text:
    Donald L. BONE, Plaintiff-Appellee, v. HIBERNIA BANK and Michael Shields, Defendants-Appellants.
    No. 73-1540.
    United States Court of Appeals, Ninth Circuit.
    March 4, 1974.

      Moses Lasky (argued), Brobeck, Phle-ger & Harrison, Tobin & Tobin Law Offices, San Francisco, Cal., for defendants-appellants.
    Robert L. Lieff (argued), and Donald L. Bone, pro se, of Lieff, Alexander & Wilcox, San Francisco, Cal., for plaintiff-appellee.
    Before DUNIWAY and CHOY, Circuit Judges, and JAMESON, District Judge.

       The Honorable William Jameson, United States District Judge for the District of Montana, sitting by designation.

   CHOY, Circuit Judge:

Donald L. Bone charges that the Hibernia Bank violated the disclosure requirements of the Truth in Lending Act, 15 U.S.C. § 1638(a) (1970), as implemented by the Federal Reserve Board’s Regulation Z, 12 C.F.R. Part 226, by failing to adequately identify its method of computing the unearned, precomputed portion of the finance charge on a loan obligation in the event of the obligation’s prepayment. Hibernia’s disclosure statement revealed that its method of rebating such interest was “according to the ‘Rule of 78’s’.” The district court, holding that this simple reference did not provide meaningful disclosure to the average credit consumer, granted Bone summary judgment and awarded him damages under 15 U.S.C. § 1640(a) (1970). The Bank appeals. We reverse.

On December 6, 1971 Bone received a loan of $4,000.00 for the purchase of an automobile from Hibernia’s branch office in Lafayette, California. Interest on the loan was 7.51% per annum. The finance charge was precomputed at this rate for the three year duration of the loan obligation and added to the face amount of the note, for a total indebtedness of $4,479.84 which Bone promised to repay in 36 successive equal installments of $124.44 per month.

Before consummating the loan agreement, Bone told Michael Shields, the bank loan officer, of his concern about whether there would be any penalty for prepaying the obligation. Bone then questioned Shields at great length about the prepayment clause contained in Hibernia’s disclosure statement which provides :

“PREPAYMENT. If the Loan is paid in full prior to final payment date or maturity, Borrower shall receive a rebate of any precomputed interest included in the finance charge according to the ‘Rule of 78’s;’ provided, however, that there will first be deducted therefrom the sum of $25.00.”

Shields explained the meaning of this clause and described its operation in several hypothetical examples of the results obtained if the loan were prepaid at various times before maturity. Several days after receiving the loan, Bone telephoned the Bank, informed it of its alleged violation of the Truth in Lending Act, and offered to “settle his claim” against the Bank in exchange for a credit of three times the amount of the finance charge. When the Bank refused the offer, Bone, appearing in pro. per., filed this action in the district court.

THE RULE OF 78’s

The Rule of 78’s has been defined succinctly in the statutory language of the California Civil Code § 1806.3 as a method in which:

“the amount of [the] refund credit represent[s] at least as great a proportion of the finance charge ... as the sum of the periodic monthly time balances not yet due bears to the sum of all the periodic monthly time balances under the schedule of installments in the contract . . . .”

A description of the Rule’s operation, however, requires somewhat greater elaboration.

The Rule of 78’s is also known as the sum-of-the-digits and direct ratio methods. Under the Rule, when a loan is to be repaid in monthly installments, each month of the loan’s term is assigned a digit, with the first month’s digit equal-ling the total number of months in the agreed period of the loan. The second month is then assigned a digit one less than that of the first, the third month again one less, and so on, until the digit assigned to the last month equals (1) one. For a twelve month loan, the sum of the digits (12 + 11 + 10 + 1) of this arithmetic progression is 78. This number then serves as the denominator in a fractional equation, with the numerator being the sum of the digits for those months expired at the time of the obligation’s prepayment. For example, assuming a twelve month loan obligation, if the entire loan were prepaid at the end of the first month, 1%s of the total finance charge would be retained by the creditor. This represents a greater proportion of the finance charge than in any other month because the borrower has had the use of the entire amount of the loan for that month. At the end of the second month, +8 of the finance charge would be retained since the borrower has had the use of 1:Ü2, or most of the loan proceeds for that month. If the borrower prepaid the entire obligation at this time, 2SA* of the finance charge would be considered to have been earned and therefore would be retained by the creditor. At the end of six months, the creditor would be entitled to 57A« of the total finance charge, and the consumer in turn to 21> of such charge. See generally W. Minrath, Handbook of Business Mathematics, 506-10 (2d ed. 1959); Donaldson, An Analysis of Retail Installment Sales Legislation, 19 Rocky Mt.L.Rev. 135, 151-52 (1947); Newman, Refunding Unearned Interest Under Section 108(1) of the New York Banking Law, 90 Banking L.J. 116, 125-29 (1973). As can be seen from even this simplified description, the operation of the Rule of 78’s is not difficult to comprehend, but like many arithmetic formulas, it requires a somewhat lengthy exposition in order to be understood.

The results obtained by the Rule of 78’s method closely approximate those of the “actuarial” method in which the rebate bears a more direct relationship to the amount of money received and the time for which it is used, and in which “true” interest yields are produced. Because the actuarial method requires the use of actuarial tables and more difficult computations, however, the more easily computed Rule of 78’s method is widely used by banks and financing institutions as an acceptable substitute for the actuarial method. Donaldson, 19 Rocky Mt.L.Rev. supra at 151-52; Jordan and Warren, Disclosure of Finance Charges: A Rationale, 64 Mich.L.Rev. 1285, 1288-90 (1966).

THE TRUTH IN LENDING ACT AND REGULATION Z

In 1968 Congress enacted the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1681 (1970). In the statute’s first subchapter known as the Truth in Lending Act, Congress declared its purpose to be to assure to credit consumers a meaningful disclosure of credit terms, thus enabling these consumers to compare more readily the various available credit terms, and thereby avoid the uninformed use of credit. 15 U.S.C. § 1601 (1970). To implement these goals, Congress entrusted much of the construction of the Act to the Federal Reserve Board. The Board was given broad regulatory and rulemaking powers designed “to carry out the purposes” of the Act, by prescribing regulations which

“may contain such classifications, differentiations, or other provisions . as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchap-ter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.”

15 U.S.C. § 1604 (1970). The Federal Reserve Board was thereby empowered to require such disclosure of credit terms as in its judgment was necessary to fulfill the objectives of the Act.

Pursuant to this congressional mandate, the Board promulgated its Regulation Z, 12 C.F.R. Part 226. The section of these regulations which Hibernia is charged with violating provides that the lending institution’s disclosure statement to the borrower shall contain

“[i] dentification of the method of computing any unearned portion of the finance charge in the event of prepayment of the obligation and a statement of the amount or method of computation of any charge that may be deducted from the amount of any rebate of such unearned finance charge that will be credited to the obligation or refunded to the customer.”

12 C.F.R. § 226.8(b)(7).

Bone does not contend that Hibernia failed to disclose the amount of the charge to be deducted from any rebate, since the $25.00 amount is plainly revealed in the bank’s disclosure statement. It should also be noted that neither the Act nor the regulations require that a lender rebate any portion of the unearned finance charge in the event of the obligation’s prepayment. Nor do they specify which method, if any, is to be used in computing such rebate. However, in the event that it does rebate such finance charges, the lending institution, in order to comply with this regulation, must “identify” the method used in computing the rebate.

It seems evident that Regulation Z has been drafted in precise, technical language. Where the Federal Reserve Board has decided that in order to provide adequate disclosure a term must be explained or described, it has required such an explanation or description. See, e. g., 12 C.F.R. § 226.8(b)(6). Therefore, we cannot assume that as a result of mere oversight the Board required only the “identification” of the method in this instance. Although this term also seems explicit in its requirements, however, we find its connotations ambiguous since it suggests either of two plausible meanings.

“Identification” could mean, as the district court held, that the method of rebating unearned interest must be one which is understood by the average borrower, in order that it in fact be “identified.” Simple reference to the Rule of 78’s does not serve this function, for we daresay that its meaning is known to virtually no credit consumers. As the district court stated, “[tjhere must be a recognized nexus between the words used and some acceptable referent, or else the words used are at large and divorced from both reality and meaning.” On the other hand, “identification” could mean that reference to the method by name alone will suffice for purposes of the regulation, despite the esoteric nature of that which is being so “identified.” Two other district courts have impliedly so held when determining the Rule of 78’s to be adequate “identification.” Kenney v. Landis Financial Group, 349 F.Supp. 939, 946-947 (N.D. Iowa 1972); Richardson v. Time Premium Co., 4 CCH Consumer Credit Guide ¶ 99,272 (S.D.Fla.1971).

Our concern here is not with the construction of a statute, but rather with the construction of an administrative regulation issued pursuant to statutory directive. When interpreting an administrative regulation whose meaning is in doubt, we must necessarily look to the construction given the regulation by the agency responsible for its promulgation. Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L. Ed. 1700 (1945). While lacking the force of law and certainly not controlling upon the courts,

“the rulings, interpretations and opinions [of that agency] ... do constitute a body of experience and informed judgment to which courts may properly resort for guidance. The weight of such a judgment in a particular ease will depend on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see Gerlach v. Allstate Insurance Co., 338 F.Supp. 642, 648-649 (S.D.Fla.1972). Great deference is especially due the Federal Reserve Board’s construction of its own Regulation Z because of the important interpretive and enforcement powers granted this agency by Congress under the Truth in Lending Act. Taylor v. R. H. Macy & Co., 481 F.2d 178 (9th Cir.), cert. denied, 414 U.S. 1068, 94 S.Ct. 577, 38 L.Ed.2d 473 (1973); see also Douglas v. Beneficial Finance Co., 469 F. 2d 453 (9th Cir. 1972).

Prior to the district court’s decision in this ease, the Federal Reserve Board had not issued any formal interpretation of its rebate method “identification” requirement. However, individual members of the Board staff had written informal advisory letters to inquiring creditors, to assist them in complying with the complex requirements of Regulation Z. In these letters the Board’s position was consistently stated as requiring only reference by name to commonly known rebating methods. For example, on April 17, 1970, Milton W. Schober, assistant director of the Board, wrote to an inquiring lender regarding the Rule of 78’s.

“In view of the length and difficulty of a mathematical statement of the Rule, it has been our position that a statement to the effect that ‘any rebate will be computed under the Rule of 78’s’ will comply with Section 226.-8(b)(7) .... The creditor would not be required to set forth a narrative or mathematical formula of computation to explain the Rule on his disclosure statement, although fairness and good business would suggest that he should probably inform the customer of the way the Rule works if a rebate does become involved in the transaction and the customer requests the explanation.”

Similarly, in a handbook issued by the Board of Governors of the Federal Reserve Board entitled “What You Ought to Know About Truth in Lending,” the Rule of 78’s was mentioned several times as an example of an “identified” method of rebating any unearned finance charges within the meaning of Regulation Z. While these letters and the pamphlet represent only unofficial views of the Board, they nonetheless clearly indicate the Board’s construction of its “identification” requirement. In order to further clarify its position, however, on April 30, 1973, the Board issued a formal interpretive rule, 12 C.F.R. § 226.818, 38 Fed.Reg. 12.202, pursuant to the publication requirements of 5 U.S.C. § 553(d) (1970). 12 C.F.R. § 226.-818(c) states in part: “[T]he requirement of rebate ‘identification’ is satisfied simply by reference by name to the ‘Rule of 78’s’ or other method, as applicable.” Thus, there can be no doubt of the Board’s interpretation of the word “identification.”

We find the Board’s reasons for so limiting the identification requirement to be persuasive. In a statement of August 6, 1971 explaining the rationale for its decision, the Board of Governors’ vice chairman, J. L. Robertson, stated:

“Following the June hearings before the National Commission on Consumer Finance, we again studied the problem of disclosure of the method of rebating unearned finance charges. We agree that a simple explanation as to what the Rule of 78ths encompasses would certainly be more meaningful to the consumer than the statement that rebates are figured on the Rule of 78ths. Unfortunately, we have found no simple way to solve this problem. The alternative would seem to require a lengthy and complicated mathematical statement which, we suspect, would be equally as uninformative to the consumer, and would have the added disadvantage of further complicating the disclosure statement and detracting from other important disclosures. Accordingly, we feel at this time that our present position is the best of admittedly unsatisfactory alternatives.”

We believe that it is precisely these kinds of policy decisions about the disclosure statement, requiring the weighing and balancing of the various available choices, that Congress entrusted to the Federal Reserve Board by granting it such broad powers. The conclusions thus reached by the Board are based upon its specialized experience and access to information, which is not likely to come to the attention of a particular judge in a given case. While reasonable minds may differ as to which alternative would best suit the purposes of the Act, “courts should defer to the informed experience and judgment of the agency to whom Congress delegated appropriate authority.” Mourning v. Family Publications Service, Inc., 411 U.S. 356, 372, 93 S.Ct. 1652, 1662, 36 L. Ed.2d 318 (1973). “This court is not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers.” American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 236, 57 S.Ct. 170, 172, 81 L.Ed. 142 (1936) ; see Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Garza v. Chicago Health Clubs, Inc., 329 F.Supp. 936, 939 (N.D. Ill.1971).

Bone additionally contends that use of the Rule of 78’s for computing finance charge rebates, instead of the actuarial method, constitutes a prepayment penalty charge under .12 C.F.R. § 226.-8(b)(6) (see note 2 supra) because the “effective annual percentage rate” varies from the stated rate of 7.51%, depending on the month of prepayment. As we have mentioned, there is a slight difference in the amount of the rebate under the Rule of 78’s from that of the actuarial method. Although the district court did not rule on this issue, which was raised in Bone’s complaint, when granting summary judgment, we regard this contention as being clearly foreclosed, since there is no requirement that the annual percentage rate be expressed so that it takes into account future contingencies. Indeed,- once disclosed, if the annual percentage rate is “rendered inaccurate as the result of any act, occurrence, or agreement subsequent to the delivery of the required disclosures it is not a violation of the Act. 15 U.S.C. § 1634 (1970). Otherwise, subsequent events such as late payment charges, Christmas deferrals or prepayment of the obligation, would each require a reeomputation of the annual percentage rate. This result would be entirely unwieldy and impractical. Our conclusion is again reinforced by the Federal Reserve Board’s April 30, 1973 interpretive ruling which specifically declares that a rebate calculated according to the Rule of 78’s does not constitute a penalty charge for prepayment that must be disclosed. 12 C.F.R. § 226.818(b), 38 Fed.Reg. 12.202; see also Uniform Consumer Credit Code § 2.209 (Official Comment).

In conclusion, we hold that Hibernia’s disclosure statement was in compliance with the applicable section of Regulation Z, which required only “identification” of the rebate method. This requirement was satisfied by reference to the Rule of 78’s and the district court erred in requiring more. Accordingly, the judgment is reversed and remanded with instruction to dismiss the complaint. The parties shall bear their own costs.

Reversed and Remanded With Instruction.

      . This number, of course, varies with the length of the loan’s repayment period. E. g., a 6-month loan equals 21, while for a 24-month obligation the sum is 300.

      . “A description of any penalty charge that may be imposed by the creditor or his as-signee for prepayment of the principal of the obligation (such as a real estate mortgage) with an explanation of the method of computation of such penalty and the conditions under which it may be imposed.” (emphasis added)

      . Quoted in 4 COH Consumer Credit Guide ¶ 30,532. See also Federal Reserve Board Advisory Letter of March 6, 1970, by Kenneth A. Kenyon, deputy secretary, quoted in 4 CCH Consumer Credit Guide 1[ 30,522; Federal Reserve Board Advisory Letter of July 29, 1970, by Tynan Smith, assistant director, quoted in 4 COH Consumer Credit Guide ¶ 30,565.

      . In this part of his brief, Bone apparently concedes that reference to the actuarial method in the disclosure statement would be adequate “identification.” But, we doubt that such reference would spark any greater degree of recognition on the part of credit consumers than does the Rule of 78’s. Webster’s New International Dictionary (2d ed. 1966) defines “actuarial” as: “Of or pertaining to actuaries; determined by actu-_ aries; as the actuarial value of an annuity.” “Actuary” is further defined as: “A registrar or clerk; used originally in courts of civil law jurisdiction, but in Europe used for a clerk or registrar generally. 2. One whose business or profession is to calculate insurance risks and premiums.”


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge: CHAMBERS, Circuit Judge BOLDT, District Judge DUNIWAY, Circuit Judge.

license: Public Domain

text:
    GULF OIL CORPORATION et al., Plaintiff-Appellees, v. The Honorable Rogers C. B. MORTON, Secretary of the Interior of the United States of America, et al., Defendant-Appellants.
    No. 72-2449.
    United States Court of Appeals, Ninth Circuit.
    Nov. 27, 1973.
    Rehearing Denied Mar. 25, 1974.

      William D. Keller, U. S. Atty. and Donald J. Merriman, Asst. U. S. Atty., Los Angeles, Cal., Jacques B. Gelin (argued), Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, Myles E. Flint, Attys., U. S. Dept, of Justice, Washington, D. C., for defendant-appellants.
    Gibson, Dunn & Crutcher-Samuel O. Pruitt, Jr., (argued), A. L. Wirin, and Fred Okrand (argued) for amici curiae, Los Angeles, Cal.
    Marvin Levine, Deputy Co. Counsel, Santa Barbara, Cal., for plaintiff-appel-lees.
    Before CHAMBERS and DUNIWAY, Circuit Judges, and BOLDT, District Judge.

         The Honorable George H. Boldt, Senior United States District Judge, Western District of Washington, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

This is an appeal by the Secretary of the Interior and subordinate federal officials from a judgment (1) setting aside the Secretary’s orders suspending drilling operations on eleven oil and gas leases in the Santa Barbara Channel, (2) directing the Secretary to forthwith grant all pending applications for drilling permits, and (3) extending the initial term of these leases for 32 months to enable the lessees to exercise their rights under these leases.

We reverse.

1. The Facts

The relevant facts have been stipulated to by the parties. Plaintiffs are the holders of eleven oil and gas leases covering areas of the outer continental shelf in the Santa Barbara Channel, granted in 1968 pursuant to the terms of the Outer Continental Shelf Lands Act, 67 Stat. 462 (Aug. 7, 1953), 43 U.S.C. §§ 1331-1343 (OCS Act). They have paid some $153,000,000 for these leases. In January, 1969, a well being drilled by Union Oil Company under another lease, not one here involved, blew out, causing the massive Santa Barabara oil spill. Shortly thereafter, the Secretary suspended all operations on certain leases in the Channel. This order was complied with, although the companies took an unsuccessful administrative appeal, and the leases were extended for the period of the suspension. In April, 1971, before plaintiffs had begun drilling under the leases here in question, they were again ordered to suspend operations. They were informed that this suspension was to continue until January, 1973, that the lease terms would be extended for an appropriate period of time, and that no royalties would be due from them during the suspension. On appeal, the Secretary sustained the suspension, stating that it was for the purpose of permitting Congress to consider proposed legislation to terminate the leases, and that the action was taken “in the interest of conservation.” His decision incorporated a statement by the Acting Director of the United States Geological Survey which identified three environmental risks which would be involved in continuing operations under the leases: the possibility of another blowout; the possibility that wells would be improperly plugged should the legislation pass and abandonment become necessary; the possibility that geologic structures such as the one which contributed to the 1969 spill would be encountered and fractured, thus causing large quantities of oil and gas to escape. The statement emphasized that none of these risks was acute and that, if the development and extraction of oil were contemplated under these leases, the risks would be acceptable. However, it also concluded that the risks were unacceptable in light of the fact that the leases might be terminated in the near future.

The plaintiffs then filed this action, requesting that the suspensions be declared invalid and revoked, that the Secretary be ordered to issue drilling permits for the leases, and that the leases be extended to compensate for the loss of drilling time. The district court entered judgment in their favor, stating:

“This Court considers that the only suspension orders which can be issued by the Secretary are those provided for by Section 12 of the Act [dealing with suspension during time of war and for defense purposes] or those providing for the suspension of actual operations when requested by the lessee or when necessary to prevent waste or damage to person or property.” 345 F.Supp. at 685, 688-689.

2. The Standard of Review

It is clear that this action, one for relief in the nature of mandamus, is “review of agency action” and so subject to the Administrative Procedure Act, 5 U.S.C. § 703. The Secretary’s action is what has been called “informal” agency action, i. e., administrative action which may be taken without formal hearings or other opportunity for public participation. See Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 316 n. 10 (1971). Cf. Citizens to Preserve Overton Park v. Volpe, 1971, 401 U.S. 402, 413-417, 91 S.Ct. 814, 28 L.Ed.2d 136.

The six standards of review are established by the Administrative Procedure Act, 5 U.S.C. § 706(2):

“The reviewing court shall—
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.”

Subsections .(E) and (F) obviously have no relevance to this case. The plaintiffs allege no procedural defects in the decision-making process, and contend that their constitutional rights have been violated only in the unlikely event that the suspension order is upheld but the extension of the lease terms is not. The regulations expressly provide for the extension of the lease terms in the event of suspension, 43 C.F.R. § 3305a.4, and nothing in the OCS Act prohibits it. Thus, the Secretary’s action in suspending operations under the leases can be found invalid only if it was unauthorized, 5 U.S.C. § 706(2) (C), or if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (A).

3. Suspension in the Interest of Conservation is Authorized by Statute

The Supreme Court has held that review under section 706(2)(C) requires an inquiry which delineates the range of choices available to the administrative official, and which makes “a determination of whether on the facts the [official’s] decision can reasonably be said to be within that range.” Citizens to Preserve Overton Park, supra, 401 U.S. at 416, 91 S.Ct. 823.

We first consider the range of choices available to the Secretary. With respect to this question, a careful reading of the statutes leads us to the conclusion that Congress authorized the Secretary to suspend operations under existing leases whenever he determines that the risk to the marine environment outweighs the immediate national interest in exploring and drilling for oil and gas.

Section 5(a)(1) of the Act, 43 U.S.C. § 1334(a)(1), provides:

“The Secretary shall administer the provisions of this Act relating to the leasing of the outer Continental Shelf, and shall prescribe such rules and regulations as may be necessary to carry out such provisions. The Secretary may at any time prescribe and amend such rules and regulations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf, and the protection of correlative rights therein, and, notwithstanding any other provisions herein, such rules and regulations shall apply to all operations conducted under a lease issued or maintained under the provisions of this subchapter. In the enforcement of conservation laws, rules, and regulations the Secretary is authorized to cooperate with the conservation agencies of the adjacent States. Without limiting the generality of the foregoing provisions of this section, the rules and regulations prescribed by the Secretary thereunder may provide for the assignment or relinquishment of leases, for the sale of royalty oil and gas accruing or reserved to the United States at not less than market value, and, in the interest of conservation, for unitization, pooling, drilling agreements, suspension of operations or production, reduction of rentals or royalties, compensatory royalty agreements, subsurface storage of oil or gas' in any of said submerged lands, and drilling or other easements necessary for operational production.” (Emphasis added.)

It is true, as plaintiffs argue, that the basic delegation of authority is to administer the leasing provisions of the Act and that these deal with exploration for and extraction of oil and gas and sulphur. But it is also true that, in authorizing the Secretary to issue regulations, the Act speaks of “conservation of the natural resources of the outer Continental Shelf,” not just of conservation of oil, gas, sulphur and other mineral resources. We cannot conclude that the later language, permitting suspension of leases “in the interest of conservation” is confined to conservation of oil and gas as plaintiffs urge, even though the sentence also refers to “unitization, pooling, drilling agreements ... reduction of rentals or royalties, compensatory royalty agreements, subsurface storage of oil or gas . . . ” all of which do relate primarily to conservation of oil and gas. We think that the phrase “in the interest of conservation” refers back to the earlier phrase which we have quoted.

The phrase “conservation of the natural resources of the outer Continental Shelf” is, on its face, broader than the meaning that plaintiffs would give it. Its natural meaning would encompass all such resources, not just oil and gas, sul-phur and other minerals.

The OCS Act was originally introduced in Congress as Title III of the Submerged Lands Act, 67 Stat. 29, May 22, 1953. See 1953 U.S.Code Cong. & Admin.News 2177 ff, quoting S.Rep. 411, H.Rep. 413, Conf.Rep. 1031, 83rd Cong., 1st Sess. (1953). It was stricken from that Act, but reintroduced in the same form and ultimately adopted on August 7, 1953. In the legislative history, it is still referred to as Title III of the Submerged Lands Act, although it was finally adopted as an amendment to the Submerged Lands Act. It is clear, however, that the two Acts are in pari materia.

Section 2(e) of the Submerged Lands Act (43 U.S.C. § 1301(e)) provides

“The term ‘natural resources’ includes, without limiting the generality thereof, oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges., kelp, and other marine animal and plant life but does not include water power, or the use of water for the production of power.”

We think it entirely reasonable for the Secretary to conclude that the OCS Act, in § 5(a)(1), uses the phrase “natural resources” in the sense in which it is defined in Section 2(e) of the Submerged Lands Act.

If there were still any doubt in our minds that the Secretary’s range of choices includes suspension to conserve the natural resources of the outer continental shelf as thus broadly construed, those doubts would be removed by the National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. §§ 4321-4347 (NEPA). That Act provides in § 102, 42 U.S.C. § 4332:

“The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, . . . ”

In Calvert Cliffs’ Coord. Com. v. United States A. E. Comm., 1971, 146 U.S. App.D.C. 33, 449 F.2d 1109, 1112-1113, the court said:

“NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department. . . . This compulsion is most plainly stated in Section 102. Congress also ‘authorizes and directs’ that ‘(2) all agencies of the Federal Government shall’ follow certain rigorous procedures in considering environmental values. Senator Jackson, NEPA’s principal sponsor, stated that ‘ [n] o agency will [now] be able to maintain that it has no mandate or no requirement to consider the environmental consequences of its actions.’ He characterized the requirements of Section 102 as ‘action-forcing’ and stated that that ‘[otherwise, these lofty declarations [in Section 101] are nothing more than that.’ ” (Footnotes omitted.)

In that case, the court held that NEPA compelled the Atomic Energy Commission to consider environmental matters, although the Atomic Energy Act contained no such requirement. (State of New Hampshire v. Atomic Energy Commission, 1 Cir., 1969, 406 F.2d 170, 175.) See also Zabel v. Tabb, 5 Cir., 1970, 430 P.2d 199, 211; Natural Resources Defense Council, Inc. v. Morton, D.C.Cir., 1972, 148 U.S.App.D.C. 5, 458 F.2d 827, 836, which deals with NEPA and the OCS Act.

4. The Secretary’s Order is Within the Range of Choices Available to Him

There remains, however, a second question: could the Secretary suspend operations under the plaintiffs’ leases for the reasons that he has invoked in this case, i. e., was this particular action within the range of choices available to him? Plaintiffs urge that it was not. They point out that the leases were made in full conformity with the OCS Act, that one purpose of the Act was to develop the resources of the outer Continental Shelf, particularly oil and gas, that the leases themselves contemplate, and indeed require, the plaintiffs to drill. They add to this the fact that the statement of the Geological Survey, on which the Secretary relied, shows that, if drilling is to be done, the ecological risks are acceptable. Finally, they point out that the Secretary himself recognizes that, under these circumstances, only Congress can permanently prevent drilling by cancelling the leases and paying the plaintiffs for their value. In essence, their argument is that the Secretary cannot suspend the leases to give himself a chance to persuade Congress to do what he now thinks ought to be done.

The argument is a powerful one, but we are unable to accept it. As we construe the OCS Act and NEPA, the Secretary has a continuing duty to guard all the resources of the outer Continental Shelf. After the leases in question were made, events occurred in the Santa Barbara Channel that were both unexpected and very dangerous to the environment. These caused the Secretary to reconsider the dangers to the natural resources of the area if drilling were to proceed under the leases.

On April 20, 1971, the Secretary sent to the Speaker of the House a letter, a proposed bill, and an environmental impact statement. In his letter, the Secretary recites the actions taken by him after the January 1969 blow out in the Santa Barbara Channel, and continues:

“At the same time, a second major action was taken. An order was signed which converted the existing two-mile buffer opposite the Santa Barbara State Oil Sanctuary into a permanent ecological preserve. Until this order was signed, the area which covers 21,000 acres, had no special legal status.
The enclosed bill proposed a more permanent solution to the problem. It would terminate 35 of the Federal leases and place the area covered by them, as well as certain other adjacent areas, into a National Energy Reserve. The reserve shall be available for lease only as determined by the President.
We believe that the proposed bill offers an equitable solution to the problem created by the ‘blowout’ in the Santa Barbara Channel area of the Outer Continental Shelf. It recognizes and protects the important environmental values of the Santa Barbara Channel, offers a mechanism for determining and paying, just compensation to the lessees and preserves the resources.
In support of a similar Departmental proposal introduced in the 91st Congress, President Nixon stated:
‘ . . . This proposal for Santa Barbara illustrates our strong commitment of use of offshore lands in a balanced and responsible manner This recommendation is based on the belief that immediate economic gains are not the only, or even the major, way of measuring the value of a geographic area. The ability of that area to sustain wildlife and its capacity to delight and inspire those who visit it for recreation can be far more important characteristics. This proposal recognizes that technology alone cannot bring national greatness, and that we must never pursue prosperity in a way that mortgages that nation’s prosperity.’ ”

The Bill, however, did not come to a vote. A second suspension order was issued in April of 1973. The parties have stipulated that its validity will be controlled by our disposition of this case. Under date of April 18, 1973, the Secretary re-submitted the bill. In his letter (Cong.Rec. — Senate, S-10464, June 6, 1973) he said:

“ . . . The Department’s geologic and environmental analysis initiated following the blowout led to conclusions which, in light of the subsequent enactment of NEPA, required that the Department review the implications of operations on existing leases. Moreover, in the course of this review the Department also considered the existing energy crisis and the present pressing need for oil and natural gas. As a result of this review, it has been determined, on a balancing of all national interests, that the overall benefits to the Nation from the establishment of a National Energy Reserve as this bill provides, would outweigh any anticipated benefits which would come from permitting the present development of oil and gas deposits pursuant to these leases. Such a National Energy Reserve would complement both the Federal Ecological Preserve and the adjacent buffer zone and would protect the unique environmental and recreational qualities of the Santa Barbara Channel and the four channel Islands, which during the 92nd Congress were included in a proposal to establish a Channel Islands’ National Park.”

The bill was introduced in the Senate on June 6, 1973. So far as we are advised, it is still pending.

When the suspension order in question was made, drilling had not yet begun on the leases in question. In such circumstances, the fact that the leases might be terminated is highly relevant to an evaluation of the risks involved. For example, even if the threat to the marine environment were grave, the Secretary might be justified in refusing to order a suspension of operations if it were certain that drilling would eventually take place and there were no reason to believe that the risks would decrease with the passing of time. On the other hand, if there were a good possibility that drilling would have to be abandoned, it would certainly be rational for the Secretary to decide not to run the risk of substantial environmental damage, even if that risk were not acute. This is particularly true when, as the Geological Survey statement observes, the plugging of wells itself poses a risk of ecological damage. It would make little sense to require the Secretary to ignore reality by always assuming that a leased field will eventually be developed.

The fact that the bill in question was recommended by the Secretary does not affect this analysis. It cannot be seriously contended that he has no power to recommend legislation. Indeed, NEPA seems to require that he do so when he believes that legislation is necessary to enable him to carry out his duties under that Act. See § 103 and § 102(2) (C), 42 U.S.C. § 4333 and § 4332(2) (C). It would be a strange rule of law to insist that the Secretary’s right hand ignore what his left hand is doing. There is nothing to support the plaintiffs’ fears that the Secretary will use this procedure as a bootstrap method of discontinuing the off-shore exploration and drilling program entirely. Should such abuses occur, they can be dealt with in an appropriate case. We think that, given the fact that drilling had not yet begun and that it might have to be abandoned, the Secretary’s evaluation of the environmental risks cannot be called arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

We do not hold that the Secretary can continue to issue comparable orders one after another and justify them by repeatedly having his proposed legislation introduced in the Congress. It is arguable that at some point, if Congress does not act, there must be an end to the matter. The parties’ stipulation precludes our considering whether that point had been reached when the first suspension order expired in January of this year. We express no opinion as to whether such a point would be reached if and when the order presently in effect expires without congressional action. If that happens, and if the Secretary then should issue another suspension, that would be a new and different case.

The judgment is reversed.

CHAMBERS, Circuit Judge

(concurring) :

In my view, the second suspension order is before us only to demonstrate that our case, which is limited to the first suspension order, is not moot simply because it has expired by its terms.

The second suspension order is the subject of a second action pending in the district court arid is not here on appeal.

I think the rationale of Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L. Ed. 865 (1920), justifies the first suspension order. I have my doubts about the second one, but that is not before us. Surely, as Judge Duniway indicates, the time arrives when enough is too much.

BOLDT, District Judge

(concurring):

I concur in the opinion of Judge Duniway and also in the concurring comments of Judge Chambers.

Under the circumstances existing at and before the expiration of the first suspension order and continuing to exist at this time, Ithink it might be shown upon full hearing and consideration by the district court that the second suspension was arbitrary, capricious and discriminatory. Among the matters which might be relevant and material in such a hearing are: (1) more than five years have passed since appellees paid approximately $153,000,000.00 for the leases in question, without as yet having been permitted to exercise their leasehold rights, arguably in violation of constitutional rights; (2) in oral argument appellees’ counsel stated, without contradiction, that a considerable number of other lessees have been allowed to continue drilling for and extracting oil from lease sites in the Santa Barbara Channel during the suspension period applicable to appellees’ leases; (3) the express purpose for which the Secretary of Interior is authorized to grant oil and gas leases under the Outer Continental Shelf Lands Act, enacted in 1953, is stated in section 8(a): “In order to meet the urgent needs for further exploration and development of the oil and gas deposits of the submerged land of the outer Continental Shelf” (emphasis added); (4) the 92nd Congress failed to act and thus far the 93rd Congress appears disinclined to act on the legislation proposed by the Secretary of the Interi- or to terminate these leases; and (5) the existing extremely critical national and international energy crisis.

In view of the circumstances suggested above and others that the parties might present, in my opinion the stipulation of counsel referred to by Judge Duniway, approved without hearing in the district court, now appears to have been improvident and might be held contrary to emergent national interests and vital public policy. In my view the validity of the stipulation and the right of the appellees to challenge the second suspension order on any available legal and factual basis ought to be heard and determined by the district court in the case now pending in that court.

OPINION ON PETITION FOR A REHEARING

DUNIWAY, Circuit Judge.

Upon consideration of appellees’ peti-tition for a rehearing and of appellants’ response, we have partially revised our views about this case as follows:

First: The Secretary’s order of April 21, 1971, which is under attack in this case, recites that it “shall terminate on January 2, 1973.” The order was justified on the ground that its purpose was “to permit the Congress to consider pending legislation for the termination of thirty-five leases. . . . ” The 92nd Congress adjourned, sine die, on October 18, 1972 (86 Stat. 1588), without taking any action on the Secretary’s proposed legislation. While we continue to be of the opinion that the Secretary’s order was valid when made, we now hold that its only raison d’etre vanished on October 18, 1972, and it became invalid on that day. The second session of the 92nd Congress is the fourth session of the Congress to which the Secretary’s bill has been presented. Nothing substantial was done at any session to push the bill; no action was taken by the Congress at any session. Four tries are enough. We are therefore also of the opinion, and hold, that the Secretary’s authority to suspend the leases to enable the Congress to consider the particular legislation that he had presented to the 92nd Congress vanished on October 18, 1972. The statutes involved do not give the Secretary carte blanche to continue suspending the leases until he finds a Congress that will accept his proposal. The new judgment to be entered should declare the validity of the April 21, 1971 order until October 18, 1972, and that it became invalid thereafter.

Second: The judgment appealed from was stayed by the district court on July 31, 1972. The stay was to terminate on January 2, 1973, or sooner if the judgment became final. Thus, technically, there was no stay after January 2, 1973. However, the Secretary issued a new suspension order on April 18, 1973, which has not been stayed. Thus, as a practical matter, the rights of appellants to drill under their leases have been continuously suspended since April 21, 1971.

The April 21, 1971 order provides: The term of the foregoing leases shall be extended by a period equivalent to the period of suspension in accordance with 43 CFR 3305a.4. Under the provisions of 43 CFR 3303.5 no payment of rental or minimum royalty will be required for or during the period of suspension.

That provision was valid and was effective until October 18, 1972.

The suspension order of 1973, however, contains no provision extending the terms of the leases. It does provide, however:

No payment of rental or minimum royalty will be required for or during the period of suspension, 43 CFR 3303.5.

The trial court held that, if the Secretary lacks power to suspend operations under the leases under the circumstances, “the Secretary does not have the power to extend the leases in question unless ordered by the Court so to do in order to effect equity.” We agree. We have held that the Secretary’s power to suspend for the reasons given by him expired on October 18, 1972. We hold that equity requires that the original term of each lease be extended by the entire time during which the Secretary’s orders have purported to be effective. In addition, by reason of the stipulation of the parties appearing at pages 389-390 of the record, appellees are entitled to an additional extension of 183 days.

We also hold that the quoted provisions of the two orders of the Secretary relating to payment of the minimum rental or royalty should be enforced in the judgment.

Third: As Judge Chambers pointed out in his concurring opinion, the validity of the Secretary's new order of April 18, 1973 is not directly before us. The stipulation referred to in our opinion was made in another case, and was appropriately before us to show that this case is not moot. It appears to us, however, that under the stipulation in the action attacking that order, the effect of our holding is that the Secretary’s April 18, 1973 order is also invalid. This litigation ought to be terminated. That can be accomplished by consolidating action No. 73-1302-FCW, pending in the district court, with this action, and entering a single new judgment in the two actions.

Fourth: Although it is unnecessary for us to do so in the light of our holding, we note that appellees have brought to our attention the fact that on November 13, 1973, the Secretary, acting through the Assistant Secretary for Energy and Minerals, advised the Senate Committee on Interior and Insular Affairs that his proposed legislation should not be enacted “at this time.” He based this action on the existing energy crisis, on the enhancement of the Department’s capability for regulating Outer Continental Shelf Operations, and on improvements in offshore drilling and production technology. If we are in error in holding that the order of April 2, 1971, and the Secretary’s power to make such an order, expired on October 18, 1972, it is clear to us that his power to make such an order was fully spent not later than November 13, 1973, when the Secretary himself abandoned the sole basis upon which his orders purported to rest. This is an additional reason why this litigation and the companion case pending in the district court should be terminated.

The petition for a rehearing is denied.

The judgment appealed from is vacated, and the case is remanded to the district court with directions to consolidate this action with action No. 73-1302-FCW pending in that court, and for further proceedings consistent with this opinion.

      . When the new order was issued, the plaintiffs filed a new action attacking its validity-on June 8, 1973. On June 11, they stipulated that the issues in that action are the same as in the present action, and :
      “3. That the Gulf case is controlling for the reasons set forth above and that the parties will be bound by the final judgment of that case in the manner as set forth hereinafter:
      (a) If the final judgment in the Gulf case affirms the judgment of the District Court in that ease on all points, then a judgment shall be entered forthwith by the District Court in this case providing that the 1973 Suspension Order is vacated and set aside and that the initial terms of the leases be extended for the period of time, if any, between the entry of final judgment in the Gulf case and the entry of final judgment in this action.
      (b) If the final judgment in the Gulf case reverses the District Court’s decision therein on all points without remanding any issues and affirms the validity of the suspension order under attack there, judgment will be entered by the District Court in this case declaring the validity of the 1973 Suspension Order and dismissing the foregoing complaint with prejudice.
      (c) If the final judgment in the Gulf case affirms paragraphs 1 and 3 of the District Court’s judgment and conversely reverses, without remanding paragraph 2, then judgment in this case shall forthwith be entered and shall provide the relief described in paragraph 3(a) above;
      (d) If the judgment of the Appellate Court in the Gulf ease affirms, reverses or remands any paragraph or any combination of the paragraphs or portions thereof not specifically referred to above, of the Gulf District Court’s judgment, the final judgment in Gulf of those issues will govern any judgment entered therein.”
      (Supp. Tr. Stipulation, page 2, line 25, to page 3, line 21.)


author: FAIRCHILD, Circuit Judge. KILKENNY, Senior Circuit Judge

text:
    Charles THOMAS ,Plaintiff-Appellant, v. Warden Frank J. PATE et al., Defendants-Appellees. Luther W. MILLER, Plaintiff-Appellant, v. ILLINOIS DEPT. OF CORRECTION, ILLINOIS STATE PENITENTIARY, Warden Frank J. Pate, Defendants-Appellees.
    Nos. 71-1410, 71-1411.
    United States Court of Appeals, Seventh Circuit.
    Jan. 10, 1974.
    Rehearings Denied April 4, 1974.

      Lynne E. McNown, Jerold S. Solovy, Chicago, 111., for plaintiffs-appellants.
    William J. Scott, Atty. Gen., Thomas E. Holum, James B. Zagel, Melbourne A. Noel, Jr., Asst. Attys. Gen., Chicago, 111., for defendants-appellees.
    Before FAIRCHILD, Circuit Judge, KILKENNY, Senior Circuit Judge, and STEVENS, Circuit Judge.'

       Senior Circuit Judge John F. Killenny, of the Ninth Circuit, is sitting by designation.

   FAIRCHILD, Circuit Judge.

Plaintiffs Thomas and Miller are black inmates incarcerated in the Illinois State Penitentiary at Joliet, Illinois. They appeal from a judgment entered in favor of defendant prison officials in three consolidated actions. These suits were brought under 42 U.S.C. § 1983 seeking injunctive and monetary relief for alleged violations of plaintiffs’ civil rights. Plaintiffs assert that prisoners are housed in racially segregated cells; that because of their race, black prisoners are afforded less desirable job and educational opportunities than other prisoners; that conditions in the disciplinary cells constitute cruel and unusual punishment; that plaintiff Thomas was denied procedural due process in intra-prison disciplinary proceedings; that plaintiff Thomas was punished for his refusal to admit guilt; that plaintiff Thomas was denied proper medical care; that plaintiff Thomas was denied reasonable access to the courts; and that' defendants violated the equal protection clause by their method of distributing underwear to prisoners.

On appeal, plaintiffs argue that they were denied a fair hearing by the district court’s refusal to permit them to address the court directly despite plaintiffs’ express dissatisfaction with court-appointed counsel; that the district court erred in finding there is no racial discrimination at the prison; and that the district court should not have dismissed various portions of the Thomas complaint for failure to state a claim upon which relief can be granted.

It appears from the complaints that plaintiffs attempted to bring these actions on behalf of a class consisting of all black inmates incarcerated in the prison. The district judge found that plaintiffs are not representative of any group of prisoners confined in the prison. We do not review the appropriateness of this finding because plaintiffs have not raised this issue on appeal.

1. Racial Discrimination in Composition of Cells.

The racial composition of the prison at the time of trial was 60.2% black and 39.8% Caucasian and other minorities. The general population is housed in one-man, three-men, six-men, and twelve-men cells; prisoners confined in punitive status are housed in twelve-men cells.

Each cell-block houses a racially mixed population of prisoners. However, the uncontradicted testimony of plaintiffs reveals that it is and has been in the past extremely unusual for a black prisoner to share a cell with a Caucasian or a prisoner of another race. Cellhouse charts maintained by prison officials record the racial composition of each cell but were not introduced at trial.

Unfortunately the paucity of evidence in the present record with regard to prison policies governing cell assignments for incoming prisoners and prisoners’ cell transfer requests precludes us from determining whether the existing condition of segregation is attributable to the state, so that violation of the equal protection clause of the fourteenth amendment is demonstrable. See generally Comment, School Desegregation After Swann: A Theory of Government Responsibility, 39 U.Chi.L.Rev. 421 (1972).

The evidence is insufficient to determine without speculation whether cell assignments of new inmates prior to 1966 were made without regard to race or were designed to preserve racially homogenous cells. Mr. Shea, a prison official, testified that the first attempt affirmatively to create racially balanced cells by considering race in assigning new inmates occurred about 1966. The only other relevant evidence is defendants’ ambiguous admission in the amended and reinstated answer that at “various times in the past,” incoming inmates have been assigned cellmates by “considering racial characteristics among others.”

It is also not clear whether prior to 1966 the prison honored a request of an inmate to transfer from a cell in which all the occupants were members of his race to a cell housing inmates of other races. Testimony of Mr. Shea on transfer policies relates to time periods subsequent to 1966. Plaintiff Thomas submitted a verified document containing a conclusory allegation that requests to transfer are routinely denied.

Mr. Shea’s uncontradicted testimony indicates that between 1966 and 1968, prison officials considered race in assigning cells to incoming inmates in order to obtain racially balanced cells. No statistics have been introduced to indicate the extent of this effort or the proportion of inmates presently incarcerated who were affected by this policy change.

During this period, prison officials attempted to discourage prisoners from transferring in order to avoid living in racially integrated cells. There is, however, no evidence indicating the number of prisoners who insisted upon transferring to racially segregated cells. It does not appear that defendants adopted a program of reassigning prisoners placed in segregated cells prior to 1966, and continuing therein.

The record is uninformative about prison practices with respect to assignment and transfer subsequent to 1968. Mr. Shea indicated that because of an incident within the prison at the time that Dr. Martin Luther King died, the authorities became more reluctant to interfere with prisoners’ choices of cellmates. There is no testimony as to whether the policy at the time of trial was to ignore race in assigning incoming inmates to cells or whether race was considered either with the objective of maintaining racially segregated or racially balanced cells. Transfer policies are not clearly revealed.

In Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), the Supreme Court affirmed the order of a three judge district court declaring that Alabama statutes requiring racial segregation in prisons are unconstitutional and establishing a schedule for desegregation. In Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972), the Court cited Lee for the principle that “racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for ‘the necessities of prison security and discipline.’ ” See also, United States v. Wyandotte County, Kansas, 480 F.2d 969 (10th Cir. 1973).

Assuming (although we have noted that it is not clear) that recent policy has not tended to produce racial segregation, there would remain a question of the extent of the duty of defendants to remedy segregation which is a residue of pre-1966 policy, if unlawful.

In instances involving past de jure segregation in schools, the authorities have an affirmative obligation to dismantle the former system. See Swann v. Bd. of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1970), reh. denied 403 U.S. 912, 91 S.Ct. 2200, 29 L.Ed.2d 689; Green v. New Kent County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Keyes v. School Dist. No. 1, Denver, Colorado, 413 U.S. 189, 220-223, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) (Powell, J., concurring).

It is our opinion that a similar affirmative duty applies with respect to a past practice of racial segregation in a prison. Although there may be relevant differences between the prison and school situations in terms of risk of racial conflict, potential for violence, and compelled proximity between individuals, and between the rehabilitative and educational purposes served, the principle that intentional segregation is unlawful yields only to “the necessities of prison security and discipline.” Lee and Cruz, supra. We think the corrollary that there is an affirmative duty to remedy past unlawful practice would yield only to similarly compelling interests.

It can not be determined from the record in this case whether some of the prisoners, for example those remaining in cells assigned prior to 1966, were there as the result of policies pursued under color of law, or, in other words, of de jure segregation similar to that declared unconstitutional in Lee v. Washington, supra.

Assuming the affirmative, defendants must show that they satisfied the affirmative duty to remedy the past practice. In practical terms, they may find it necessary to establish that they have effectuated some degree of actual integration in the prison; for any showing other than the objective fact of actual integration at the present is unlikely to persuade either the members of the prison community or the courts that prison officials have abandoned unconstitutional prior practices of compulsory racial segregation. See Hobson v. Hansen, 269 F.Supp. 401, 494-495 (D.C.1967), appeal dismissed, 393 U.S. 801, 89 S.Ct. 40, 21 L.Ed.2d 85. But see Boyd v. Pointe Coupee Parish School Bd., 332 F.Supp. 994 (E.D.La.1971). Once again the paucity of evidence in the record precludes us from resolving these issues.

The record establishes that at the time of the commencement of this action, there was virtually complete separation of inmates according to race in cells of the prison. As we have noted, it has not been demonstrated whether the existing condition of racial separation is the result of intentional segregative policies of prison authorities or whether it stems from the interaction of otherwise permissible, racially neutral policies with social conditions for which prison authorities are not responsible. Under these circumstances, the question is whether plaintiffs have established a prima facie case shifting the burden of proof to defendants.

The district court, in finding adversely to plaintiffs, apparently concluded that plaintiffs’ burden extended beyond establishing an existing condition of racial separation.

We recognize that in Keyes, supra, the Supreme Court indicated that plaintiffs must establish more than an existing condition of racial separation in a school system before the burden is shifted to school authorities to produce evidence that the condition is not chargeable to the state. In addition, some showing must be made of a pattern of past ■ or present intentional segregation. Keyes, supra, 413 U.S. at 209-210, 93 S.Ct. 2686.

We are not bound to apply the allocation of proof developed in Keyes in prison segregation cases. The Supreme Court in Keyes emphasized that “[tjhere are no hard and fast standards governing the allocation of the burden of proof in every situation” and that instead allocation of proof questions should be resolved as a matter of “ ‘policy and fairness based on experience in different situations.’ IX Wigmore, Evidence § 2486 (3d ed. 1940).” Its conclusions with respect to allocation of proof are limited explicitly to “the context of racial segregation in public education.” Keyes, supra, at 209, 92 S.Ct. at 2698.

In the prison context, as contrasted with the public schools, we think there is a higher probability that a pervasive pattern of racial separation in cell occupancy is attributable to intentionally segregative actions for which prison officials are constitutionally accountable. Moreover, it is more difficult for prisoners to obtain and present evidence relevant to segregative intent of prison authorities than for persons challenging segregation in the public schools.

For these reasons we conclude that the burden shifts to the defendant prison authorities once the plaintiffs have demonstrated an existing condition of racial separation in prison cells and that the district court erred in finding adversely to plaintiffs on the basis of their failure to prove the ultimate fact.

2. Racial Discrimination in Work Assignments.

The district court found that plaintiffs failed to demonstrate that prison officials discriminate against black inmates in making work assignments. We conclude that this finding is not clearly erroneous.

Plaintiffs contend that menial porter and cleaning jobs are performed by black inmates while white inmates are assigned more desirable clerical positions. Mr. Shea testified, however, that job assignments are made by considering an inmate’s educational level, his ability and skills, his other job experiences in the prison, his prison “seniority” (the length of time spent in prison), and his disciplinary record. He further testified that race is considered only in attempting to maintain a racial balance in all jobs. The only statistics introduced as to racial distribution of jobs do not indicate a pattern of racial discrimination. We note that plaintiff Thomas testified that he is satisfied with his job in the furniture shop. Plaintiff Miller complains about his inability to attend “TV College;” however, he was informed that his requests were denied because of his lack of seniority and his disciplinary record, and he is not certain himself whether the denial was based upon his race.

3. Plaintiffs’ Opportunity to be Heard.

Plaintiffs urge that they were denied a fair opportunity to be heard by the district court’s refusal to permit them to speak for themselves after they had informed the court about their dissatisfaction with appointed counsel. Specifically plaintiffs claim that it was error not to permit plaintiff Thomas to “assist” his attorney by cross-examining one of the defense witnesses and by summarizing applicable law. Plaintiffs also bring to our attention the district judge’s denial of Miller’s request to file an amended petition and of Thomas’ request to supplement his testimony. These latter rulings do not appear to have involved error or abuse of discretion. In any event, the rulings were not affected by the relationship between plaintiffs and their attorneys.

A plaintiff in a civil action, as contrasted with a defendant in a criminal prosecution, has no sixth amendment constitutional right to competent counsel. Nonetheless, plaintiffs in a civil proceeding, whether appearing pro se or represented by counsel, must be afforded a fair opportunity to present their case. We conclude that plaintiffs have been afforded such an opportunity here. Our review of the record indicates, that plaintiffs’ counsel were not incompetent, when tested by the standard of competency required of attorneys in criminal actions; that the district judge clearly informed plaintiffs that they must rely upon their counsel, when so represented, to present their case; that plaintiffs never requested that their court-appointed counsel be dismissed; and that in fact the district judge provided plaintiffs with considerable leeway in addressing the court directly.

4. The Failure of the Thomas Complaint to State Claims.

The district court dismissed several portions of plaintiff Thomas’ pro se complaint, prior to the appointment of counsel for Thomas, on the ground that the allegations failed to state claims upon which relief can be granted. The question is whether, accepting any factual allegations as true, “it appears ‘beyond doubt that plaintiff can prove no set of facts in support of his claim [s] which would entitle him to relief’ ” (citation omitted). Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). We proceed to consider each of thesé portions.

(a) Medical Treatment.

On appeal Thomas asserts that the court erred in dismissing his allegations concerning medical treatment. We note that the district court did not dismiss his allegation that black inmates receive lower quality medical treatment than white inmates. No evidence, however, was introduced on this issue at trial. «

It is well established as a general principle that prison officials are vested with broad discretion in determining the nature and character of medical treatment afforded to state prisoners. Henderson v. Pate, 409 F.2d 507, 508 (7th Cir., 1969), cert. denied 396 U. S. 914, 90 S.Ct. 233, 24 L.Ed.2d 191; United States v. Ragen, 323 F.2d 410, 412 (7th Cir., 1963). Courts have had difficulty in particular cases, however, in determining whether a prisoner plaintiff has stated a claim of deprivation of a federal constitutional right.

Such a claim is not stated where plaintiff alleges no more than that he is dissatisfied as to the adequacy of treatment actually received for a particular injury or ailment. Henderson, supra, 409 F.2d at 508. Courts will not attempt to second-guess licensed physicians as to the propriety of a particular course of medical treatment for a given prisoner-patient. See Cates v. Ciccone, 422 F.2d 926, 928 (8th Cir., 1970).

On the other hand, a claim of medical mistreatment rises to fourteenth amendment proportions when it asserts a refusal to provide essential medical care after a prisoner brings his medical complaint to the attention of prison authorities. (In the instant case we are not confronted with and do not express an opinion about whether the constitution requires prisons to provide preventive medical services not requested by inmates, e. g., regular physical examinations.) In the ultimate determination whether medical care was in fact essential, the question would be, we think, whether it had been proved that a physician exercising ordinary skill and care at the time of the request for medical care would have concluded that the symptoms of the prisoner evidenced a serious disease or injury; that the potential for harm by reason of delay or denial of medical care was substantial; and that such harm did result. In deciding at the pleading stage whether a claim has been stated, the court must consider whether the factual allegations of the complaint suggest the presence of these factors. See Stiltner v. Rhay, 371 F.2d 420, 421, n. 3 (9th Cir., 1967), cert. denied 386 U.S. 997, 87 S.Ct. 1318, 18 L.Ed.2d 346, reh. denied 389 U.S. 893, 88 S.Ct. 21, 19 L.Ed.2d 212; Coleman v. Johnston, 247 F.2d 273 (7th Cir., 1957).

We also think that it is sufficient to allege facts which suggest that the medical care provided is so clearly inadequate as to amount to a refusal to provide essential care or is so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition. See generally Cates v. Ciccone, 422 F.2d 926 (8th Cir., 1970); Mayfield v. Craven, 299 F.Supp. 1111, 1113 (E.D.Cal., 1969).

Turning to the complaint at bar, plaintiff Thomas first complains of the medical treatment afforded for an ear wound. He alleges that although his medical record reveals that he is allergic to penicillin and although he brought this information to the attention of the medical staff, the inmate nurse gave him a shot of penicillin. He further alleges that when he subsequently had an allergic reaction to the penicillin, the prison doctor, without examining him, concluded that no further treatment was needed. He also claims that he was placed in unsanitary punitive confinement while sutures were in his ear, that the date of removal of the sutures was delayed for the period of punitive confinement (fifteen days at a maximum), and that the result of this treatment was that his ear became infected. He acknowledges that this infection was subsequently treated.

We conclude that Thomas’ allegations concerning the administration of penicillin despite his known allergy to that drug and the allegations describing intentional delay in removing sutures while he was confined in unsanitary environs suffice to state claims for relief for intentional mistreatment likely to aggravate his condition. The district court erred in dismissing this portion of the complaint.

Thomas complains about the content of his meals which he alleges are 75% beans. He claims that he is allergic to beans; that he has informed prison authorities about this allergy; that his requests for alternative meals have been denied; and that he has been denied medical treatment for his skin condition resulting from eating beans.

We conclude that the district court should have required defendants to answer Thomas’ claim that prison authorities knowingly required him to choose between not eating at all or eating beans. Furthermore, his allegations concerning the refusal of the defendants to provide any medical treatment for his resulting skin condition should not have been dismissed.

Finally Thomas alleges that while confined in segregation, he began vomiting blood. He claims that despite his appeals for help, a doctor did not arrive for two hours. When he did arrive, the doctor prescribed medicine but would not X-ray plaintiff’s chest. (Thomas had a chest X-ray the previous year.)

We conclude that the district court properly held that the allegations describing the vomiting incident fail to state a claim upon which relief can be granted. There is no allegation that the delay in receiving medical treatment resulted in substantial harm. The difference of opinion between the doctor and prisoner-patient about the necessity for an X-ray is not of constitutional proportions.

(b) Inhumane Conditions in Punitive Confinement.

Thomas alleges that the punitive segregation units are foul-smelling, filthy, overcrowded, infested with insects and rodents, and inadequately lighted, heated and ventilated; more particularly that he was confined in cells housing ten to eleven prisoners with dimensions of twenty-one feet by ten feet; that the cell floors are made of rough, cold, and damp concrete; that the cells have no hot water and only one toilet; that in winter it is so cold that ice forms on the cell’s inner walls; that there are “roaches, ticks, millipedes, spiders, silverfish, centipedes, louses, and mice” in the cells; that each inmate is provided with one pair of pants, one shirt, one pair of thin cloth slippers, and four filthy blankets which are never washed; that only one meal per day is provided; that no exercise facilities are provided; and that the cell is enclosed by both a steel gate door and a wooden door, shutting out air and light.

Adams v. Pate, 445 F.2d 105 (7th Cir., 1971), decided appeals in two actions, one of which was brought by Miller, a plaintiff in the instant action. There we considered the conditions in disciplinary cells in the same penitentiary. We affirmed the dismissal of each complaint. It was held that Adams’ claim was properly dismissed because the complaint contained only general conclusory allegations unaccompanied by specific averments. Miller failed to state a claim because he did not allege “conditions ‘so foul, so inhuman and so violative of basic concepts of decency’ to fall within the proscriptions of the Eighth Amendment. (citations omitted)” Adams v. Pate, supra, at 109. It appears that neither case was maintained as a class action. Depending upon whether the order of the district court in Miller’s case specified that the dismissal was without prejudice, Miller may be barred by res judicata in the instant case from claiming that the conditions in disciplinary confinement are unconstitutional. See Rinehart v. Locke, 454 F.2d 313, 314 (7th Cir., 1971); IB Moore’s Federal Practice ¶ 0.409 [1], pp. 1006-1007.

Here, however, the detailed allegations of cruel and unusual punishment appear also in the complaint of plaintiff Thomas, who was not a party to either action in Adams v. Pate. The action of the district court below consolidating Thomas’ action with that of Miller, pursuant to Rule 42, F.R.Civ.P., does not deprive Thomas of his right to “a day in court” on this issue.

Adams v. Pate is distinguishable from the instant case in that the complaints there did not allege with specificity all of the conditions described in the complaint here; Adams alleged only that the segregation unit was “unsanitary”; Miller did not specify the number of prisoners confined in each cell, nor did he describe the ice on the interior cell walls, the insects and rodents in the cells, the absence of hot water, the inadequate clothing and filthy blankets, and the lack of proper food and exercise.

We do not attempt to determine here what specific conditions, if proved, would be sufficient when viewed in their entirety, to entitle Thomas to relief for violation of his eighth amendment rights. It suffices to conclude, as we do, that it can not be said that Thomas can prove no set of facts in support of his claim which would establish that living conditions in disciplinary cells are so foul, inhumane, and violative of basic concepts of decency as to constitute cruel and unusual punishment. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

(c) Denial of Release from Segregation until Confession of Guilt.

The complaint describes two instances . in which Thomas’ release from segregation into the general population was conditioned upon his agreeing to write letters to prison officials. The requested content of these letters is not alleged. Thomas argues that making the extent of punitive confinement depend on admission of misconduct is a deprivation of rights.

Thomas relies upon cases holding that persons convicted of crimes may not be subjected to harsher punishment because of their refusal to plead guilty and to waive trial, e. g., United States v. Wiley, 278 F.2d 500 (7th Cir., 1960). Even accepting the assertion that this principle applies with equal force to prison disciplinary proceedings, we think it inappo-site here. There is no claim that the length of Thomas’ confinement was extended by refusal prior to determination of guilt to waive rights to procedural due process or to admit that he had committed a rule infraction.

Instead, at most, it is alleged that prison officials considered Thomas’ refusal to admit his misconduct subsequent to the determination of his guilt. We are not aware of nor has he cited any authority for the proposition that it is unconstitutional or an abuse of discretion for a judge, in sentencing, to consider whether the defendant accepts responsibility for his criminal acts following the return of the guilty verdict.

We conclude that the district court properly dismissed these allegations.

(d) Due Process in Disciplinary Proceedings.

Thomas argues that the district court erred in dismissing his allegations of denial of procedural due process in disciplinary proceedings. Although the pro se complaint and supplement thereto do contain numerous recitations about Thomas’ incarceration in disciplinary cells at various times for infractions which he allegedly did not commit, it contains few affirmative allegations describing the disciplinary proceedings preceding these punishments. We cannot presume simply from the absence of such allegations that procedural due process was not afforded. Moreover, the district court properly dismissed Thomas’ conelusory and general allegations that conduct reports filed by officers are presumed to be correct and that there is a practice of punishing black inmates on the basis of secret incriminatory notes written by white inmates.

The complaint does contain some specific allegations which deserve closer consideration. Thomas alleges that following an incident in 1963, he was interviewed by a “mob” of prison officials and was subjected to oral and physical harassment when he asked to be confronted with the accusing officer and complaining witnesses. He was sentenced to ten days in isolation. Thomas further alleges that in 1964 he was punished without being informed of the charges against him; he was placed in isolation for three days. The complaint describes another incident when he attempted to explain to the prison “disciplinarian” that conduct reports were being filed against him because of his pending lawsuits. He claims that he was attacked by officials wielding blackjacks. Thomas’ complaint at least suggests that as a result of this incident and ensuing events, he was confined in isolation for fifteen days and deprived of six months of statutory good time.

In Miller v. Twomey, 479 F.2d 701, 718 (7th Cir., 1973), this court held that in any case involving a “grievous loss,” a prisoner is entitled at least to adequate and timely written notice of the charge, a fair opportunity to have written notice of the charge, a fair opportunity to have witnesses called or interviewed, a fair opportunity to explain, and an impartial tribunal. Thomas’ complaint adequately alleges deficiencies in the disciplinary proceedings described above, when measured against these minima.

The question remaining is whether the punishment imposed was sufficiently severe to bring the due process requirement into play. We recognize that prisoners in the general population live without many of the amenities and freedoms taken for granted outside prison walls. But confinement in isolation often entails deprivation of remaining highly valued rights and privileges enjoyed by inmates in the general population.

The alleged deprivation of statutory good time and punitive confinement for fifteen days clearly constitute a “grievous loss.” Miller, supra, at 715; Knell v. Bensinger, 489 F.2d 1014, p. 1018 (1973).

In order to determine whether confinement in isolation for three days or ten (each of which is alleged) is sufficiently severe, the conditions of confinement must be scrutinized. See Miller, supra, 479 F.2d at 717. For present purposes, we must accept as true Thomas’ allegations, set out in part 4(b) of this opinion, concerning the conditions of confinement. We conclude that a prisoner so confined for three days or more (and possibly for fewer) suffers a “grievous loss.”

Furthermore no extraordinary circumstances have been alleged which indicate a need for “prompt decisive action” by the state. Miller, supra, at 717.

Accordingly, the district court erred in dismissing these specific allegations concerning denial of procedural due process in disciplinary proceedings.

(e) Denial of Access to the Court.

Thomas argues that he stated a claim by alleging that prison officials confiscated his legal materials intended for the courts and refused to mail his letters to attorneys. In addition, Thomas brings to our attention his allegations regarding postage.

Several of these allegations were contained in documents filed with the district court prior to entry of the order granting defendants’ motion to dismiss; we consider these allegations first. The complaint and the accompanying “supplement” do not allege with particularity any incident when officials confiscated or refused to mail letters or legal documents.

Thomas alleges that he was required to pay an amount of postage which in fact he could afford; but that inmates confined in other Illinois prisons do not have to pay postage. This fails to state a claim for denial of reasonable access to the courts since Thomas could afford to pay the postage for his documents. Furthermore, even when liberally construed, Thomas’ complaint fails to state a claim under the equal protection clause. He has not alleged whether the other prisons providing inmates with postage are maximum, medium, or minimum security institutions, nor whether earnings or allowances are comparable. It may be that free postage is offered only to those in a class which is distinguishable from Thomas’ on a rational basis.

Thomas further alleges that he was told by a prison official that he must provide a copy of a legal document to the warden before it would be mailed to the court. The outcome is not alleged, nor is there a claim that the requirement reflects a general policy at the prison. Failure to address this claim in argument indicates that it is not seriously pressed, and we do not reach it.

After the entry of the order dismissing in part the original complaint, Thomas filed a second complaint entitled “complaint for relief for injuries of suppression.” This document contains the allegations that particular legal papers were confiscated and not mailed.

Under Rule 15(a), F.R.Civ. P., a party may amend its pleading once as a matter of course prior to service of a responsive pleading. In this circuit, a motion to dismiss is not such a responsive pleading. Fuhrer v. Fuhrer, 292 F.2d 140, 141-142 (7th Cir., 1961). Accordingly, Thomas then had the right to amend his original complaint without leave and the allegations in the “complaint . . . for suppression” should have been considered as a part of his pleadings. From the failure of plaintiffs to attempt to adduce evidence in support of these allegations at trial and from the failure of defendants to file a responsive pleading as required under Rule 15(a), it appears that this amendment to the pleading was overlooked. On remand, the district court should establish an orderly procedure permitting defendants to respond to the “complaint for relief of injuries of suppression.”

(f) State Furnished Apparel.

Plaintiff Thomas alleges that inmates at the prison who are under forty are not given free long underwear, while inmates over forty, as well as inmates of any age at other Illinois prisons, are supplied with free long underwear. We can not say that the differences in treatment between older and younger inmates within the prison are arbitrary. Furthermore Thomas has not alleged whether the other prisons providing free long underwear to all prisoners are maximum, medium, or minimum security institutions nor whether, at the other prisons, a prisoner’s earnings or allowances are comparable. It may be that free long underwear is made available only to a class which is distinguishable on a rational basis. Also, physical conditions in the other prisons may be different so that inmates confined therein have a greater need for long underwear. We conclude that Thomas’ general allegation does not raise a constitutional claim.

5. Summary.

Plaintiffs are entitled to a new trial of the issues dealt with in part 1 of this opinion. The complaint of Thomas is to be reinstated with respect to the claims determined to have been erroneously dismissed in parts 4(a), (b), and (d) of this opinion, and further proceedings should be had on those claims. As indicated in part 4(e) of this opinion, a supplementary complaint of Thomas appears to have been overlooked. It should be deemed an amendment properly before the court, and further proceedings had accordingly.

The judgment appealed from is reversed, and the causes remanded for further proceedings consistent with this opinion.

KILKENNY, Senior Circuit Judge

(concurring and dissenting):

The record, in my opinion, supports the district court’s finding that appellants failed to prove an existing pattern of racial segregation or discrimination in connection with prisoner cell assignments. Consequently, I would not disturb that finding. Moreover, I do not believe the Thomas charge relative to appellee’s alleged failure to provide adequate medical treatment is sustained by the evidence. In my view, appellee’s conduct in this area did not amount to a refusal to provide essential medical care, nor was it so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate appellant’s condition.

Otherwise, I fully concur in the majority opinion.

ON PETITION FOR REHEARING

In seeking rehearing, defendants rely, with respect to the issue decided in Part 1 of the opinion, Racial Discrimination in Composition of Cells, on O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) decided by the Supreme Court after our decision in this case.

Defendants claim that here, as in O’Shea, the complaint failed to allege an actual case or controversy with respect to this issue.

The complaints here did allege that the defendants have practiced racial discrimination by requiring plaintiffs to occupy cells with other black inmates and have refused to integrate such cells thereby depriving plaintiffs of their civil rights and equal protection. We not only treated the complaints as alleging an intentional practice of racial segregation, but concluded that the plaintiffs had established a prima facie case and that the burden shifted to defendants.

Defendants’ present point, seeking to rely on O’Shea, is that a black inmate’s allegation that the prison officers intentionally practice racial segregation in making cell assignments does not fulfill the “real injury,” case or controversy, requirement of Article III of the Constitution. They suggest that it is essential for a black inmate specifically to allege that he had been refused permission to cell with a person of another race, or had suffered some other “specific” injury.

In O’Shea, plaintiffs were black citizens and white citizens of Cairo, I11L nois. The complaint alleged that defendants, a magistrate and judge, were administering the criminal justice system in a racially discriminatory manner with respect to sentencing and other matters. Although some of plaintiffs had formerly been defendants and allegedly subjected to the discriminatory practices, none was currently so, and “the prospect of future injury rests on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.”

The Court held that “the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the ‘case or controversy’ requirement and permit adjudication by a federal court.” At 498, 94 S.Ct. at 677.

We conclude that the O’Shea holding does not preclude jurisdiction of a claim by a black inmate of a prison, currently living in a racially segregated cell, that defendant prison officials intentionally maintain racially segregated cells. Placing and keeping him in that cell for that purpose is the present injury which was lacking in O’Shea. There is nothing remote about the impact of intentional segregation on plaintiffs, if that policy exists, for they are compelled to live from day to day and night to night in the assigned places.

That there is a present injury to an inmate, intentionally segregated because of his race, is particularly clear if the inmate is black. Because of the relatively small size of the prison community, its closed nature, and the numerous facets of prison life subject to regulation, any racially discriminatory action by prison officials is likely more effectively to create a badge of inferiority for black inmates than would necessarily attach to minority residents of a city as the result of discriminatory action outside prison walls. Indeed plaintiff Miller’s pro se complaint explicitly alleged that the maintenance of a segregated institution “foster [s] an atmosphere of racial inferiority ... to the detriment of the Negro inmate.”

Defendants point to certain testimony by Miller and seem to suggest that it refutes his claim of injury. As we read it, the testimony was that it would not make any difference to Miller whether his cellmates were white or black. We do not view this testimony as ■inconsistent with a claim that he was injured by enforced and intentional racial segregation.

Similarly, while the fact that plaintiffs appear not to have made a request to be assigned to an integrated cell may, in the course of trial, have some bearing, negatively, on the proof of the existence of an intentional policy of racial segregation, we think it does not destroy their claim that they are injured by such policy if it is shown to exist.

The petitions for rehearing, both on the part of defendants and of plaintiff Thomas, are denied.

      . New counsel appear on this appeal.

      . Genuine indifference to race is the ideal, but consideration of race for the real purpose of correcting past discrimination is not in itself unconstitutional.

      . Cf. fn. 2, supra.

      . In a criminal proceeding the question is whether the incompetence of counsel turned the trial into a “sham or mockery” or at least “blotted out the essence of a substantial defense.” United States ex rel. Little v. Twomey, 477 F.2d 767, 773 (7th Cir., 1973) ; Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970). The standard followed in the third circuit is “whether counsel’s performance was at the level of normal competency”, i. e., “the exercise of the customary skill and knowledge which normally prevails at the time and place.” Moore v. United States, 432 F.2d 730, 736-737 (3rd Cir., 1970) ; United States v. Hines, 470 F.2d 225, 231 (3rd Cir., 1972). That formulation has not been adopted in this circuit.

      . Testimony was also taken with respect to Thomas’ claim of a beating on December 29, 1966. The court’s finding adverse to Thomas has not been challenged on appeal.

      . Thomas’ complaint, assuming ultimate favorable findings, would be a predicate for in-junctive relief, which he seeks. See Adams v. Carlson, 488 F.2d 619, p. 625 (No. 73-1268, August 23, 1973). He also asks damages. It would be inappropriate to apply Miller retroactively so as to award damages against the defendants for past failure to comply with Miller, if their acts were in good faith. See Miller, supra, 479 F.2d p. 719, n. 38.