsylvania requires us to decide whether late appointment of counsel in a state criminal proceeding in which appellee pleaded guilty on the second day of trial deprived him of his Sixth Amendment right of counsel. Magistrate Naythons reviewed the trial transcript and state post-conviction proceedings, including the state evidentiary hearing. The district court adopted the report of the magistrate and granted federal habeas corpus relief. No federal evidentiary hearing was held.

These proceedings relate to a plea of guilty to three indictments of aggravated robbery entered by Lonnie Davis in the Criminal Court of Philadelphia County, Pennsylvania, on December 22, 1954. Pertinent to our consideration are Bills of Indictment No. 1033, covering a robbery of an American food store (ACME) on West Hortter Street on October 23, 1954; No. 1032, a robbery of a similar store on North Front Street on October 11, 1954; and Bill No. 1038, a robbery of a similar store on West Oak Lane on September 17, 1954. Because we are not reviewing factual determinations based on oral testimony at a federal habeas hearing, we are not restricted by the confines of the clearly erroneous rule as to the historical or narrative facts underlying the adjudicative findings. United States ex rel. Binion v. O’Brien, 273 F.2d 495, 497 (3d Cir. 1959), cert. denied, 363 U.S. 812, 80 S. Ct. 1249, 4 L.Ed.2d 1154 (1960). We are thus free to evaluate the records from the standpoint of both historical and adjudicative facts. On ultimate constitutional facts the Supreme Court has placed a heavy duty upon the reviewing court. For example, on the question of the voluntariness of a confession, the reviewing court has the duty to examine the entire record and make an independent determination of the ultimate issue of voluntariness. This duty exists whether the court is reviewing district court denial of habeas corpus relief without an evidentiary hearing in reliance on a state court factual determination, Davis v. North Carolina, 384 U. S. 737, 741, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); or reviewing district court denial of habeas corpus relief after an evidentiary hearing. Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969). We perceive no logical reason why the same responsibility does not attach in reviewing a Sixth Amendment question of effectiveness of counsel as in a Fifth Amendment voluntariness question.

Davis’ case came on for trial on December 21, 1954, in a consolidated action with three other defendants, Parris, McCray and Ricks. His counsel, John F. Hassett, a member of the Philadelphia Public Defender'staff, requested a continuance: “Counsel have not had sufficient time and we have not interviewed the defendants and have not had time to prepare a defense. The defendants tell us at this time that they are not guilty on all charges.” The Commonwealth opposed the oral motion because the multiple cases had been postponed previously, and it was represented that a Commonwealth witness was very ill. It succeeded in its opposition to the motion for a continuance, and Davis stood trial on the multiple indictments emanating from the 1954 robberies. Police detective Harry P. McCann testified that Davis “admitted participating in the [October 23, 1954] holdup. . . and that Davis “told us that he had thrown a gun on Lincoln Drive. Officers Kelly and McPeak went with the defendant Davis to Lincoln Drive . whereupon Davis showed him where he threw the gun. . . . ” (Appendix 41a.) Both a cashier and a clerk for the Hortter Street store identified Davis as a participant in the October 23, 1954, holdup. Later a statement signed by Davis was read into evidence in which Davis gave graphic details how he participated in two of the three hold ups.

Co-defendant Clifford Ricks, shot by the police during the Hortter Street robbery and diagnosed as a cancer victim upon being hospitalized for the gun shot wound, pleaded guilty and testified that Davis participated with him in all three robberies. Describing Davis’ activity at the West Hortter robbery, he said: “Me and McCray we went and got the manager of the store and I went in and Davis went to hold some people in the car. When he opened the safe I heard some one at the door.” (Appendix at 33a.) He testified that Davis was one of five participating in the Front Street robbery, stating that Davis entered the store with Ricks, Perry and McCray. As to the West Oak Lane robbery, Ricks testified Davis participated in the hold up.

Davis took the stand in his own behalf on the second day of trial. He denied participation in any of the robberies and contended that his signed confession was coerced by police beatings and induced by promises of immediate release. At the conclusion of his testimony, his defense rested. The McCray defense then opened with McCray entering a guilty plea to the West Hortter Street robbery and testifying that Davis participated in this robbery with him and the others.

At the conclusion of the Parris and McCray cases, Attorney Hassett requested and was granted a five minute recess to consult with his client. Upon resumption of the court proceedings, Davis entered a guilty plea to six indictments, all pertaining to the three hold ups.

What Davis admitted at sentencing is significant:

The Court [Judge John Morgan Davis, now a district judge but then a Pennsylvania Common Pleas Court Judge]: Davis, you started out with a very good name.
Defendant Davis: Your Honor, I don’t know what to say.
The Court: It would have been better for you to tell me the truth.
Defendant Davis: I understand you now. The onliest reason I didn’t come out with it different ones talked to me about it when I was up there. When I was up in jail they would tell me if I didn’t say what they want me to say —-I mean I got it there, and I said a lot and I am sorry I said it, but some boys they told me what to say, and the onliest reason that I accompanied Jack Ricks on these hold-ups is because that I was living away from home, your Honor, and I haven’s never been in the City before in my life before I came here.
The Court: And of course our Probation Department will be glad to help him to return to West Virginia and make it possible for him, after him having served the sentence that I am going to impose. If you told me the truth I might have been more lenient with you, because of your age, but regardless of that you were under oath and you were given one warning after another, but nevertheless you chose to tell me the story that no one could believe.
Mr. Filippone: And to say the police beat him.
The Court: You weren’t beaten at all, were you?
Defendant Davis: No sir, your Honor.
The Court: Of course I resent very much a story told against our Police Force when they are doing their duty, to cast aspersions as he did against a Police Force that very rarely receives commendation. Usually it is the other way. I just don’t think it is fair. On the basis of that I should send you to jail for an extra year just to make you tell the truth hereafter. However, his truth perhaps balances it up, and I am sure with the spirit of Christmas coming up from the court yard the officers would not like to see him sentenced extra time for that story. Am I right?

(Appendix at 186-189a.) (Emphasis supplied.)

Davis was sentenced to three consecutive sentences of 2% to 15 years; or a total of 7% to 45 years, effective from November 10, 1954. He was paroled on this sentence three times, and each time violated his parole. He was last returned to Superintendent Johnson’s custody as a parole violator on February 9, 1972.

Thus, we are confronted with a trial record in which Davis confessed to two of the three robberies, divulging specifics of the occurrences.3 Although at one point in the trial he contended that his confession was coerced by the police, on the same day he made this contention he recanted, admitting he was not beaten by the police. Ricks, one' of his co-defendants, described Davis’ role in all three robberies. McCray, another co-defendant, corroborated both Rick’s description of Davis’ participation in the Hortter Street robbery as well as the details furnished the police by Davis himself. And two witnesses identified Davis as a participant in one of the hold ups.

Applying the teachings of Moore v. United States, 432 F.2d 730 (3d Cir. 1970) (In banc), overruling United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3d Cir. 1968), the magistrate found “that relator has borne his burden of proving inadequate assistance of counsel. The Defender was not appointed until the day and moment of trial, which in itself raises a strong inference of prejudice. Further, relator has shown considerable actual prejudice from the late appointment. Particularly noteworthy in this regard was counsel’s inability to attempt to locate and interview witnesses relator told him to establish a defense of mistaken identity. Under all the facts of this case, we must conclude that relator was deprived of effective assistance of counsel.” The magistrate did not meet Davis’ second contention, that his guilty plea was not voluntarily and knowingly made.

Although the record does not disclose when the office of the Voluntary Defender entered an appearance for Davis and whether an investigation was conducted by that office, it is clear that Attorney Hassett did request a continuance on December 21, 1954, for the reason that counsel had insufficient time to prepare a defense. Nevertheless, we find it difficult to endorse the reasons ascribed by the magistrate in recommending a finding of constitutional deprivation of the defendant’s right to effective assistance of counsel.

Concededly prejudice may be inferred from a late appointment of counsel. But, in Moore v. United States, supra, we made it clear that it was incumbent upon the relator to demonstrate whether counsel’s performance was at the level of “normal competency.” While the ultimate question is not whether a defendant was prejudiced by counsel’s performance, prejudice is evi-dentiary on the issue. Ibid., 432 F.2d at 737. Thus, in United States ex rel. Taylor v. Rundle, 456 F.2d 1245, 1246 (3d Cir. 1972), we affirmed the district court’s determination that the late appointment precluded the obtaining of witnesses, allegedly present at the scene, who “may have materially aided defendant in presenting a defense of mistaken identity.” We held that defendant was deprived of the effective assistance of counsel because he had borne his burden of proving ineffective assistance of counsel. He proved that counsel was appointed on the day of trial and made a showing of considerable actual prejudice, not mere fanciful or speculative prejudice.

Assuming that a federal evidentiary hearing is not necessary under the circumstances, on federal habeas corpus the district judge, or the magistrate acting within the authority of the Magistrate’s Act, 28 U.S.C. § 631, is therefore obliged to examine carefully the record at the trial and the post-conviction evidentiary hearing to ascertain if the relator has met his burden of proving counsel’s failure to meet the level of normal competency. Here the magistrate observed: “No efforts were made to determine if the alleged alibi given by relator was credible or truthful.” We are at a loss to understand the significance of this observation. If alibi witnesses were dredged up, their testimony would have been at variance with that of the clerk and the cashier, with Davis’ ultimate unconditional plea of guilty to all three robberies and with his detailed confession as to two of the three robberies. When, seventeen years later, he decided to file a post-conviction petition he did not make reference to an alibi. The magistrate also observed: “There is no indication on the record that the Defender used the overnight recess to investigate the circumstances surrounding the confession given by relator in order to determine its legality.” We have heretofore observed that Davis confessed in open court that his original allegation of police beatings was a fabrication. Whether the Defender did or did not use the overnight recess in December, 1954 to investigate the circumstances simply cannot be gleaned from the record of the post-conviction hearing. The brute fact is that at the time of the post-conviction hearing the defense attorney was dead; it is most difficult to conjure how an account by the lawyer as to what he did in the December, 1954 overnight recess could possibly be forthcoming at the 1971 hearing since he had been dead for three months.

The magistrate further observed: “Nor is there anything in the record that indicates that the Defender made any attempt to locate, investigate, and interview relator’s witnesses in order to judge whether a defense of mistaken identification might be available.” There was no genuine mistaken identification issue as to Davis. He was placed at the scene of two robberies by his own words. He was placed in all three robberies by one co-defendant; at one robbery by two of his co-defendants;, and at one robbery by two employees of the Hortter Street store. This hardly presents a case of mistaken identification.

We have carefully examined the entire record, and even were we to assume that there was late appointment, we hold that relator has failed to prove that Mr. Has-sett’s performance was not at the level of normal competency. We also disagree with the magistrate’s conclusion that “relator has shown considerable actual prejudice. . . .”

But this does not end the matter. We hold that the district court erred in not following the procedure mandated by us in United States ex rel. Johnson v. Russell, 444 F.2d 1177 (3d Cir. 1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972). There the petitioner collaterally attacked the guilty plea entered by him after completion of the Commonwealth’s evidence on the grounds that he was inadequately represented by counsel at the time of entering the plea and that the plea was the product of inadequate representation by counsel during trial. Applying the teachings of the McMann trilogy we' held that in habeas corpus cases where the petitioner collaterally attacks the entry of his guilty plea on the advice of counsel, the threshold inquiry must be directed to the circumstances at the time of the entry of the plea. If we find that the prisoner has demonstrated that there was a “serious dereliction on the part of counsel sufficient to show that the plea was not, after all, a knowing and intelligent act,” then we must inquire further to determine whether there existed a prior constitutional deprivation. Ibid., at 1178-1179.

“[T]he Court has made it clear that the validity of a guilty plea is not to be gauged by an examination of the admissibility of a confession or statement which may have, in part, prompted the plea. Rather, the inquiry must be directed to whether the plea was itself entered with the requisite understanding of its nature and consequences. And in this respect, the examination resolves into a determination whether the defendant received the effective assistance of counsel in reaching the decision to plead guilty: ‘[H]e is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.’ 397 U.S. at 774, 90 S.Ct. at 1450. . . . ‘[WJhether a plea of guilty is unintelligent and therefore vulnerable * * * depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.’ Id. at 770-771, 90 S.Ct. at 1448-1449.” United States ex rel. Broaddus v. Rundle, 429 F.2d 791, 793-794 (3d Cir. 1970) (In banc).

Recently, in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), the Court reaffirmed the principle recognized in the McMann trilogy, cautioned against our taking too restrictive a view of these holdings and emphasized the requirement of the two-fold determination.

Applying this principle to this factual complex we must initially focus on the question of competency of Davis’ trial counsel at the time of entry of his plea. We have previously stated at length the evidence against Davis at the time he was advised to plead guilty. As to the historical facts which underlie the Davis’ representation claim, the state post-conviction fact finder, after an evi-dentiary hearing, found against Davis:

The defendant also contends that he was deprived of his constitutional right to representation by competent counsel. There is likewise no merit to that contention. In addition to the pre-trial statement, two of the defendant’s co-felons testified against him. Under these circumstances Mr. Has-sett’s representation was competent.

Davis was represented by counsel at the post-conviction hearing; he testified freely and without restraint. The assistant district attorney testified to the best of his recollection. The defense attorney was dead. We have examined the record and have concluded that a federal evidentiary hearing was not necessary. Davis was afforded a fair and adequate hearing in the state court and the decision of that court is fairly supported by our examination of the record as a whole. 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 313-319, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); United States ex rel. Shank v. Commonwealth of Pennsylvania, 461 F.2d 61, 62 (3d Cir. 1972), cert. denied, 409 U.S. 1110, 93 S. Ct. 917, 34 L.Ed.2d 691 (1973); United States ex rel. Lawson v. Cavell, 425 F.2d 1350, 1352 (3d Cir. 1970). We hold, therefore, that Davis did not demonstrate that the advice he received from counsel was not within the standards set forth in McMann.

The judgment of the district court will be reversed and the proceedings remanded.

SEITZ, Chief Judge

(concurring).

The Magistrate’s report, approved by the district court, found that defendant was denied the effective assistance of counsel and that it was therefore unnecessary to decide whether the guilty plea was knowingly and voluntarily made. I think this approach is analytically unsound because it implies that the two issues, effectivenesss of counsel and vol-untariness of plea, are of independent significance in a guilty plea context. In fact the only issue where a defendant has entered a guilty plea, is whether it was knowingly and voluntarily made. An attack on the effectiveness of counsel in such a context is relevant only insofar as it supports the claim that the plea was not voluntary; if a defendant is not properly advised of his rights and of the consequences of a guilty plea, the defendant’s plea is said not to be voluntary.

A reading of the Magistrate’s report shows that he dealt primarily if not exclusively with counsel’s activities before the plea was entered. He should have been concerned, at least initially, with the record at the date of the plea. Was Davis denied the effective assistance of competent counsel at the time of the plea? United States ex rel. Johnson v. Russell, 444 F.2d 1177, 1179 (3rd Cir. 1971). Davis did not enter his plea until after the Commonwealth’s case had been fully presented. Given counsel’s knowledge of the strength of the prosecution’s case, I agree with Judge Aldi-sert that there is no basis for saying that counsel’s action in recommending a guilty plea was below the standard of normal competency.

Because Davis was adequately served by counsel when he entered his guilty plea, ordinarily no futher inquiry into the adequacy of representation during the trial phase of the proceeding would be needed. Id. In this case, however, the argument that counsel’s performance was substandard can only be predicated on the claim that trial counsel’s performance prior to the entry of the plea was so inadequate that it fatally flawed the competency of the advice to plead guilty. Assuming the propriety of this argument, Id. at 1179, n. 11, I note that Judge Aldisert has analyzed the record on this score, and I am in accord with his conclusion that counsel's performance was not below the normal competency standard.

I concur in the reversal.

HASTIE, Circuit Judge

(dissenting).

The facts found by the district court, with adequate basis in the record, included the following:

“At the Commencement of the trial, the judge appointed a Voluntary Defender to represent the relator, who already with three others, was being tried for seven (7) aggravated robberies. The Voluntary Defender promptly asked for a continuance so that he could, for the first time, interview the relator, and prepare a defense. The request was denied. The relator testified as to his innocence, but after the introduction of a confession containing his signature, and after a co-defendant changed his plea to guilty and implicated relator, relator likewise changed his plea to guilty.
“. . . the defender had no knowledge of the case prior to the day of trial, nor did he have a file containing the results of any investigation. He first learned the identity of the witnesses against relator and their relationship to the case when relator was confronted with their testimony, with no opportunity to prepare any worthwhile cross-examination, or study of the relator’s confession. There is no indication on the record that the Defender used the overnight recess to investigate the circumstances surrounding the confession given by the relator in order to determine its legality. Nor is there anything in the record that indicates that the Defender made any attempt to locate, investigate, and interview relator’s witnesses in order to judge whether a defense of mistaken identification might be available. Even if defense counsel had been willing and free to devote the entire overnight recess to relator’s case, it would have no doubt been impossible as a practical matter to locate the witnesses in such a short time. The record reveals that the Defender consulted with relator for five minutes (page 154 trial transcript) in order to secure a change of plea to guilty with no inquiry by the Court as to whether the plea was voluntary, without duress, promises of lenience or whether in fact relator understood the facts to which he was pleading guilty . . . .”

We are bound by these factual findings and I believe the majority do not challenge them.

Thus, the record establishes that defense counsel, appointed minutes before trial began, had no opportunity whatever to prepare for trial on indictments that charged the accused with several separate robberies and put him in jeopardy of sentences that could have aggregated some sixty years and ultimately did aggregate forty-five years. In these circumstances, if the trial had proceeded to guilty verdicts it cannot rationally be doubted that the convictions would have been obtained through procedure that denied the accused due process of law. The critical question here is whether the pleas of guilty, as tendered and accepted during the second day of the trial, warrant a different result.

I agree with the majority that, under the rule of the McMann trilogy *****the validity of a plea of guilty depends upon whether it was made voluntarily and knowingly. But the opinions in those cases also make it clear that an essential ingredient of a “knowing” or “intelligent” plea is that the accused shall have been informed and counseled by a lawyer who'was in position to give him effective assistance. Where counsel has had no opportunity whatever to investigate the case and, on the basis of his inquiry, to determine whether the accused has a defense to any or all of the three unrelated felonies of which he stands accused, counsel simply cannot provide the knowledgeable assistance which must precede and inform a “knowing” and “intelligent” plea. This conclusion is impressively supported by our decision in United States ex rel. Taylor v. Rundle, 1972, 456 F.2d 1245, where counsel who advised a guilty plea had been appointed less than two hours before trial.

In the present case, Judge Packel of the Pennsylvania Superior Court, dissenting from the denial of state post conviction relief, perceptively observed that the “appointment of counsel under the facts of the instant case, coupled with the order to proceed immediately to trial, amounted in effect to window dressing to complete the conviction”. 1972, 222 Pa.Super. 430, 433, 295 A.2d 187, 189. This observation was as valid for the time when counsel advised his client to pelad guilty as it was during the aborted trial. For however damaging the evidence at trial may have been, counsel, who was totally unprepared, was in no position to evaluate it, to cross-examine witnesses or to present any possible defense. In these circumstances, listening to the government’s case against the accused put counsel in no better position, perhaps even worse position, to advise his client objectively concerning a plea than he had been at the beginning of the trial. Yet, the government’s evidence, which could not have led to a valid guilty verdict because counsel had not had opportunity to test it or to investigate any aspect of the case, is now relied upon as enabling counsel to give his client adequately informed advice to plead guilty. In my view, the record amply supported the district court’s conclusion that in fact and in legal contemplation the guilty plea was invalid because counsel could not give the accused informed assistance in the making of that decision.

Finally, the principal opinion leaves me with the disquieting impression that unwillingness to affirm the district court’s grant of habeas corpus is bottomed upon the strong probability that the accused did in fact participate in the robberies to which his guilty pleas related. But the harmless error doctrine has no proper place where the right to effective assistance of counsel is the matter in issue. Mr. Justice Stewart’s concurring opinion in Chapman v. California, 1966, 386 U.S. 18, 42, 43, 87 S.Ct. 824, 837, 17 L.Ed.2d 705 clearly states the applicable constitutional concept:

“When a defendant has been denied counsel at trial we have refused to consider claims that this constitutional error might have been harmless. ‘The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’ Glasser v. United States, 315 U.S. 60, 76 [62 S.Ct. 457, 86 L.Ed. 680]. That, indeed, was the whole point of Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] . . . .”

I would affirm the judgment of the district court.

      . The magistrate apparently accepted at face value a version of the events of that date given by Davis at his post-conviction hearing on November 24, 1971 — almost seventeen years later. Davis’ petition for post-conviction relief was filed August 27, 1971. His trial lawyer died September 13, 1971. Of., Rule 9 (Delayed or Successive Petitions), Rules Governing Habeas Corpus, Proposed Amendments to Rules of Practice and Procedure (January, 1973).

      . Q. Mr. Davis, go on in your own words and tell us just what happened ?
      A. All four of us, Ricks, Parrish [sic], McCray and myself left Parrish’s [sic] house about 5 o’clock — 5:00 P.M., Saturday, 10-23-54 — we went to this store, got there about 5:30, stayed there until they closed. The manager came out went to his car, he must have forgot something, went back inside. Then myself, McCray and Ricks got out of the car, went to the door, the manager was coming out, Ricks threw the shotgun on him, the manager turned around and went back inside, Ricks and McCray followed. I walked down to the car where the lady and the boy was sitting, I told them to be quiet and nobody would get hurt. A Chevrolet pulled up behind, a man got out walked to the ear and asked what was the matter. The woman didn’t say anything at the time, the man grabbed me with a gun in his hand, he told me to stand there and don’t move, he walks to the drugstore at the corner, when I saw him go in I ran back to our car, got in the- car and left with Parrish [sic]. ,
      Q. Who had the guns during this robbery, last night?
      A. Ricks had the shotgun, McCray went in behind Ricks with a pistol, I had the .32 cal.
      Q. Were you involved in any other robberies, in American Stores?
      A. Yes, myself, Parrish [sic], McCray, Ned, Ricks & Meat, about a month ago. All six of us met on Columbia Ave. Me and Ricks were together, we met the others we got in Parrish’s [sic] car went to an American Store in Oak Lane — identified as 816 W. Oak Lane Avenue — I was the look-out man. Ricks and Ned went inside, I’m not sure who else went in. I didn’t hear anything that was said in the store.
      (Appendix at 90-91a.)

      . The record discloses that Davis was first paroled in 1962; that he was found to be a parole violator in 1964 and was reconfined to prison until 1967; that he violated parole again in 1968 and was reconfined until 1969, when he was again paroled. When he was last returned on February 9, 1972, the Pennsylvania Board of Probation and Parole set his maximum date at January 20, 2005.
      In 1970 he was arrested and later convicted of aggravated robbery of a deaf mute. • A sentence of 7% to 15 years was imposed in February, 1972, for that offense, to commence at the expiration of the sentences for the 1954 offenses. This court has affirmed denial of habeas corpus relief on a claim emanating from the 1970 offense. United States ex rel. Davis v. Johnson, 491 F.2d 752 (3d Cir., 1974).

      . Other defendants either pleaded or were adjudicated guilty on these and other robbery charges during the consolidated trial.

      . The stale post-conviction hearing held seventeen years later acids little. The record is replete with self-serving declarations by Davis, a resurrection of hi's own discredited charge of police harassment concerning the confession: “I was held at the police station for eighteen days in a cell and constantly harassed by the police. . . . ” (Appendix at 198a.) The reality is that the Hortter robbery took place October 23, 1954. Davis was arrested at 5:30 am, October 24, 1954, and by 12:30 or 1:00 pm he had made an oral confession, and by 3:00 pm on that same date it was reduced to writing and signed by him.

      . Three Pennsylvania Superior Court judges dissenting in Commonwealth v. Davis, 222 Pa.Super. 430, 295 A.2d 187 (1972), relied on MatMs.

      . The magistrate stated :
      It is uncontradicted and clear that: prior to the moment the case was called for trial, the Voluntary Defender’s Office never interviewed the relator. No investigation whatsoever was undertaken. No efforts were made to determine if the alleged alibi given by relator was credible or truthful. As a result, the defender had no knowledge of the case prior to the day of trial, nor did he have a file containing the results of any investigation. He first learned the identity of the witnesses against relator and their relationship to the case when relator was confronted with their testimony, with no opportunity to prepare any worthwhile cross-examination, or study of the relator’s confession. There is no indication on the record that the Defender used the overnight recess to investigate the circumstances surrounding the confession given by relator in order to determine its legality. Nor is there anything in the record that indicates that the Defender made any attempt to locate, investigate, and interview relator’s witnesses in order to judge whether a defense of mistaken identification might be available. Even if defense counsel had been willing and free to devote the entire overnight recess to relator’s case, it would have no doubt been impossible as a practical matter to locate the witnesses in such a short time.

      . We find no justification for the magistrate’s statement “It is uncontradicted and clear that: prior to the moment the case was called for trial, the Voluntary Defender’s Office never interviewed the relator.” At the 1971 postconviction hearing Davis said: “I didn’t see a lawyer until the day of my trial in the Courtroom. I was appointed a Public Defender.” (Appendix at 197a.) (Emphasis supplied.) This is not to say that an investigator or case worker from the office of the Philadelphia Voluntary Defender’s Office did not interview Davis, did not investigate the facts, or prepare the case for trial. The record is silent. See Moore v. United States, supra, 432 F.2d at 732-737 for a discussion of the operations of the Defender Association of Philadelphia.

      . At Ms post-conviction hearing he testified that the only identification came from one witness who recognized his voice. When confronted with the fact that his co-defendant Ricks identified Davis “as a person who went into various places with him and robbed,” Davis incredibly responded that he did not recall Ricks had said that.

      . Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

      . [T]he United States Supreme Court has limited the scope of inquiry in cases like this where the defendant has entered a guilty plea in a state criminal trial. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). These cases hold that when a defendant pleads guilty upon the advice of competent counsel, he waives prior constitutional infirmities and “assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts.” McMann v. Richardson, supra, 397 U.S. at 774, 90 S. Ct. at 1450. See Parker v. North Carolina, supra, at 796, 90 S.Ct. 1458. Before we may examine the conduct of the trial before the entry of the plea, we must find “serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.” 397 U.S. at 774, 90 S.Ct. at 1450.
      444 F.2d at 1178. (Emphasis supplied.)

      . Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785.

      . McMann v. Richardson, supra, 397 U.S. at 770, 771, 90 S.Ct. 1441; Brady v. United States, supra, 397 U.S. at 748, n.6, 90 S.Ct. 1463.