author: McWILLIAMS, Circuit Judge.

text:
    BOARD OF DIRECTORS AND OFFICERS, FORBES FEDERAL CREDIT UNION, Charter No. 11258, Forbes Air Force Base, Topeka, Kansas, Petitioners, v. NATIONAL CREDIT UNION ADMINISTRATION, Respondent.
    No. 72-1351.
    United States Court of Appeals, Tenth Circuit.
    April 26, 1973.

      Gerald W. Hyland (Dale W. Bruce and Robert L. Davis, Davis, Bruce, Davis & Cather, Wichita, Kan., on the brief), for petitioners.
    Edwin E. Huddleson, III, Atty., Dept. of Justice (Harlington Wood, Jr., Asst. Atty. Gen., and Robert E. Kopp, Atty., Dept. of Justice, on the brief), for respondent.
    Before HILL, McWILLIAMS, and BARRETT, Circuit Judges.
   McWILLIAMS, Circuit Judge.

This is a dispute between the officers and directors of the Forbes Federal Credit Union of Topeka, Kansas, and the National Credit Union Administration over the meaning of a 1967 amendment to the charter of the Forbes Federal Credit Union. The amendment in question relates to the eligibility requirements for membership in the Forbes credit union.

The matter was first heard by a Hearing Examiner designated by the Administrator of the National Credit Union Administration to conduct a hearing. After an extended evidentiary hearing, the examiner made elaborate findings and conclusions, and filed a “Recommended Decision,” all of which was then adopted by the Administrator as his “Final Decision and Order.” The officers and directors of the Forbes Federal Credit Union thereafter filed a petition in this court seeking direct judicial review by us of the Administrator’s order, asking in connection therewith that we invalidate the order. 12 U.S.C. § 1786(i). Background facts will have to be developed if the narrow issue is to be seen in context.

A federal credit union is defined by statute as a “cooperative association organized * * * for the purpose of promoting thrift among its members and creating a source of credit for provident or productive purposes.” 12 U.S. C. § 1752(1). The initial Act of Congress permitting the formation of such credit unions occurred in 1984.

In 1956, Forbes Federal Credit Union, hereinafter referred to simply as Forbes, was organized under the Federal Credit Union Act and was granted a charter by the Bureau of Federal Credit Unions, the predecessor agency to the National Credit Union Administration. 12 U.S.C. §§ 1771-1790. By its terms this charter permitted Forbes to serve military personnel permanently assigned to the Forbes Air Force Base in Topeka, Kansas, and civilian personnel employed thereat.

In April 1967, Forbes was advised by the Bureau that it could apply for an amendment to section 5 of its charter which would permit it to extend its credit union services to a somewhat larger field of membership. Application for such charter amendment was made by Forbes, and the application therefor was approved by the Bureau on May 5, 1967. Section 5 of Forbes’ charter, as thus amended by the so-called 1967 amendment, reads as follows:

“The field of membership shall be limited to those having the following common bond: Civilian employees and military personnel of the Department of the Air Force who work at and are permanently assigned to the Forbes Air Force Base in Topeka, Kansas; members of the U. S. Armed Forces, active or retired, or their dependents or dependent survivors who are eligible by law or regulation to receive benefits or services from the above military installation; members of this credit union who are stationed at military bases overseas and retain their membership in this credit union; employees of this credit union; members of their immediate families; and organizations of such persons.” (Emphasis added.)

The emphasized portion in the foregoing constitutes the so-called 1967 charter amendment and the present controversy concerns the meaning of that particular language.

By way of additional background, this particular charter change came about as the result of a request from the Department of Defense to the Bureau that eligibility requirements be altered so as to permit membership in a local federal credit union by military personnel who were “geographically separated” from their parent organization and were receiving normal services such as, for example, commissary and exchange services, from the nearest military base providing such services. More particularly, in this regard the Department of Defense wrote as follows:

“•» * * in or¿er to correct this situation, [we] request your consideration of an amendment to BFCU regulations which would permit a member of the armed services, either active or retired or his legal survivors, to become a member of a credit union located on the military installation which provides other services to that member or survivor. * * *”

As a result of that request, the Bureau authorized amendments to the charters of several local federal credit unions of the same type granted Forbes. Inquiry was soon made to the Bureau as to whether such amendment permitted local credit unions to enroll as members any and all military personnel who were eligible to receive services at their particular military installation, regardless of whether they had actually received any benefits or services from the military base Where the particular credit union was located. In this regard, apparently all military personnel, wherever located geographically, are “eligible” to receive benefits and services from any military base, even though they may never do so. In response to these inquiries, the Bureau issued a memorandum to all of its regional representatives and examiners in June 1967, interpreting the 1967 Amendment as follows:

“The Bureau interprets the [1967 Amendment] as applying only to those persons who are so situated that they can and in fact do utilize the benefits or services provided by the named installation. This is necessary to assure that the person is a part of the military community of the installation.”

The foregoing “interpretation” of the so-called 1967 Amendment was generally announced to the federal credit union industry and in October 1967 the Bureau’s bulletin specifically advised all Department of Defense affiliated credit unions, including Forbes, of its interpretation in the following language:

“To avoid any misunderstanding as to who would be eligible for membership by the adoption of the amendment, the following interpretation should be used as a guide:
‘Those people who are so situated that they can and in fact do, make fairly regular use of the benefits and services provided by the named installation.’
“This is necessary to assure that the person is a part of the military community of the installation.”

In 1968, the Bureau amended the 1967 Amendment to the end that charter amendments approved thereafter read as follows:

“[M] embers of the U. S. Armed Forces, active or retired, or their dependents or dependent survivors who are eligible by law or regulations to receive and are receiving benefits or services from the above military installation.”

The italicized portion of the foregoing was added in 1968 to the wording of the 1967 Amendment, which addition was in line with the Bureau’s prior “interpretation” of the 1967 Amendment. However, prior to the 1968 change, many local federal credit unions, including Forbes, had their charters amended in language of the 1967 Amendment, which did not include the words “and are receiving.” And Forbes, at least, does not agree with the Bureau’s interpretation of the 1967 Amendment.

Forbes’ position, in a nutshell, is that the 1967 Amendment should be interpreted just as it reads, and that under the 1967 Amendment, Forbes is entitled to enroll as members any and all military personnel who are “eligible” to receive benefits and services from Forbes Air Force Base, regardless of whether the military personnel have ever in fact received any benefit or service at Forbes Air Force Base. Under such interpretation, as we understand it, Forbes could enroll as a member in its credit union military personnel located anywhere around the world, since all are “eligible” to receive benefits and services at Forbes Air Force Base, regardless of whether the individual sought to be enrolled has ever in fact received any benefit or service at Forbes Air Force Base. And, conversely, we assume that other credit unions with a similar charter amendment could invade Forbes Air Force Base and enroll military personnel attached to that installation.

These differing interpretations by Forbes and the Bureau of the former’s 1967 charter amendment were known and recognized by each of the parties, but apparently did not come to a head till May 1969. In April 1969, the president of Forbes advised the Bureau that in his view the 1967 Amendment authorized Forbes to enroll as members any person in the military service, notwithstanding the Bureau’s narrower interpretation. Despite a warning from the Bureau, Forbes, in May 1969, set up a so-called “branch office” at Sewart Air Force Base in Tennessee. More specifically, in May 1969 Forbes sent a representative to Sewart who conducted extensive business with military personnel on that base until March 1970, accepting, for example, some 1150 new members. There is some suggestion that Se-wart Air Force Base was at the time in the process of being deactivated. In any event, some of the newly enrolled members were eventually transferred to Forbes Air Force Base in Topeka. However, other newly enrolled members were never transferred to Forbes Air Force Base and in fact were eventually transferred to other military installations.

In November 1970, the National Credit Union Administration, that agency having succeeded by Act of Congress to the powers and duties of the old Bureau, formally requested Forbes to abide by its interpretation of the 1967 Amendment. Forbes refused, and as a result of such refusal the Administrator on July 13, 1971, issued a Notice of Charges to Forbes and its Board of Directors, charging them with improperly expanding its membership. The matter was then referred to a Hearing Examiner to determine if a cease and desist order should issue to compel Forbes to follow the Administration’s interpretation of the 1967 Amendment. As indicated, after hearing the Hearing Examiner made detailed findings and conclusions and recommended the issuance of such a cease and desist order. The ruling applied only prospectively, incidentally, and did not affect new members enrolled by Forbes up to that time. The recommended action of the Hearing Examiner was approved and adopted by the Administrator, whereupon Forbes initiated this action in this court, seeking a review of that order and asking that we invalidate it.

As indicated, it was Forbes’ position before the Hearing Examiner, as it is-here, that under a literal reading of the 1967 charter amendment it had the right to enroll as members in its credit union all military personnel “eligibile by law or regulations to receive benefits or services” from Forbes Air Force Base, whether they did so in fact or not. In line with this interpretation, Forbes denies that it was in anywise violating its charter in going to Sewart Air Base in Tennessee and enrolling military personnel at that installation, even though many such enrollees were not transferred to Forbes Air Force Base and never received any services or benefits from that base. In thus contending, Forbes argues that the words used in the 1967 charter amendment are clear, plain and unambiguous and should be given their normal, natural meaning. Forbes places considerable emphasis on the reasoning contained in landmark case of Dartmouth College v. Woodward, 17 U.S. 518, 4 L.Ed. 629 (1819), concerning the sanctity of a charter, and the fact that a charter, once granted, cannot thereafter be unilaterally changed.

It was the position of the Administration before the Hearing Examiner, as it is here, that the interpretation sought by Forbes of the 1967 charter amendment is at odds with the Federal Credit Union Act, the rules and regulations of the Administrator of the National Credit Union Administration, and the contemporaneous interpretation given both the statute and the charter amendment by the administrative agency charged with administering and enforcing the Act. As indicated, the Hearing Examiner agreed with the position of the National Credit Union Administration, as did the Administrator. We do too. Let us first examine further the Federal Credit Union Act itself.

Section 1753, 12 U.S.C., provides, in part, as follows:

“Federal Credit Union Organization—
“Any seven or more natural persons who desire to form a Federal credit union shall subscribe before some officer competent to administer oaths an organization certificate in duplicate which shall specifically state—
* * * * * *
“(2) the location of the proposed Federal credit union and the territory in which it will operate;
* * * * * *
“(5) the proposed field of membership, specified in detail.”

The requirement of subsection 2 that the organization certificate shall “specifically state * * * the territory in which it [the federal credit union] will operate” is deemed to be of some significance. It indicates to us that Congress intended that a federal credit unit would operate within a described geographical territory and not round-the-world.

Concerning membership in a federal credit union, 12 U.S.C. § 1759 provides as follows:

“Federal credit union membership shall consist of the incorporators and such other persons and incorporated and unincorporated organizations, to the extent permitted by rules and regulations prescribed by the Administrator, as may be elected to membership and as such shall each, subscribe to at least one share of its stock and pay the initial installment thereon and the entrance fee; except that Federal credit unioijTñeínbershrpfsKall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district. * * *"

From the foregoing statutory provision we learn that it was the intent of Congress that members in a particular federal credit union should have a “common bond” with each other. More about this “common bond” requirement later, but we do note here that the “common bond” requirement has been deemed something more than simply the bond of mutually serving in the military. Also, it is apparent that Congress empowered the Administrator of the National Credit Union Administration to promulgate rules and regulations regarding those eligible to become members of a local federal credit union.

Concerning the powers of the Administrator, 12 U.S.C. § 1766 provides, in part, as follows:

“(a) The Administrator may prescribe rules and regulations for the administration of this chapter (including, but not by way of limitation, the merger, consolidation, and dissolution of corporations organized under this chapter).
“(b)(1) The Administrator may suspend or revoke the charter of any Federal credit union, or place the same in involuntary liquidation and appoint a liquidating agent therefor, upon his finding that the organization is bankrupt or insolvent, or has violated any of the provisions of its charter, its bylaws, this chapter, or any regulations issued thereunder.”

Subsection (a) thus grants the Director, now the Administrator, the broad power to prescribe rules and regulations for the administration of the entire chapter and subsection (b) specifically grants him the power to suspend or revoke the charter of any federal credit union upon a finding that the local credit union has violated either the provisions of its own charter or bylaws, or has violated any provision of the chapter or any administrative regulation issued pursuant thereto.

Concerning the statutory requirement of a “common bond” referred to above, the Administrator under his statutory rule-making authority has long construed the “common bond” concept to restrict membership of credit unions located at military installations to persons who in fact receive at least some benefits and services from the installation where the credit union is itself located. As evidence of this, the following excerpt from an official publication of the Administration is pertinent:

“COMMON BOND
“The Bureau of Federal Credit Unions defines and explains common bond, as applied to Federal credit union chartering, as follows:
‘Common bond is that pre-existing condition which causes the members of a group to associate together, to know each other, to have common interests and purposes, and to be able and willing to work together/to accomplish group objectives. A group has a common bond when it is composed of people who have the same employer, or are otherwise associated through some common interest or enterprise, and are so situated in relation to each other as a consequence of that community of employment or association that they could be expected to operate effectively as a cooperative organization for credit union purposes.
‘A group, to qualify for a Federal credit union charter, should provide opportunities for the members to associate together, and, as a result of such association, to develop common loyalties and mutual interests. Furthermore, in an associational group, the members must receive substantial benefit from membership in the association. * * *’ ”

The Hearing Examiner advanced two alternative bases upon which he determined that the interpretation given the 1967 charter amendment by the Administration was the proper one, and that the interpretation argued for by Forbes was improper. One such ground was that the interpretation contended for by Forbes was at variance with Congressional intent as expressed in the Act itself, as well as being at odds with the various rules and regulations of the Administration. He reasoned, in effect, then that the charter amendment should be interpreted in a manner that would square with the applicable statutes and rules and regulations. We agree with this conclusion.

As indicated earlier, 12 U.S.C. § 1786(i) provides for judicial review of an order of the Administrator of the Federal Credit Union Administration. And that statute states that our review shall be as provided in the Administrative Procedure Act. Section 706, 5 U.S. C., spells out the scope of our review of the order of the Administrator. Illustrative of the fact that in the instant case our review of the decision of the Administrator is not wide-ranging in scope, we note, for example, that administrative action has been held to be conclusive on review unless such action is not in accordance with law or is unsupported by competent, material and substantial evidence, or is arbitrary or capricious. Reconstruction Finance Corp. v. Lightsey, 185 F.2d 167 (4th Cir. 1950). With this in mind, then, let us examine the principles which in our view govern this controversy.

In the first place, no administrative body may contract with a corporate body which it regulates in a manner contrary to the statute which it is charged with administering, nor in a manner which would not give full effect to the intent of Congress. Peoples Bank v. Eccles, 82 U.S.App.D.C. 126, 161 F.2d 636 (1947), rev’d on other grounds, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784 (1947). In determining the intent of Congress, administrative interpretation, practice and usage are accorded great weight by a reviewing court where a particular statute is susceptible of different reading. Lindberg v. Brenner, 130 U.S.App.D.C. 257, 399 F.2d 990 (1968); Garvey v. Freeman, 397 F.2d 600 (10th Cir. 1968); and H. B. Zachry Co. v. United States, 344 F.2d 352, 170 Ct.Cl. 115 (1965). So, it has been held that a court should not overturn an administrative interpretation of a statute which it is charged with administering unless it can be said that the interpretation is plainly erroneous. Jno. McCall Coal Co. v. United States, 374 F.2d 689 (4th Cir. 1967). Similarly, it has been stated that an administrative agency’s interpretation of its own regulations is to be accorded great deference and is controlling as long as it is one of several reasonable interpretations, and even though it may not appear quite as reasonable as some other. Roy Bryant Cattle Co. v. United States, 463 F.2d 418 (5th Cir. 1972). Finally, it is a well settled principle that where a contract is susceptible of two interpretations, preference will be given to the interpretation which does not violate the law. Great Northern Railway Co. v. Delmar Co., 283 U.S. 686, 51 S.Ct. 579, 75 L.Ed. 1349 (1931).

Application of the foregoing principles to the instant controversy leads us to conclude that the order of the Administrator approving and adopting the findings, conclusions and recommendation of the Hearing Examiner is proper and correct. To approve, in effect, the earlier action of Forbes in going from Kansas to Tennessee to enroll new members simply because they were technically eligible to receive benefits and services at Forbes Air Force Base, though in fact they did not, would mean that in the future Forbes in its efforts to increase its membership could create a branch office at virtually any military installation, wherever located. In our view, such would violate the statutory provision that a federal credit union shall serve a described territory and that its members shall have a “common bond,” one with the other, as that phrase has been consistently interpreted by the Administrator.

In sum, then, the order complained of is not plainly erroneous; and, on the contrary, in our view the Administrator has given the 1967 charter amendment a reasonable interpretation consonant with the Congressional mandate and the regulations promulgated pursuant thereto.

Order affirmed.


source: Caselaw Access Project

author: ALDISERT, Circuit Judge.

license: Public Domain

text:
    Father John J. O’MALLEY et al., Appellants, v. Joseph R. BRIERLEY, Superintendent of the State Correctional Institution at Pittsburgh, et al.
    No. 72-1056.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit. Rule 12(6) Feb. 2, 1973.
    Decided April 30, 1973.

      Harry F. Swanger, Leonard I. Sharon, James H. Logan, Paul D. Boas, Pittsburgh, Pa., Stanley A. Bass, NAACP Legal Defense Fund and Educational Fund, New York City, for appellants.
    Frederick N. Frank, Asst. Atty. Gen., John J. Kennedy, Jr., Asst. Atty. Gen., J. Shane Creamer, Atty. Gen., Harrisburg, Pa., for appellees.
    Roslyn M. Litman, Pittsburgh, Pa., for American Civil Liberties Union, Greater Pittsburgh Chapter, for amicus curiae.
    Before SEITZ, Chief Judge, ALDI-SERT, Circuit Judge, and FISHER, District Judge.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question presented on this appeal is the propriety of summary judgment in an action brought under the Civil Rights Act, 42 U.S.C. § 1983, by certain Catholic priests and prisoners, contending that their First Amendment rights were abridged when state prison officials withdrew from the priests previously granted privileges to conduct religious services and counseling within the prison. Ruling that plaintiffs’ complaint failed to set forth a claim upon which relief could be granted, the district court entered summary judgment for the defendants. We affirm the judgment as against the priest-plaintiffs, but reverse the judgment as against the prisoner-plaintiffs.

Father John O’Malley and Father Augustus Taylor, although not official prison chaplains, began to visit Western Penitentiary in 1969, and soon developed a close spiritual relationship with many inmates, both black and white. In November, 1969, Father Taylor conducted an Afro-American Mass in the prison chapel, the alleged purpose of which was to “relate the essentials of the Catholic Mass more significantly to the black experience.” Shortly after the celebration of this Mass both Father Taylor and Father O’Malley were denied further visitation privileges at the prison.

By affidavit, Joseph R. Brierley, Superintendent of Western Penitentiary, described the Mass:

The Afro-American Mass lacked any semblance of a religious service and was in fact a political rally.
It did not attract Catholic inmates but rather self-proclaimed Black Nationalists and Black Panthers. In fact less than two per cent of the inmate population, or ten prisoners are Negroes who profess Roman Catholicism.
Plaintiff Father Taylor began the Afro-American Mass by holding his clenched fist in the air. He said “I do not believe in a honky Christ.” He went on to say that he is a revolutionary. The entire theme of his address to those in attendance was black militancy. There was little reference at all to any religious matters, with the exception of the receiving of communion which was indiscriminately given to non-Catholie prisoners. Father Taylor’s speech was followed by inmates standing in the pulpit giving testimonials to Black Nationalism.

Responding by affidavit, Father Taylor insisted:

The Mass conducted at Western Penitentiary in November 1969 was presented in the traditional Catholic Mass structure. Extemporaneous prayers and prescribed prayers of rite were utilized, communion was offered and the essential liturgy was followed. I was assisted by Father Dennis Kinderman. Within this structure, I talked about Jesus and how he was related to them (Black Prisoners) The real message I was seeking to convey was that Jesus Christ and Christianity was identified with them and their condition Any reference to a Honky Christ was a call to examine exactly what Jesus Christ meant and to reject the White false values we are told to worship and which are embodied in the traditional White image of Christ. In saying this I was not suggesting a form of Black racism and or any interpretation that being pro-Black meant anti-White was incorrect. I suggested we were above that and that our consciousness of Blackness meant recognizing, discovering, enjoying, and living our Afro-American heritage. In this process we would discover that Black people and their collective mind are “together” just as Jesus Christ was “together” . I tried to conclude this theme by urging all those Black people in attendance to spread the peace, harmony, and togetherness which they had as a whole congregation throughout the prison among Black and White prisoners alike.

Several months - later, following negotiations with and intercession by the state attorney general, both priests were readmitted to very limited visitation privileges. Then, on September 20, 1971, shortly after the Attica, New York prison riot, the priests participated in what they described as a “peaceful and lawful demonstration . . . held outside the gates of the Western Penitentiary in support of prison reform, the elimination of racism in prison, and in sympathy for those persons slain at Attica State Penitentiary in New York.” Two days later, Fathers Taylor and O’Malley received a letter, dated September 20, 1971, from Superintendent Brierley, which stated in part:

In the past you have been denied permission to visit with members of our population for a number of reasons, many of which we have previously discussed. However, because of your persistence to be permitted to again visit here and your voiced good intentions to be of service, as well as a request in your behalf by my superiors, I relented and gave the approval for your visiting members of our prison population. However, after witnessing your so very active part in the demonstration outside the institutional walls at noon today, I can readily see that it is your sole purpose to incite the prison population to riot and I am therefore forced to rescind the approval permitting you to enter the confines of this institution. .

Superintendent Brierley indicated that he based his actions upon the following observations and conclusions:

The speeches being made at the demonstration could be heard in the South Block of the institution. The inmates in that section of the institution soon told other inmates in other parts of the institution what was being said by the demonstrators.
The demonstrators charged the officials at Western Penitentiary with failing to communicate with the prisoners and with oppression of the prisoners. There was an outburst from the prisoners who could hear the demonstrators and the demonstrators answered the outburst.
At this point I took notice of the probable effect of this demonstration on the inmate population. Tension was already high in the prison because of the Attica State Prison incident which had preceded the demonstration by only a few days.
Because I feared the inmate population would be agitated by this demonstration, I had the inmates in the South Block moved to another part of the institution so they could not hear what the demonstrators were saying. At no time did I order the demonstrators to move. In fact, no prison official moved beyond the prison gate during the course of the demonstration.
I personally observed both plaintiff Father O'Malley and plaintiff Father Taylor taking part in this demonstration. It was my carefully considered opinion that because of their participation in a demonstration of this nature, it would be a serious security risk to readmit them as spiritual ad-visors inside the institution. There was no doubt in my mind that the purpose of this demonstration was to incite the prisoners to riot. Therefore I could not jeopardize the safety of the institution by permitting any of the participants in that demonstration inside the institution in the future.

Superintendent Brierley explained further that there has never been any interference with the practice of the Catholic faith by prisoners, and that there are two Catholic prison chaplains, one full-time and one part-time. These priests conduct services in the prison chapel every Sunday and on every Holy Day, and have daily access to visit and counsel all Catholic prisoners.

By affidavit, Father S. Richard Terza reported that he was assigned by the Bishop of the Diocese of Pittsburgh to the position of full-time Catholic chaplain at Western Penitentiary. Father Terza stated that he “had the fullest possible cooperation from [all prison officials] in all aspects of serving the Catholic inmates,” that he has “free access to all Catholic inmates who desired religious counsel, . . . and [a]t no time has the practice of the Catholic faith by inmates of the institution been interfered with by the officials of the institution, nor have these officials discriminated among Catholic prisoners on racial grounds.” Moreover, Father Terza observed that “[t]here is no tenet or article of the Roman Catholic faith which permits a member of the laity to dictate the selection of his parish priest.”

Because prison authorities withdrew their visitation privileges, the priests asserted a deprivation of First Amendment rights and sought injunctive and declaratory relief against the ban. The priests requested money damages as well, compensatory and punitive, “in an amount to be determined by a jury for the humiliation, public scorn and derision suffered by them.”

As a matter of preliminary importance, it is essential to note that the priests are suing in their own right. They seek personal injunctive relief and money damages for injuries allegedly sustained by them. The prisoners, too, are suing in their own right, for themselves and for a class of inmates similarly situated. It is inappropriate, therefore, to construe the claims of the priests as derivative claims of others “not immediately before the Court [which] could not be effectively vindicated except through an appropriate representative before the Court. See Barrows v. Jackson, 346 U.S. 249, 255-259, 73 S.Ct. 1031, 1034, 1036, 97 L.Ed. 1586 [1953]; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 183-187, 71 S.Ct. 624, 95 L.Ed. 817 [1951] (Concurring Opinion).” NAACP v. Alabama, 357 U.S. 449, 458, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958).

Guiding our inquiry,- then, will be the general rule that “a litigant may only assert his own constitutional rights or immunities,” United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L. Ed.2d 524 (1960); McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and the principle that “one cannot sue for the deprivation of another’s civil rights.” C. Antieau, Federal Civil Rights Acts, Civil Practice, § 31 at 50-51.

In delineating the specific constitutional deprivation alleged to have been suffered by reason of the action of the state prison officials, the priests construct a two-pronged argument. They contend, first, that they have been deprived of their First Amendment religious freedom right to conduct religious services and offer religious counsel in a state institution. Secondly, as a result of their valid exercise of the First Amendment’s free speech clause, they suggest their First Amendment religious freedom right to conduct prison services and counseling has been abridged.

The priests do not urge, of course, that they have a constitutional right to be an inhabitant of the prison, and while inside the walls, were denied the opportunity to exercise their religion freely. Rather, their argument is the converse; that they have a First Amendment right to enter the walls so that others — the inmates — may vindicate their free exercise right. Implicit in this contention is the proposition that a clergyman has a First Amendment right, enforced through the Fourteenth Amendment, to conduct religious services and offer religious counsel in a state institution.

Superficially, this argument, endowed with the familiar ringings of freedom of religion, appears sound. This proposition, however, is premised upon the thesis that a state may properly bestow upon a clergyman a right of constitutional dimension to practice a religion in a state institution under the auspices, sponsorship, and protection of the state government and the federal constitution. Such a notion, we suggest, charts a collision course with the prohibitions of the Establishment Clause. For in their enthusiasm to vindicate alleged constitutional rights, as evidenced by their requests for injunctive and declaratory relief, and in their effort to recoup pecuniary losses allegedly sustained for “humiliation, public scorn and derision,” the priests have focused both eyes on. the Free Exercise Clause of the First Amendment without a glance in the direction of that amendment’s Establishment Clause: “Congress shall make no law respecting an establishment of religion. . . .” It is this distinction between the Establishment Clause and the Free Exercise Clause that stands at the very heart of the First Amendment.

To conclude otherwise would require a complete re-evaluation of the philosophical underpinnings of the school prayer cases typified by Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Were the thesis of the priests deemed valid, there would be little constitutional barrier preventing a clergyman from asserting a right to deliver religious instruction and conduct prayer services in a public school classroom, based solely upon the contention that he was invited therein by the students, faculty, and school board to vindicate the students’ free exercise right. However, because these priests are suing in their own right, we put aside a comparison of the rights of prison inmates to the free exercise of religion vis a vis the rights of public school students, and evaluate the problem solely from the standpoint of a clergyman’s independent right. Our analysis draws us inexorably to the distinction between the two competing prohibitions in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Appellant priests invite our reliance upon cases dating from the time of Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), and suggest that we adopt in the prison context the principle that “spreading one’s religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types.” 319 U.S. at 110, 63 S.Ct. at 873.

We are aware of the perils ascribed by Justice Harlan to “[a]ny attempt to formulate a bright-line distinction” between cases raising “establishment” and “free exercise” questions. McGowan v. Maryland, supra, 366 U.S. at 463, 81 S.Ct. at 1155 (concurring opinion). Nevertheless, prior to taking the plunge suggested by appellants and the amicus curiae, we embark upon an examination of the priests’ contentions in light of the myriad teachings of the Supreme Court which have zealously protected Jefferson’s “wall of separation between church and State.”

Our own journey commences with Justice Black’s admonition in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947): “Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’ ” (Emphasis supplied.) Thus, “[n] either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” 330 U.S. at 15, 67 S.Ct. at 511. (Emphasis supplied.) “The Amendment’s purpose,” Justice Rutledge wrote in dissent in Everson, “was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.” 330 U.S. at 31-32, 67 S.Ct. at 519.

Justice Jackson, too, although dissenting from the specific result reached in Everson, noted his agreement with the absolutism of Justice Black: “There is no answer to the proposition that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at taxpayers’ expense. . This freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states’ hands out of religion, but to keep religion’s hands off the state. . . .” 330 U.S. at 26-27, 67 S.Ct. at 516, 517.

Much of the same emanates from McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), where the Court held “released time” religious instruction “a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith,” and, hence, violative of the First Amendment which requires that both religion and government be “left free from the other within its respective sphere.” 333 U.S. at 210-212, 68 S.Ct. at 464, 465.

Thus, if there is one principle to be distilled from Everson, McCollum, and their progeny, it is that the First Amendment was intended, and has been interpreted, to forbid not only governmental preference of one religion over another, but any establishment or encouragement of religion by the state. In Abington School District v. Schempp, supra, 374 U.S. at 222, 83 S.Ct. at 1571, the Court announced a workable test: “[W]hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”

If these views formed the jurisprudential underpinning of the school prayer cases, it would seem that rejection of the priests’ contention is a fortiori. To conclude otherwise would be to suggest in the context of the public school prayer format that although a student or secular teacher may not read passages from the Bible or recite some non-denominational prayer, a clergyman is clothed with the constitutional right to enter that classroom and lead the prayers under the pretext that his presence is demanded by students under the Free Exercise Clause.

As we reject the notion that a state or the federal government may foster or support, protect or encourage any religion or group of religions, so do we find without support the proposition that religions in general are anathema to every conceivable state or federal function. As Justice Black wrote in Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962): “The history of man is inseparable from the history of religion.”

This being so, religion and the activities of the state interact at several points. Sessions of this and other courts commence with a supplication by the crier: “God save the United States and this Honorable Court.” Similarly, each House of the Congress has a Chaplain to pronounce an opening prayer, as do most larger military units. The Supreme Court has never dealt specifically with these interactions of the spheres of God and Caesar, but instead has been satisfied to announce that although the state may not protect or prefer religion, neither may it act antagonistically toward religion. Therefore, although the absolutism of Everson and McGowan, supra, transposed to the instant case, might be read to infer a lack of constitutional props for the concept of prison chaplaincies, more recent decisions emphasize a “principle of neutrality” between religions and the state which might countenance such an institution.

For example, although Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), stated that “within the scope of its coverage” the prohibitions of the First Amendment are absolute (note 5, supra), the Court went on to observe that the First Amendment “does not say that in every and all respects there shall be a separation of Church and State.” 343 U.S. at 312, 72 S.Ct. at 683.

A similar rationale underlay Engel v. Vitale, supra. In holding unconstitutional the voluntary recitation in public schools of a state-composed, denominationally neutral prayer, the Court stated that whereas the First Amendment was designed to prohibit governmental control of religion and prayer, it was not meant to inhibit either. 370 U.S. at 435, 82 S.Ct. 1261. On the contrary, “the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state,” form the basis of the Free Exercise Clause. Abington School District v. Schempp, supra, 374 U.S. at 203, 83 S.Ct. 1560. See also Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed. 2d 790 (1971); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968).

Outside the confines of school prayer cases, the principle of neutrality gained endorsement in Walz v. Tax Commission, 397 U.S. 664, 669-670, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), where the Court ruled constitutional tax exemptions for real property owned by religious organizations and used solely for religious worship. Moreover, the Court disavowed Justice Jackson’s belief that the First Amendment’s “strength is its rigidity,” Everson, supra, 330 U.S. at 26, 67 S.Ct. 504, noting instead that “rigidity could well defeat the basic purpose of these provisions.” 397 U.S. at 669, 90 S.Ct. at 1411.

In light of Chief Justice Burger’s formulation that the purpose of the Establishment Clause was to insure that “no religion be sponsored or favored, none commanded, and none inhibited,” Walz, supra, 397 U.S. at 669, 90 S.Ct. at 1411, how should a court view the institution of prison chaplaincies? Is the creation by the state of an official position for a cleric, granting to him in a state building access to members of a state-controlled prison population, state “sponsorship, financial support, and active involvement ... in religious activity?” 397 U.S. at 668, 90 S.Ct. at 1411. Conversely, is the refusal by a state officer to permit officially designated ministers of religion to counsel state-controlled prisoners on state property, state “inhibition” of religion?

Whatever be the rights of a cleric, designated by his superiors and accepted by prison officials as official prison chaplain, to enter within the walls to counsel or conduct religious services, we need not decide in this appeal. Neither Father Taylor nor Father O’Malley are official prison chaplains at Western Penitentiary, and they do not seek entrance to the prison on the basis of any alleged right of an official prison chaplain to do so. Moreover, as previously observed, they do not contend that they have a right to be an inhabitant of the prison. Rather, their contention lays between these two extremes, and suggests the existence of some vaguely defined legal preference accorded by the Constitution to ministers of religion to conduct religious services and counseling within a state institution. However, there is no principle in the law granting to clerics an absolute right to enter a prison, and Fathers O’Malley and Taylor have no constitutional right to enter Western Penitentiary. Thus, the priests’ complaint that they have been denied fundamental First Amendment rights under the Free Exercise Clause clearly misses the mark because no such rights exist in this context. It must unalterably follow that the state cannot be charged with denying that which does not exist.

Alternatively, the priests argue that state authorities have infringed upon the exercise of their First Amendment rights “ [to] peaceably assemble [to speak freely] and to petition the Government for redress of grievances,” and it was solely because of the exercise of these rights that they have been denied admission to the prison.

The priests urge our application of the principle that one’s free speech rights may be vindicated even though the expression itself was not curtailed, but a deprivation of another right resulted from the exercise of the freedom of expression. The priests and the amicus curiae direct us to a trilogy of decisions providing a basis for this principle: Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); Kiiskila v. Nichols, 433 F.2d 745 (7th Cir. 1970); Taylor v. Kentucky State Bar Association, 424 F.2d 478 (6th Cir. 1970). None of these cases compel the suggested result.

In Kiiskila, the Seventh Circuit dealt with an order of the commanding officer of a military base permanently excluding from the base appellant, a civilian employee of a credit union situated on the base. The commanding officer believed that appellant’s casual conversations with military personnel concerning the activities of the Veterans for Peace in Vietnam were “prejudicial to good order and discipline” in the military. 433 F.2d at 746-747. As a result of her exclusion from the military post, appellant’s civilian employer reluctantly dispensed with her services solely because the “military authorities have made it impossible to retain her.” The court determined that exclusion of appellant from the base and the termination of her employment violated her First Amendment rights of speech and association, and added: “A citizen’s right to engage in protected expression or debate is substantially unaffected by the fact that he is also an employee of the government and, as a general rule, he cannot be deprived of his employment merely because he exercises those rights. This is so because dismissal from government employment, like criminal sanctions or damages, may inhibit the propensity of a citizen to exercise his right to freedom of speech and association. Pickering v. Board of Education, [391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)].”

Central to both Kiiskila and Pickering is the fact of public employment. In the case before us, the issue of public employment is not present, and, therefore, the restrictions imposed upon a state for termination of public employment as a result of an exercise of First Amendment rights are neither applicable nor controlling. Indeed, in Kiiskila, the court emphasized that it was deciding neither an issue where access to the base was denied but employment was not jeopardized, nor one where an individual not employed on the base was excluded for the same reasons. 433 F.2d at 748 n. 4.

Baird, supra, subsuming the same issue as Taylor, supra, is no more compelling. In Baird, the Supreme Court reversed the judgment of the Arizona Supreme Court which denied petitioner admission to the state bar solely because she refused to answer questions concerning her personal beliefs or her affiliations with organizations which advocate certain ideas about government, viz., whether she had ever been a member of the Communist Party or any organization that “advocates overthrow of the United States Government by force or violence.” The Court observed that the power of a state to inquire into a person’s beliefs and associations is circumscribed by the First Amendment because such inquiries “discourage citizens from exercising rights protected by the Constitution.” 401 U.S. at 6, 91 S.Ct. at 706 (Emphasis supplied.) And, the Court continued, “[t]he practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character.” 401 U.S. at 8, 91 S.Ct. at 707.

Thus, clearly the necessary predicate to relief under the Taylor-Baird theory is proof of deprivation of a statutory or constitutional right as a result of the protected expression. In the context of the priests’ claim, therefore, it would be incumbent that they prove a stripping of such a right because of the exercise of their protected right of expression. As has been demonstrated, however, the alleged deprivation was of a claimed constitutional right to practice their religious profession within the penitentiary walls, a right we have shown to be nonexistent.

Nor do we detect error in the district court’s decision to grant defendants’ motion for summary judgment. The court decided no issue as to any material fact contrary to the priests. Specifically, the district court did not decide that the priests were barred from the prison because Superintendent Brierley validly determined them to be security risks. Nor, of course, did the court find that their privilege to enter within the walls was terminated in retaliation for their exercise of constitutionally protected rights of free speech. On the contrary, throughout its opinion, the district court refers consistently to the priests’ complaint, and found only that it failed to state a claim upon which relief could be granted. As this court noted in affirming an identical procedure in a closely related context: “It is no legitimate function of the court to assume the existence of a genuine issue of material fact when in truth none exists.” Gittlemacker v. Prasse, 428 F.2d 1, 5 (3d Cir. 1970). Simply stated, because the priests enjoyed no constitutional right to enter the prison, a grant of summary judgment for defendants was a proper method of terminating an action based upon such a non-existent right.

To find that these priests possess no constitutional right to visit the inmates at Western Penitentiary is not, of course, to say that the inmates may not possess a right to have the priests visit them. Although participation by the priests in a religious service requires consideration of the Establishment Clause, participation by the inmates brings into focus the Free Exercise Clause. And here the inmates stand, if not on bedrock, at least on much firmer footing than the priests.

We take as a beginning point Gittlemacker v. Prasse, supra, 428 F.2d at 4: “To determine, with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests. The desire that there be a maximum opportunity for the exercise of rights and privileges may often collide with the practical necessities of managing and administering a complicated penal community. The task of striking the proper balance between these conflicting interests is generally within the competence of the prison authorities. Thus, the federal courts have been understandingly reluctant to intervene in matters of state prison administration, recognizing a wide latitude for- judgment and discretion must be extended to prison officials.

“At the same time, however, the federal courts have been sensitive to certain particularized complaints, foremost among which have been allegations of religious discrimination. In such cases, the courts have not hesitated to intervene where prison officials have unreasonably attempted to curtail the practice of religion by prison inmates.”

In United States ex rel. Jones v. Rundle, 453 F.2d 147, 149 (3d Cir. 1971), we said that a prisoner’s right to practice his religion is not. “absolute. Such right may be reasonably restricted in order to facilitate the maintenance of proper discipline in the prison.” In Wilson v. Prasse, 463 F.2d 109, 113-114 (3d Cir. 1972), we said: “In Gittlemacker, we explicitly referred to the test as ‘The requirement that a state interpose no unreasonable barrier to the free exercise of an inmate’s religion,’ 428 F.2d at 4, and in so doing we were adhering to the test set forth in Long v. Parker, 390 F.2d 816, 820 (3d Cir. 1968): ‘Where the charge is made that the regulations imposed by prison authorities restricting religious practices fall more harshly on adherents of one faith than another, the courts will scrutinize the reasonableness of such regulations.’ ”

It appears, therefore, that where a state does afford prison inmates the opportunity of practicing a religion, it may not, without reasonable justification, curtail the practice of religion by one sect.

The inmates’ complaint that the curtailment of the visitation privileges of Fathers O’Malley and Taylor constituted religious discrimination with racial overtones fits the classic mold of a claim cognizable under § 1983 for which relief may be granted. Thus, it was improper to dismiss the complaint of these plaintiffs on the ground stated by the district court.

It remains only to determine whether summary judgment was appropriate under the circumstances, considering all of the pleadings, and the supporting and opposing affidavits. If, on balance, there remained no “genuine issue for trial,” then summary judgment could have been appropriate. F.R.Civ.P. 56(e).

Our independent examination of these materials convinces us that at the posture of the case in the trial court, it was not appropriate to enter summary judgment. This could only have been possible if, under the Long-Fittlemacker-Wilson test of this circuit, the exclusion of Fathers O’Malley and Taylor was, under the circumstances, a reasonable regulation as a matter of law. Not only did the court not make such a specific finding, but we are persuaded that there was sufficient conflict in the opposing affidavits so as to require the question of reasonableness of the regulation to be resolved by a fact finder. For example, appellants’ affidavits describe the Afro-American Mass as a deeply religious, highly significant form of worship, whereas Superintendent Brierley termed the exercise a political rally based upon the black militancy theme. Also, appellants asserted that the September 20, 1971, demonstration was entirely peaceful, lawful and orderly, and was in support of prison reform and the elimination of racism. Superintendent Brierley, on the other hand, viewed the demonstration as an attempt “to incite the prison population to riot,” and denied that it was peaceful, orderly and lawful.

Because we are remanding for a trial, we emphasize that the state may not interpose an unreasonable barrier to the free exercise of an inmate’s religion. The test for the fact finder, therefore, is simply whether under all of the circumstances, the state has sustained its burden of proof that it was reasonable for the prison authorities to prevent the two priests from engaging in any activities within the prison. In arriving at its “reasonableness” determination, the fact finder shall find the regulation to be reasonable only if the alternative chosen (complete exclusion) resulted in the least possible “regulation” of the constitutional right consistent with the maintenance of prison discipline. The state authorities are held to the reasonableness test only, and are not required to prove as a condition precedent to the imposition of the regulation that the presence of the priests constituted a “clear and present danger” to the prison. As we said in Wilson v. Prasse, supra, 463 F.2d at 114, “such a [jury] instruction as to all prison rules and regulations would have been gross error.”

We express no opinion whether the inmates’ suit may properly proceed as a class action.

The judgment in favor of the appellees against appellants, Father John O’Malley and Father Augustus Taylor, will be affirmed. The judgment in favor of the appellees against the named appellant inmates will be reversed and the cause remanded for proceedings not inconsistent with the foregoing.

      . No longer were the priests permitted to meet with any prisoners who desired counseling, but rather, were restricted to meeting their own “parishioners,” and then only in the visiting room. Moreover, the priests were denied access to the prison chapel.

      . See United States v. Biloxi Municipal School District, 219 F.Supp. 691, 694 (S.D.Miss.1963), aff’d, 326 F.2d 237 (5th Cir. 1964), cert. denied sub nom. United States v. Madison County Board of Education, 379 U.S. 929, 85 S.Ct. 324, 13 L. Ed.2d 341 (1964): “Only persons actually deprived of their individual civil rights can redress such rights.” See also Krum v. Sheppard, 255 F.Supp. 994 (W.DMich.1966), aff’d, 407 F.2d 490 (6th Cir. 1967); Brown v. Board of Trustees of LaGrange Independent School District, 187 F.2d 20 (5th Cir. 1951); Williams v. Kansas City, 104 F.Supp. 848, 857 (W.D.Mo.1952).

      . Clearly this is not a distinction without a difference. For example, in McGowan v. Maryland, 366 U.S. 420, 430, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), in a defense to a state prosecution brought under a Sunday closing law, defendants sought standing on the basis of the Free Exercise Clause. The Court denied standing on the basis of this clause because appellants alleged only economic injury to themselves, and not “any infringement of their own religious freedoms due to Sunday closing.” Nevertheless, the Court did accord defendants’ standing to challenge this law as “respecting an establishment of religion,” on the basis that they “eoncededly have suffered direct economic injury, allegedly due to the imposition on them of the tenets of the Christian religion.”

      . More recently, in Abington School District v. Schempp, 374 U.S. 203, 218-219, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), the Court endorsed Justice Rutledge’s Everson formulation:
      Our constitutional policy does not deny the value or the necessity for religious training, teaching or observance. Rather it secures their free exercise. But to that end it does deny that the state can undertake or sustain them in any form or degree. For this reason the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the twofold protection and, as the state cannot forbid, neither can it perform or aid in performing the religious function. The dual prohibition makes that function altogether private. [330 U.S. at 52, 67 S.Ct. at 529].

      . There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference with the “free exercise” of religion and an “establishment” of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute. Zorach v. Clauson, 343 U.S. 306, 312, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952). McGowan v. Maryland, supra.

      . See also Mangold v. Albert Gallatin Area School District, 438 F.2d 1194 (3d Cir. 1971).

      . Both Madison and Jefferson expressed positive doubts about the institution of chaplaincies. In Madison’s “Detached Memoranda,” he wrote: “The establishment of chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principles. ... If Religion consists in voluntary acts of individuals, singly, or voluntarily assodated, and if it be proper that public functionaries, as well as their Constituents should discharge their religious duties, let them like their Constituents, do so at their own expense.” William and Mary Quarterly, III, 554. “He classified chaplain-ships for the army and navy ‘in the same way,’ as forbidden ‘establishments’ or an ‘establishment of a national religion.’ ” Levy, Judgments, Essays on American Constitutional History, 206. As rector of the University of Virginia, Jefferson rejected a proposal to hold religious services on university property on Sundays, R. Freeman Butts observed that “the uni-versify did not even appoint a chaplain until 1829 and then only after Madison, following Jefferson as rector, had provided that the cost of maintaining the chaplain be paid by the students themselves on a voluntary basis. “ ‘Being altogether voluntary,’ declared Madison, ‘it would interfere neither with the characteristic peculiarity of the University, the consecrated principle of the law, nor the spirit of the country.’ ” Levy, Ibid. at 214. But see Abington School District v. Schempp, 374 U.S. at 297, 83 S.Ct. 1560 (concurring opinion, Brennan, J.).

      . Although it is unclear -whether the credit union employer in Kiiskila was actually an arm of the government, the court viewed appellant as a government employee: In permitting the credit union to operate at Fort Sheridan, the Army undoubtedly contemplated that access to the base would be required by civilian employees including Kiiskila. Moreover, it must also have been aware that termination of a civilian employee’s access to the base would result in the loss of his employment. Thus, in terms of the interests of both plaintiff and the Army, the exclusion order in this ease is essentially equivalent to dismissal of a person from government employment. Cafeteria & Restaurant Workers Union v. McElroy, [367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)].
      433 F.2d at 748.

      . See also Orr v. Trinter, 444 F.2d 128, 133 (6th Cir. 1971): “To prove a claim under 42 U.S.C. § 1983, a plaintiff must show (1) action taken under color of State law, and (2) a deprivation of a constitutional right as a result of that action.”

      . This phrase, originally appearing in Long v. Parker, supra, the seminal case dealing with the test of reasonableness, was used only in the context of the distribution of religious literature. In Knuckles v. Prasse, 302 F.Supp. 1036 (E.D.Pa.1969), aff’d, 435 F.2d 1255 (3d Cir. 1970), Judge A. Leon Higginbotham suggested that the more realistic test for imposing restrictions on the reception of religious literature was proof of a “clear and proiable danger.” While we found no error in the use of the phrase “clear and present danger” in the Wilson court’s charge on religious literature, we impliedly approved the Higginbotham suggestion as the appropriate test for such literature. 463 F.2d at 112 n. 12.


author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America ex rel. Manuel GONZALEZ, Relator-Appellee, v. John ZELKER, Warden, Green Haven Correctional Facility, Respondent-Appellant.
    No. 413, Docket 72-1945.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 31, 1973.
    Decided April 17, 1973.
    Joseph A. DeMaro, Asst. Dist. Atty., Nassau County, Mineóla, N. Y. (William Cahn, Dist. Atty., Nassau County, and Robert J. Kaschak, Asst. Dist. Atty., Nassau County, Mineóla, N. Y., of counsel) for respondent-appellant.
    Francis J. Valentino, Legal Aid Society of Nassau County, Mineóla, N. Y. (James J. McDonough, Attorney in Charge, Legal Aid Society of Nassau County, and Matthew Muraskin and Susan Crandall, Legal Aid Society of Nassau County, Mineóla, N. Y., of counsel) for relator-appellee.
    Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from an order of Hon. Irving Ben Cooper, United States District Court Judge for the Southern District of New York, entered on July 7, 1972, granting the relator’s petition for a writ of habeas corpus, after a hearing, pursuant to 28 U.S.C. § 2241. Reversed.

On March 18, 1966 the State Laundry in Hempstead, Nassau County, New York, was robbed by two armed men. The relator Manuel Gonzalez and one James F. Castellano were indicted and convicted in the Nassau County Court after a trial by jury, receiving concurrent sentences of 10 to 20 years for Robbery in the First Degree; 5 to 10 years for Grand Larceny in the First Degree; 2% to 5 years for Assault in the Second Degree and suspended sentences for Assault in the Third Degree. Both defendants appealed their convictions to the Appellate Division, Second Judicial Department, which affirmed without opinion (31 A.D.2d 1006, 299 N.Y.S.2d 389, 32 A.D.2d 889, 301 N.Y.S.2d 424 (1969)). The New York Court of Appeals subsequently affirmed 4-2 (27 N.Y.2d 53, 313 N.Y.S.2d 673, 261 N.E.2d 605 (1970)) with Chief Judge Fuld and Associate Judge Breitel dissenting. Certiorari was denied by the Supreme Court on January 11, 1971 (400 U.S. 996, 91 S.Ct. 470, 27 L.Ed.2d 445).

A writ of habeas corpus was then sought in the Southern District Court of New York on April 6, 1971. Judge Cooper referred the proceeding to United States Magistrate, Hon. Gerard L. Goettel, for report and recommendation. The Magistrate recommended that an evidentiary hearing be held and Judge Cooper so ordered. On February 3, 1972 a hearing was held before Magistrate Goettel. The principal witness, Marguerite D’Amora, was unable to attend and was deposed upon written interrogatories by the Hon. Gilbert Swink, a Magistrate of the United States District Court for the Eastern District of Virginia, the state where she now resides. On May 17, 1972 Magistrate Goettel submitted a report and recommended that the writ of habeas corpus issue. Judge Cooper adopted the report on June 19, 1972 and entered an order directing the respondent to release the petitioner unconditionally unless he was retried within sixty days. The order, however, was stayed and the petitioner is presently enlarged on bail pending the decision of this Court.

I

At the trial of this case Marguerite D’Amora testified that on March 18, 1966 she was working as a switchboard operator at the State Laundry in Hemp-stead, Long Island. At about 1:10 P.M. a new blue and very shiny car attracted her eye as it pulled up across the street, made a U turn and stopped in front of the laundry. Both men in the car got out and walked into the office. They were about 12 feet from her and she could clearly see their faces. She later identified the two men in court as Castellano and the relator Gonzalez. Gonzalez walked past her toward a staircase leading to the cashier’s office and because it was her job to see that no one passed, she took particular notice, asking him if she could help. Gonzalez looked into another room, walked toward her and when about one foot away pointed a gun and said “This is a stickup. Come with me.” Gonzalez brought D’Amora to the foot of the stairs together with another employee, Kitty Clarke. Gonzalez then placed a ski mask over his face and he and Castellano took the women up the stairs to the cashier’s office. Other employees were rounded up. Gonzalez rifled the contents of the safe taking cash and employees’ checks. Both men left with a blue school bag in the same blue car. The police were called.

Patrolman Guzzo testified that he was on patrol in Hempstead on March 18, 1966 shortly after 1:20 P.M. About a mile from the State Laundry he saw a blue Chevrolet. He identified on trial the State’s exhibit 19 (a picture of the car Gonzalez was driving just prior to arrest) as a picture of the car he had observed and also identified Castellano as the driver, but he could not identify the other occupant. Guzzo had been cut off by the car and was about to stop it when he was advised by radio of the robbery at the laundry. He passed the car and went to the scene of the crime where he advised the detectives of the blue Chevrolet which he considered suspicious. Detective Moran testified that while cheeking out Guzzo’s lead in Lindenhurst, shortly after 3:15 P.M., a 1960 blue Chevrolet drove past with 3 men in the front seat and with the license SK 8918. He identified Gonzalez as the driver. He and Detective Kreitzman followed the car and pulled alongside. Detective Kreitzman showed his shield and ordered the car to pull over. The driver slowed down but then accelerated with the police car in pursuit, siren blaring. The Chevrolet stopped, Gonzalez said “Stop, stop, turn it off’’ and dashed between two houses. Castellano however remained with the car and was arrested immediately. Gonzalez was observed at a phone booth one quarter of a mile away. With helicopter assistance Gonzalez was chased through a woods and finally arrested after the firing of shots and a brief wrestling match with a policeman. After their arrest both Castellano and Gonzalez confessed that they had committed the crime charged. Gonzalez led the police to a refuse can near the location where he escaped from the vehicle and turned over to the police, checks which had been taken from the laundry. Weapons and clothing used in the robbery were also recovered as a result of information given by the relator.

II

The sole issue before the court below and now on appeal is the reliability of the identification of Gonzalez by Mrs. D’Amora who was the sole witness on trial to identify him as one of the two robbers. The case for the State was overwhelming as of March 18, 1966. Mrs. D’Amora’s eyewitness identification was not anticipated as a major factor in the trial in view of the confession and recovery of weapons, clothing and loot. From the State’s point of view a conviction could be reasonably anticipated. Then on June 13, 1966 the Supreme Court decided Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, holding that a confession without appropriate warnings, even though otherwise voluntary, was inadmissible in evidence. On June 20, 1966 Johnson v. New Jersey, 384 U.S. 719, 58 S.Ct. 1019, 82 L.Ed. 1461, was decided, holding that the Miranda, requirements were to be applicable to all trials subsequently conducted. The State determined not to introduce either the confession or its fruits and thus the testimony of Mrs. D’Amora for the first time assumed major significance.

On May 12, 1966 Mrs. D’Amora had testified before the Grand Jury and was shown two photographs. She identified one as the relator Gonzalez and the other as Castellano, the men she stated had robbed the laundry seven weeks before. On June 12, 1967 the United States Supreme Court decided Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, holding that in some cases an unnecessarily suggestive line-up is violative of due process. On August 10, 1967 just before the trial, she was shown the photograph of Gonzalez whom she again identified as the man who robbed the laundry on March 18, 1966. She adhered to this identification on trial under rigorous cross-examination. The confession of Gonzalez and the evidence of the recovery of the weapon and the fruits of the crime, were not before the jury and were not sought to be introduced by the State. Evidence was offered to establish Gonzalez’ presence in the blue Chevrolet after the robbery as well as his flight and capture. On March 18, 1968 the Supreme Court decided Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, holding that an unnecessarily suggestive photographic identification will, in some instances, be violative of due process. After the affirmances by the Appellate Division and Court of Appeals, the denial of the writ of certiorari, the present application for a writ of habeas corpus issued as previously set forth.

III

A threshold question here is what weight, if any, we are to accord the findings of fact of the Magistrate which were adopted by the court below. Normally such findings are to stand unless clearly erroneous under Fed.R.Civ.P. 52(a). We do not consider this rule to be here applicable. Mr. Justice Powell writing the opinion for the Court in Neil v. Biggers, 409 U.S. 188, 193, 93 S.Ct. 375, 379 n. 3, 34 L.Ed.2d 401 (Dec. 6, 1972) noted:

This rule of practice, under which the Court does not lightly overturn the concurrent findings of fact of two lower federal courts, is a salutary one to be followed where applicable. We think it inapplicable here where the dispute between the parties is not so much over the elemental facts as over the constitutional significance to be attached to them. Moreover, this is a habeas corpus case in which the facts are contained primarily in the state court record (equally available to us as to the federal courts below) and where the evidentiary hearing in the District Court purported to be “confined” to two specific issues which we deem not controlling.

We think this view is particularly appropriate here. The essential facts are contained in the state court record. The evidentiary hearing, for the most part, was unproductive, only confirming that which is suggested by the trial record: Mrs. D’Amora did not see any photographs prior to the Grand Jury hearing and then she was shown only those of Gonzalez and Castellano. At the hearing memories had faded regarding the August 10th picture showing, but Miss Pisciotto’s trial testimony clearly describes the circumstance surrounding that showing of the robbers’ pictures to Mrs. D’Amora. It is further noteworthy that the key witness here, Mrs. D’Amora, never testified before Magistrate Goettel but was deposed in Virginia Beach where she now resides. Hence, there was no opportunity for him to observe her demeanor and judge her veracity which is a major factor in appellate courts’ normal reluctance to interfere with trial court findings of fact. United States ex rel. Miller v. LaVallee, 436 F.2d 875, 876 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1367, 28 L.Ed.2d 657 (1971):

We have in mind that when the issue the trial judge must determine relates to the validity of a witness’s identification of a defendant we ought to accord great weight to the determination the judge makes, for he has seen and has heard that witness.

Moreover, as Biggers points out the basic question to be determined here is the constitutional significance to be attached to the facts. On this score the Magistrate arrived at two separate conclusions of law. First, that the photographic identification was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and secondly, that the prosecution failed to sustain its burden by clear evidence that the in-court identification was based upon observations of the defendant other than the improper confrontations, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The problem is that the so-called “per se” rule of Wade has been found by this circuit not applicable to due process photographic identification cases which are to be determined by the more flexible “totality of circumstances” test of Stovall and Simmons.

Thus Judge Medina writing for a panel of this Court in United States ex rel. Rutherford v. Deegan, 406 F.2d 217, 218-219, cert. denied, 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771 (1969) held:

We think it clear that the rule of Wade, applicable only prospectively and requiring a hearing and finding that “the in-court identifications had an independent source” based on “clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification” or a finding that the error was harmless, is clearly not the rule governing Stovall or other due process of law cases. To intermingle the two separate but analogous rules of Wade and Stovall can only result in confusion .... We think it is clear that no per se rule governs the due process of law cases.

This position was reaffirmed in United States ex rel. Miller v. LaVallee, supra, 436 F.2d at 876.

While the Magistrate here espoused both rules, a reading of his final report where he discusses the legal issues indicates that in effect he adopted the “per se” approach of Wade espoused in United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148, 1153 (1971).

We conclude therefore that although the showing of a single photograph (here there were two photographs shown but only of the two defendants charged with the robbery) is impermissibly suggestive, our inquiry must be whether under all the circumstances it gave rise to a very substantial likelihood of irreparable misidentification. United States ex rel. Carter v. Mancusi, 342 F.Supp. 1356, 1357-1359 (S.D.N.Y.1971), aff’d on opinion below, 460 F.2d 1406 (2d Cir. 1972).

IV

The ultimate issue is whether under the totality of circumstances Mrs. D’Amora was identifying Gonzalez on trial as the man whose photograph she had been shown twice or whether she had such a definite image of him in her mind ^before the unnecessarily suggestive showing, that she was relying on it rather than the photograph. United States ex rel. Phipps v. Follette, 428 F.2d 912, 915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970). Precedent is of little value in cases such as this, each of which must be judged on its own facts; Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. 967. After a careful reading of the record we believe that there is no substantial likelihood that Mrs. D’Amora misidentified Gonzalez. The robbery unquestionably made a deep impression on Mrs. D’Amora who was obviously terrified by Gonzalez when he pointed the gun at her and announced the hold-up. She was only a foot away from him. She was not a casual bystander, the light was good and her attention was focussed upon him. See United States ex rel. Frasier v. Henderson, 464 F.2d 260, 264-265 (2d Cir. 1972). Her description of him, given shortly after the robbery, was, under the circumstances reasonably accurate. See United States ex rel. Bisordi v. LaVallee, 461 F.2d 1020, 1024-1025 (2d Cir. 1972). On trial she testified at least three times that she was certain of her identification. This positive identification is a factor which is entitled to consideration. United States ex rel. Carter v. Mancusi, supra, 342 F.Supp. at 1359. She was subjected to a thorough cross-examination which covers some 100 pages of about 500 pages of trial testimony. While there was a long period between the robbery and the trial, as Mr. Justice Harlan pointed out, the range of misidentifieation is lessened by cross-examination at trial. Simmons v. United States, supra 390 U.S. at 384, 88 S.Ct. 967. The jury to which the evidence was directed found the identification reliable and so did the appellate courts of the State of New York.

We are further enlightened by Mrs. D’Amora’s testimony at her deposition below. After some six years Mrs. D’Amora had no clear recollection of the photographic identification procedures but still is sure that the man who was the defendant on trial, was the man who held her up. This strongly supports in our view the indelible imprint made by the event and the principal characters, Gonzalez and Castellano. Mrs. D’Amora identified not only Gonzalez but Castellano. His petition for a writ of habeas corpus has been denied without an evidentiary hearing and denial was affirmed in open court by a panel of this Coui't on April 4, 1972. While this case is not at all binding here since two other witnesses identified the unmasked Castellano, it at least supports to some extent Mrs. D’Amora’s reliability to identify the robbers despite the same suggestive procedure which was employed in both cases.

We should also note that while the procedure here was suggestive there is no indication at all that the police were guilty of any activity designed to unfairly influence the trial of the relator. They were unable to anticipate Miranda and Simmons and were not attempting to circumvent normal procedures. There is no suggestion in the record that the police persuaded or coerced Mrs. D’Amora. On the contrary, our review of the minutes of Mrs. D’Amora’s, Grand Jury testimony and Miss Pisciotto’s trial testimony concerning the August 10th photographic identification discloses that restraint was practiced. This is further evidenced by the fact that Kitty Clarke, the only other witness to see the unmasked Gonzalez, was shown the same pictures at the same time on August 10 and was unable to identify either Gonzalez or Castellano. The confession and the fruits of the crime retrieved from it were not even sought to be introduced by the State in the trial of the alleged robbers.

Moreover, in determining whether or not the suggestive photographic identification procedure resulted in misidentificatibn, we may properly consider the other factors which were before the jury and were properly admissible which tend to establish that there was not substantial likelihood of misidentification. United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2d Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 331 (1971); United States ex rel. Phipps v. Follette, supra 428 F.2d at 916-917; Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1250-1252 (1968) (en banc) (Leventhal, J., concurring, joined by now Chief Justice Burger), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).

In our examination of the State record we find other evidence which corroborates the identification and establishes that no violation of due process was present in the Gonzalez’ trial. There was evidence that Gonzalez had been an employee of the laundry which could account for his apparent familiarity with the location of the cashier’s office, his awareness that Friday (the day of the robbery) was payday for the route drivers (his job) and also would account for his wearing a mask while Castellano used no disguise. Moreover, the general physical description of the masked robber fitted Gonzalez. More damning of course was the presence of both men in a car fitting the description of that driven to and from the laundry. Patrolman Guzzo who was on patrol shortly after 1:20 P.M. about one mile from the scene of the robbery observed Castellano driving the car which at trial he identified as the one Gonzalez was driving just prior to his arrest. At about 2 P.M. the day of the robbery, Richard Phillips testified that both Gonzalez and Castellano came to his home and asked him to ride with them to Copiague. Castellano was then unshaven, the description given by those who viewed him on the robbery scene. Phillips further testified that while he and Gonzalez stopped at a diner Castellano went to a barber and then came back freshly shaved. The three men were then observed driving in the blue Chevrolet by Detective Moran who identified Gonzalez as the driver and Castellano as a passenger. Gonzalez fit the description of one of the robbers “male, white, early twenties, dark hair, heavy set and 5'10"”. When the police car moved up to the Chevrolet, Gonzalez was showed the police shield and first slowed down, then suddenly accelerated. Gonzalez ran out of the car but Castellano was arrested. The Suffolk County Police were then alerted and at about 3:25 P.M. Patrolman Shirvell observed Gonzalez stepping into an outdoor phone booth. Gonzalez again ran away and refused to stop when warned and kept running even when shots were fired. Assistance was called for and Patrolman Carter observed a man running who fit Gonzalez’ description. After another chase and a struggle Gonzalez was finally handcuffed.

While no single circumstance here was damning, the accumulated circumstantial evidence in our view fully substantiated the fact that Mrs. D’Amora accurately identified Gonzalez. All of this evidence was before the jury. In our view Gonzalez was accorded due process and his conviction was proper and without constitutional taint.

The State argues that the Gonzalez confession although not complying with Miranda was in fact voluntary and although inadmissible on trial, is admissible on this proceeding. This is a novel proposition not supported by any authority and was rejected by the court below. In view of the disposition we have made, we do not reach the point.

Reversed.

      . Guzzo had indicated that the Chevrolet was either a ’59 or ’60 model and had copied down the license as SK 8919. By the time Moran observed the robbers’ auto, it had already been determined that an error had been made, since the car having license SK 8919 was a 1964 Corvair.

      . The first photograph showing here was pre-Wade but the second showing just before trial was post-Wade. AVe note however that Wade involved the right to counsel at pretrial line-ups and in that context required “clear and convincing evidence” aliunde line-up identification. This circuit lias consistently held (see, e. g., United States v. Counts, 471 F.2d 422, 425, n. 2 (1973); United States v. Johnson, 467 F.2d 630, 637 (1972), and United States v. Bennett, 409 F.2d 888, 899-900, cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969)) that there is no constitutional right to counsel at a photographic identification. We are therefore not within the Wade rule. We do note, however, that this issue was recently argued before the Supreme Court on January 10, 1973 in United States v. Ash, Doc. No. 71-1255, 41 U.S.L.W. 3390.

      . The court in United States v. Gambrill, supra, 1153, reached the conclusion “that an impermissibly suggestive photographic display should be considered to give rise to a very substantial likelihood of irreparable misidentification if the Government is unable to show, by clear and convincing evidence that a subsequent in-court identification is based on a source independent of the photographic display.” (footnote omitted).

      . Mrs. D’Amora initially described Gonzalez as a male, white, 5TO” tall, stocky build, 26 years of age and blond hair. Gonzalez was a white male, between 5'8" and 5'9" tall, weighed 194 lbs. and was 27 years old at the time of the robbery. His hair however is not blond but dark brown or black. This misdescription is not surprising under the circumstances. Gonzalez was standing under a fluorescent light when he faced Mrs. D’Amora and she was understandably nervous at the time of the robbery. She took four tranquilizers that day, apparently at least one after Gonzalez donned his mask but before the robbers left, and evidently suffered from nervousness a good while thereafter.

      . As we understand Chief Judge Fuld’s dissent, he was of the opinion that the burden was on the prosecution to show by clear and convincing evidence that the in-court identification stemmed from a source independent of the two pre-trial photographic identifications (see 27 N.Y. 2d at 60; 313 N.Y.S.2d at 678, 261 N.E. 2d at 608) thus following the Wade test.

      . The Court: Do you remember seeing photographs of either of the persons who committed the robbery?
      Mrs. D’Amora: I don’t remember.
      The Court: Before you testified in the Grand Jury? (pause) Did you see such pictures?
      Mrs. D’Amora: I don’t remember.
      The Court: During your testimony in the Grand Jury? Did you see pictures?
      Mrs. D’Amora: Yes, I think I did.
      The Court: Before you testified at the trial?
      Mrs. D’Amora: Yes, I think I did.
      The Court: In the District Attorney’s office?
      Mrs. D’Amora: I don’t remember if it was in the District Attorney’s office, or where it was that they showed me pictures.
      The Court: All right. The next question is, at any time? Did you see pictures ?
      Mrs. D’Amora: Yes, I’m sure I did.
      The Court: If you do remember any such incident, would you describe what you remember about it including who the person was who showed the picture? (pause)
      Mrs. D’Amora: I dont [sic] know who it was.
      The Court: How many pictures were shown?
      Mrs. D’Amora: There was a picture of a car shown.
      The Court: Do you know how many pictures were shown to you? (pause)
      Mrs. D’Amora: I don’t know. I don’t remember.
      The Court: Who was portrayed in those pictures?
      Mrs. D’Amora: I don’t remember that either.
      The Court: What was said to you by the person exhibiting the photographs?
      Mrs. D’Amora: I don’t remember that.
      The Court: And, who else was present at that viewing?
      Mrs. D’Amora: I was in a room, and there seemed to be a few people sitting out there.
      The Court: You do not know any of the names?
      Mrs. D’Amora: No, I don’t.
      The Court: Or their positions-— whether they were police officers of [sic] who they might have been?
      Mrs. D’Amora: I don’t remember.
      The Court: When you testified at the trial and identified Manuel Gonzalez as the man who approached you at the switchboard and eventually put on the ski mask, were you positive, in fact, that he was that man?
      Mrs. D’Amora: Yes, I was.
      The Court: Are you positive today that your identification of Manual Gonzalez was correct?
      Mrs. D’Amora: At the time I identified him, I made my identification as what happened in the office.
      The Court: Are you positive today that the identification that you gave in the trial is correct?

        Mrs. D’Amora: Yes.
      The Court: Did anything that occurred between the time of the crime and the time you testified at the trial influence you in making an identification of Manuel Gonzalez?
      Mrs. D’Amora : There wasn’t.
      The Court: No?
      Mrs. D’Amora: No.
      The Court: If you had not seen any photographs of Gonzalez between the time of the crime and the time you testified at trial, would you have been able to identify him?
      Mrs. D’Amora: To the best of my knowledge, as of the day he walked into my office, yes.
      The Court: All right. Did you see either of the two men who committed the robbery in the courthouse prior to your testifying at the trial?
      Mrs. D’Amora: I’m sorry, would you repeat that?
      The Court: Did you see either of the two men who committed the robbery in the courthouse prior to your testifying at the trial? (pause) In other words, did you see them before you went on the witness stand to identify them?
      Mrs. D’Amora: Yes, I did. They were walking and I was sitting in the corridor — and they were walking in— on the other side of the room.
      The Court: Could you have identified Gonzalez in court if you had not seen his photograph in the Grand Jury? (pause) I’ll repeat that question. Could you have identified Gonzalez in court if you had not seen his photograph in the Grand Jury?
      Mrs. D’Amora: Yes.
      The Court: Could you have identified Gonzalez in court if you had not seen his photograph prior to testifying at the trial?
      Mrs. D’Amora: Yes.
      The Court: Did seeing Gonzalez’ photograph in the Grand Jury influence your identification of him at the trial?
      Mrs. D’Amora: No.
      The Court: Did seeing Gonzalez’ photograph prior to your testimony influence your identification of him at the trial?
      Mrs. D’Amora: No.
      The Court: If you had not seen any photographs of Gonzalez, would you have been able to identify him at the trial?
      Mrs. D’Amora: At that time, yes.

      . United States ex rel. Castellano v. Zelker, 71-C-487 (E.D.N.Y. Dec. 8, 1971).

      . Although the cashier’s office was up a flight of stairs and off a main office which had an unmarked door, no witness could recall directing the robbers to the cashier’s office. Drivers of course would be aware of its location, since they had to make their reports in an office adjacent the cashier’s office.

      . It was just prior to the robbers’ ascent of the stairs that Gonzalez donned his mask. While it was necessary for the drivers to visit the upstairs offices in order to make their reports, there was testimony at trial that they did not frequent the front offices occupied by Clarke ■ and D’Amora; there was another entrance to the upstairs offices.

      . While Guzzo could not identify Gonzalez as being the second man in the car, he described him as being heavyset and having brown hair.