author: JOHN W. PECK, Circuit Judge. WILLIAM E. MILLER, Circuit Judge

text:
    S. S. KRESGE COMPANY, Plaintiff-Appellee, v. A & B TRANSFER, INC., et al., Defendants-Appellants.
    No. 72-1967.
    United States Court of Appeals, Sixth Circuit.
    Argued April 10, 1973.
    Decided Dec. 5, 1973.
    Certiorari Denied March 4, 1974.
    See 94 S.Ct. 1491.
    Arthur R. Hauver, Denver, Colo., for defendants-appellants; Alvin J. Meikle-john, Jr., of Jones, Meiklejohn, Kehl & Lyons, Denver, Colo., Walter N. Biene-man, Robert D. Schuler and John W. Ester of Matheson, Bieneman, Veale & Parr, Detroit, Mich., on brief.
    William B. Thompson, Troy, Mich., for plaintiff-appellee.
    Before PECK, McCREE and MILLER, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

This is an appeal from an order granting summary judgment in favor of the plaintiff-shipper, S. S. Kresge, in an action against A & B Transfer, Inc., and a number of other motor carriers engaged in interstate commerce. In the District Court, Kresge sought enforcement of an Interstate Commerce Commission refund order, upheld by a three-judge district court in Admiral-Merchants Motor Freight, Inc. et al. v. United States and the Interstate Commerce Commission, 321 F.Supp. 353 (D.Colo.1971), aff’d mem., 404 U.S. 802, 92 S.Ct. 51, 30 L.Ed.2d 37 (1971), reh. denied, 404 U.S. 987, 92 S.Ct. 443, 30 L.Ed.2d 371 (1971). It alleged that the decision in Admiral-Merchants, supra, was res judicata on all issues except the amount of damages. Because of the complexity of this case, we set out the facts in some detail.

The defendants-appellants, all motor carriers in interstate commerce, are members of the Middlewest Motor Freight Bureau and participate in its published tariffs. In early 1968 the Bureau published new rates to be effective in thirty days. Initially, the Commission raised no objection to the increased rates and allowed them to take effect on April 1, 1968. But after receiving complaints from shippers, the Commission scheduled a hearing on the lawfulness of the rates for May 20, 1968. The Department of Transportation and the General Services Administration, both of which had opposed the rate increases, requested that the Commission postpone the hearing for ninety days so that each agency could adequately prepare for the proceedings. The carriers later joined in that request.

The Commission by its order of April 25, 1968, granted the request but conditioned the extension on the agreement of the carriers to comply with a refund provision:

“It is further ordered, That the time for filing the requested information and supporting data be, and, it is hereby extended to August 5, 1968; that the hearing be, and, it is hereby postponed to August 19, 1968, conditioned upon respondents compliance with the refund provision ordered below * *
“And it is further ordered, That respondents be and, they are hereby, ordered to make refunds to the shippers on any shipment moving after May 20, 1968, to the extent that the increases or any portion thereof under investigation herein are not approved by the Commission.”

On May 1, 1968, the carriers petitioned the Commission to reconsider the refund portion of the order of April 25, and raised several objections to its legality. However, the carriers later withdrew their objections, apparently because they needed the ninety-day extension to compile the necessary data for the hearing. Admiral-Merchants Motor Freight, Inc. v. United States, supra, at 356. As a result, the order of April 25 stood without protest. The Commission held the hearing on August 19, 1968, and issued its findings on June 5, 1969. It found that the carriers had not shown the increased rates to be “just and reasonable,” ordered them cancelled and:

“further ordered, That, in accordance with the order entered herein on April 25, 1968, the respondents be, and they are hereby, required to refund to shippers the charges on shipments moving after May 20, 1968, to the extent that such charges included the increases herein found not shown to be just and reasonable.”

The Bureau then petitioned the Commission either to vacate or reconsider its refund order or to reopen the proceedings for a further hearing. At the same time that the carriers notified the Commission that they would cancel the disputed rates as of August 31, 1969, they also gave the Commission notice of new increased rates to take effect on September 1, 1969. On August 29, 1969, the Commission declined to suspend or investigate the new increases and also denied the carriers’ petition to reconsider the refund order. Furthermore, the Commission ordered;

“that the respondents will hereinafter, in accordance with the said decision of June 5, 1969, make refund to shippers presenting their claims to the carriers supported by paid freight bills or other appropriate evidence.” I.C.C. Docket No. 34,971, Order of August 29, 1969.

Finally, on October 27, 1969, the Commission denied the carriers’ second petition for reconsideration of the refund order.

The carriers then sought an injunction against enforcement of the refund order. (See Interstate Commerce Act, §§ 17(9) & 205(h), 49 U.S.C. §§ 17(9) & 305(h) ). A three-judge district court was empaneled to hear the case pursuant to 28 U.S.C. §§ 2325 and 2284. (Admiral-Merchants, supra.)

The three-judge district court found that although the refund order was valid, it was nevertheless not based on the Commission’s statutory authority, but rather constituted a procedural device— a condition which the Commission could lawfully append to its grant of a postponement of the hearing. Since the carriers had impliedly agreed to this procedure — by withdrawing their objections —they were estopped from later contesting the validity of the order:

“It is abundantly clear, therefore, that Congress has not authorized the Commission to order refunds as a generally accepted procedure. It is also clear, however, that the Commission did not undertake to exercise any such power nor is this a reparations proceeding such as that which was condemned in the T.I.M.E. ease. Indeed, we do not view the present action of the Commission as an effort to exercise any general authority. The order in question was instead issued incident to a request for a continuance and indeed was not unlike the exercise of the suspension power which the Commission has and had under 49 U. S.C. § 316(g). No doubt the Commission could have ordered the rates suspended at least for a period of time (seven months).
“An even stronger argument for refusal to annul the Commission’s order is the doctrine of equitable estoppel. We have in mind the principle which imposes an obligation on a person to live up to his representations or conduct in circumstances where inequitable consequences would result to persons having the right to rely, and who in good faith did rely on the representations made. Applied to the ease at bar the Commission certainly relied on the carriers’ withdrawal of their jurisdictional objection to the refund condition. The Commission’s reliance was evidenced by its failure to vacate the order. It did not have to anticipate that the carriers would renege. The carriers’ withdrawal of their timely objection was a positive act which evidenced willingness to go along with the condition imposed.
“We are unable in good conscience, in view of the circumstances presented, to annul the order of the Commission. The Commission was acting in good faith in granting the extension, and the carriers were at the time agreeable to acceptance of the benefits of such an extension order. Their present posture appears to us to be grossly inequitable and not deserving of court intervention. While we do not commend the procedure as one which should be or could be practiced, we do hold that the peculiar facts of this case, arising as they did, are such as to not justify the granting of the relief requested, namely annulment of the Commission’s order and approval of the carriers’ conduct.” [Footnotes omitted.] 321 F.Supp. at 359-360.

The present action for refunds was brought by Kresge against those members of the Middlewest Motor Freight Bureau with whom it did business between May 20, 1968, and June 5, 1969. Kresge moved for summary judgment, contending that since the Supreme Court had affirmed the opinion of the three-judge district court, nothing remained for the District Court here but to order enforcement and determine the amount of damages. The District Court found no “significant or material factual disputes” between the parties, granted the motion for summary judgment, citing Admiral-Merchants as res judicata on the question of whether the cause of action asserted by the plaintiff properly entitled it to the relief sought. As a result the defendants were ordered to examine the plaintiff’s freight invoices and make a refund in accordance with the ICC order of June 5, 1969. The present appeal by the defendant carriers is from that order.

To resolve the instant appeal we turn to a recent Seventh Circuit case which resolved similar appeals before it regarding enforcement proceedings founded on the same Colorado three-judge district court’s judgment and affirmed those cases in favor of the plaintiff-shipper by holding that the shipper did have a statutory cause of action under §§ 16(2) and 205(g) of the Interstate Commerce Act, 49 U.S.C. §§ 16(2) and 305(g). Aluminum Company of America v. Admiral Merchants Motor Freight, Inc., 486 F.2d 717 (7th Cir. 1973). We are persuaded by that Court’s opinion and adopt its reasoning as dispositive of the issues presented by the appeal before us.

Accordingly, the judgment of the District Court is affirmed.

WILLIAM E. MILLER, Circuit Judge

(dissenting).

Respectfully, I must dissent. The Interstate Commerce Act, as originally passed in 1887, established a scheme for the regulation of the nation’s railroads. 24 Stat. 379. In 1935 the Act was amended to give the Commission regulatory authority over motor carriers as well. 49 Stat. 543. At the time of the 1935 amendment, Congress labeled the sections regulating railroads as Part I, 49 U.S.C. §§ 1 et seq., and the sections regulating motor carriers as Part II, 49 U.S.C. §§ 301 et seq. Though many sections of Parts I and II are parallel, there are significant differences, particularly with reference to the private remedies available to shippers.

Part I provides for both refunds, § 15(7), 49 U.S.C. § 15(7), and reparations, §§ 13 and 16, 49 U.S.C. §§ 13 and 16. Part II, on the other hand, contains no statutory refund procedure and was only recently amended (in 1965) to permit reparations. Interstate Commerce Act § 204a, 79 Stat. 651, 49 U.S.C. § 304a. Moreover, the remedies of the shipper seeking reparations under § 204a are more limited than those available under its Part I counterpart, § 16(2). For example, only § 16(2) permits a successful plaintiff to recover attorney’s fees. Although the original purpose of § 16(2) was to provide a right of action for shippers by railroad to obtain reparations, T.I.M.E. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959), the language of the section is broad and refers to “an order for the payment of money.”

The appellees argue that the cause of action granted by § 16(2) to any person for whose benefit the Commission has ordered the payment of money is incorporated into Part II of the Act by § 205(g). Therefore, since the refund order of June 5, 1969, was a final order under Part II, the beneficiaries of that order should have a cause of action for enforcement under § 16(2). In response, appellants contend, firstly, that the United States Supreme Court in T.I.M.E. v. United States, supra, held that § 16 was not applicable to the Motor Carrier Act and, secondly, that no action since that time, either judicial or legislative, has altered that holding.

In T.I.M.E. an interstate shipper contended that the rates it paid, even though in accordance with the published tariffs, were unreasonable because the through rate exceeded the sum of the rates charged for the shorter trips along the route. Two theories were advanced by the shipper: first, it was argued that the statutory duty of a motor carrier to establish reasonable rates, Interstate Commerce Act §§ 216(b), (d), 49 U. S.C. §§ 316(b), (d), implies a private right of action for those persons damaged by unreasonable rates; and second, that the Act preserves the common law action for the recovery of exorbitant rates charged by common carriers. Under both theories the question of the reasonableness of the rates would be referred to the Interstate Commerce Commission.

The Supreme Court rejected both theories. What the shippers requested through their alleged statutory cause of action was, in effect, reparations — a remedy expressly provided for in Part I but not then in Part II:

The very provisions of Part I, and their counterparts in Part. Ill, which give a right of action to shippers against carriers for damages incurred by carrier violations of the Act and provide the mechanics for the enforcement of that right are conspicuously absent in the' Motor Carrier Act. Thus, where § 8 of Part I provides that “any common carrier subject to the provisions of this chapter [who] shall do any act in this chapter . . . declared to be unlawful . . . shall be liable to the person or persons injured thereby for the full amount of the damages sustained . . .,” Part II has no comparable provision. Again, whereas § 9 of Part I gives an injured shipper the right to sue in the I.C.C. or in the Federal District Court, Part II contains no comparable provision. In addition, §§ 13(1) and 16 of Part I give a shipper claiming reparation the right to proceed in the Commission and to enforce his reparation award in the courts, and Part II contains no comparable provisions. 359 U.S. at 470-471, 79 S.Ct. at 908 (emphasis added).

The Court decided that these omissions manifested Congress’s intent not to provide shippers by motor carrier all of the remedies enjoyed by railroad shippers. Further support for this conclusion was seen by the Court in consistent rejection by the Congress of legislation that would have added to Part II sections similar to 8, 9, 13 and 16. 359 U.S. at 471-472, 79 S.Ct. 904.

No common law action for recovery of unreasonable rates was found to survive adoption of the Motor Carrier Act because such a remedy would have been inconsistent with the statute. Since the question of whether the rates were unreasonable would have to be referred to the Commission, see Texas & Pacific R. C. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907), a common law action for recovery would have permitted in two steps what Congress prohibited in one.

The import of T.I.M.E. to the present case is apparent. The Supreme Court found that the remedies available to shippers by rail under § 16(2) were not present in the Motor Carrier Act. Consequently, any suggestion that § 16(2) is incorporated into Part II must fail unless, subsequent to the decision, Congress has provided for such incorporation.

I am aware that the Seventh Circuit in Aluminum Company of America v. Admiral Merchants Motor Freight, Inc., 486 F.2d 717 (7th Cir. 1973) and district courts in the Eighth Circuit, see Land O’Lakes, Inc. v. United-Buckingham Freight Lines, Inc., 351 F.Supp. 102 (D.Minn.1972); Western Electric Co. v. Burlington Truck Lines, No. 18,471-4 (W.D.Mo. March 6, 1973), have considered claims brought by shippers to enforce the ICC order of June 5, 1969 and have held that the shippers do have a statutory cause of action under §§ 16(2) and 205(g). These decisions have attempted either to distinguish T.I.M.E. or hold it inapplicable in light of Congress having added a reparations section to Part II.

As indicated, in 1965 the Motor Carrier Act was amended by adding § 204a, thereby giving shippers by motor carrier a cause of action for reparations. There is no doubt that Congress was cognizant of the T.I.M.E. decision, and that the decision was one of the factors that finally prompted the Congress to make an addition to the Act that the Commission had long requested. See 2 U.S.Code Cong. & Admin.News, p. 2931 (1965). But Congress did not choose to add this remedy by incorporating into Part II sections of Part I. Instead, it added to Part II a distinct section on reparations —one that is considerably more limited in scope than its Part I counterpart, § 16(2). T.I.M.E. was, therefore, left undisturbed in its holding that § 16 could not be read into Part II. On the contrary, Congress’s action would suggest that § 204a is the sole remedy under Part II for the enforcement of Commission orders for the payment of money.

In Aluminum Company of America v. Admiral Merchants Motor Freight, Inc., supra, the court found T.I.M.E. “clearly distinguishable since it involved the shippers’ right to reparations not their right to enforce a valid refund order.” 486 F.2d at 721. It is true that in T.I.M.E. the Court did not have before it a valid order of the Commission; however, it considered the broad question of what remedies were available under Part II and used unequivocal language in stating that the remedies of § 16 were not contained in Part II.

Unfortunately, there is no clear legislative history demonstrating the intent of Congress when it passed § 205(g) as a part of the original Motor Carrier Act in 1935. Senator Wheeler, Chairman of the Senate Interstate Commerce Committee, simply pointed out the language of the section when he described the entire bill to the Senate. 79 Cong.Rec. 5653 (1935). Had Congress desired to incorporate into the Motor Carrier Act the broad statutory remedies under § 16(2), it is reasonable that there would have been some specific explanation of what was intended. Appellants submit that by “relief” in § 205(g), Congress meant “judicial review.” See Charles Nolding Trucking Co. v. United States, 29 F.Supp. 537, 543 (D.N.J.1939). It is a plausible explanation, though certainly not conclusive. I only know that nothing in the Act itself, its legislative history, or its subsequent interpretation by the Supreme Court persuades me that Congress incorporated § 16 into the Motor Carrier Act via § 205(g). On that issue T.I.M.E. is as valid today as it was in 1959.

Finally, it is important to note that the refund order which the shippers are attempting to enforce did not stem from any statutory power of the Commission. Instead, principles of equitable estop-pel and waiver were invoked to uphold its validity. Admiral-Merchants Motor Freight v. United States, supra. Nor has it been suggested that the Commission has the statutory authority under Part II to order refunds. In fact, with the exception of § 204a which has its own provisions for enforcement, Part II does not even hint that the ICC may make an order for the payment of money. What the majority has done, therefore, is to breathe into Part II a statutory cause of action to enforce an ICC order which was not issued pursuant to “any general authority.” Admiral-Merchants Motor Freight, Inc. v. United States, supra at 359 of 321 F.Supp. Such a remedy certainly was not anticipated by Congress and this Court should leave to that body the determination of whether the rights and remedies of carriers and shippers under the Motor Carrier Act are to be changed.

The absence of a statutory cause of action would not necessarily leave the shippers without a remedy. The equitable doctrine of institution seems a more appropriate vehicle for enforcing an order based on waiver and equitable estop-pel. The courts of common law and equity have spent centuries fashioning remedies for injustice, and it is to that body of law that the shippers should have turned. By creating a statutory cause of action for the appellees, this Court may have opened a Pandora’s box that could be difficult to close.

      . The Middlewest Freight Bureau is a rate publishing agent for interstate motor carriers having regular routes and which operate in the middle western states. The Bureau also compiles statistical data which are presented to the ICC in support of tariff changes.

      . Section 217 of the Interstate Commerce Act, 49 U.S.C. § 317(c), requires interstate motor carriers to notify the Commission 30 days prior to any change in rates. The ICC may then allow the rates to take effect without objection, allow the rates to take effect but order a hearing on their lawfulness, or suspend the rates for up to seven months and in the interim hold a hearing on the lawfulness of the rates. 49 U.S.C. § 316(g).

      . “Refunds” and “reparations”, as they are used in the Interstate Commerce Act, are words of art. Under § 15(7), 49 U.S.C. § 15(7) the Commission may require a carrier which has increased its rates to keep accurate accounts of “all amounts received by reason of such increase.” After the hearing the Commission may order the carrier “to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of the increased rates or charges as by its decision shall be found not justified.” (Emphasis added).
      Under the reparations procedure any aggrieved party may make a complaint to the ICC “of anything done or omitted to be done by any common carrier subject to the provisions of this chapter . . . .”49 U.S. C. § 13(1). The Commission may then investigate and, if it finds a violation by the carrier, it will “make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.” 49 U.S.C. § 16(1). There are a number of illegal activities that will give rise to a complaint for reparations, including: unreasonable charges, Lewis-Simas-Jones Co. v. Southern Pac. Co., 283 U.S. 654, 51 S.Ct. 592, 75 L.Ed. 1333 (1931), and discrimination by a carrier against or in favor of certain shippers, Pennsylvania R. Co. v. Weber, 257 U.S. 85, 42 S.Ct. 18, 66 L.Ed. 141 (1921).

      . Sec. 204a reads in pertinent part:
      (2) Eor recovery of reparations, action at law shall be begun against common carriers by motor vehicle subject to this chapter within two years from the time the cause of action accrues, and not after, and for recovery of overcharges, action at law shall be begun against common carriers by motor vehicle subject to this part within three years from the time the cause of action accrues, and not after, subject to paragraph (3) of this section, except that if claim for the overcharge has been presented in writing to the carrier within the three-year period of limitation said period shall be extended to include six months from the time notice in writing is given by the carrier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice.
      ijí Sfc # * * #
      (5) The term “reparations” as used in this section means damage resulting from charges for transportation services to the extent that the Commission, upon complaint made as provided in section 316(a) of this title, finds them to have been unjust and unreasonable, or unjustly discriminatory or unduly preferential or unduly prejudicial.

      . Sec. 16(2) reads as follows:
      If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.

      . Sec. 205 (g) provides:
      Any final order made under this chapter shall be subject to the same right of relief in court by any party in interest as is now provided in respect to orders of the Commission made under chapter 1 of this title.

      . Both before and after the T.I.M.E. decision the Interstate Commerce Commission has consistently requested that Congress amend the Motor Carrier Act and provide in Part II the broad remedies for reparations and refunds already present in Part I. See Hearings on S.1310 before the Senate Comm, on Interstate Commerce, 76th Cong., 1st Sess. at 130 (1939) ; 76 Annual Report of I.C.C. to Congress 203, 204 (1962).

      . Kresge does not contend that it is entitled to reparations under § 204a, nor has it followed the procedure set forth in the statute for obtaining reparations.

      . Such remedies could be sought in federal court if diversity of citizenship existed; otherwise, in an appropriate state court.


source: Caselaw Access Project

author: BROWN, Chief Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Laszalo KOPACSI, Defendant-Appellant.
    No. 73-2546
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 6, 1973.

      Don M. Richard, Metairie, La. (Court-appointed), for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   BROWN, Chief Judge:

Appellant seeks to have his conviction under 18 U.S.C.A. § 2113(a) and (d) for robbery of a federally insured bank and assault in the course of the robbery reversed on the grounds that the admission of evidence pertaining to a lineup identification and a resulting in-court identification were so suggestive as to deny appellant due process of law. We affirm.

On the morning of September 7, 1972, a man dressed as a postman obtained entry to the Jefferson Bank & Trust Company in Metaire, Louisiana, before the bank had opened for business for the day on the pretext of delivering a certified letter to the bank’s president. The postman-impersonator promptly produced a pistol and admitted two other armed accomplices to the bank. Some of the bank’s employees were already present when the robbers entered and during the course of the robbery which lasted approximately ten minutes, more of the employees arrived. Several times the postman-impersonator who spoke with a heavy “foreign” accent threatened to kill the bank employees if they did not get the money quickly or if they did not turn around.

Eight months after the robbery, three of the employees who had observed the postman-impersonator at close range and who had heard him speak during the course of the robbery attended a lineup sponsored by the FBI. Each of the six participants in the lineup was required to say “Turn around or I will shoot.”

Appellant apparently speaks with a rather thick Hungarian accent. The other five participants in the lineup, who were all members of the FBI, did not speak with any discernable non-New Orleans accent. Each of the three witnesses identified appellant as the postman-impersonator.

Appellant sought to have evidence of the lineup as well as any subsequent in-eourt identification arising from the lineup suppressed as unduly suggestive and therefore violative of his right to due process of law.

The District Court while acknowledging that appellant spoke with a non-New Orleans accent found that in view of the totality of circumstances surrounding the lineup, the dissimilarity in accents was not likely to present any great threat of misidentification.

The three witnesses were permitted to testify concerning the lineup identification and all three provided in-court identifications of appellant. The admission of this identification evidence is challenged on appeal.

Of course, in-court identification from a lineup may be “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 1968, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. This past term m Neil v. Biggers, 1972, 409 U.S. 188, 198-199, 93 S.Ct. 375, 381, 34 L. Ed.2d 401, 409-410, the Court noted:

“Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentifi-cation. * * * It is the likelihood of misidentification which violates a defendant’s right to due process. * * * Suggestive confrontations are disapproved because they increase the likelihood of misidentification. * * *
[T]he factors to be considered in evaluating the likelihood of misidenti-fication include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

In light of these principles as well as the particular factual circumstances presented by cases of the Supreme Court and this Circuit, we are convinced that the lineup identification in issue was not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

From the outset appellant concedes that the only irregularity in the police lineup which might support a finding of suggestiveness was the dissimilarity between the accent of appellant and the accents of the other lineup participants.

In identification cases, dissimilarity should not automatically be equated with suggestiveness. Indeed it is the often inarticulable dissimilarities between one individual and the next which make identification possible. A dissimilarity is suggestive only to the extent that it singles out and focuses the attention of the witness on a suspect before the witness has been able to make an independent determination.

All three witnesses testified that prior to and during the lineup, the police made no suggestions concerning any, of the lineup participants nor did they indicate that they believed that one of the participants was in fact the criminal. There was testimony that the witnesses were physically separated during the lineup.

It is a matter of record that the six participants in the lineup bore a substantial resemblance to each other both in terms of build and facial characteristics. All were dressed the same, all made the same motions, all spoke the same words.

All three of the witnesses who identified appellant testified that they had an opportunity to observe the postman-impersonator face to face at close range during the robbery. One of the witnesses testified that he had been able to view the robber for as long as five minutes while another viewed him for two minutes. It is undisputed that the bank was well lit. One of the witnesses testified that he had previously been instructed to take careful notice of bank robbers and that he did so on this occasion. The postman-impersonator wore sunglasses but no mask during the robbery.

Of the three witnesses, two testified both at the lineup and at the trial that they were absolutely certain that appellant was the postman-impersonator. The third witness testified that he was not positive but “reasonably sure” that appellant was the man.

All of the Supreme Court cases and the vast majority of Fifth Circuit cases, see notes 4 and 5, supra, which have failed to find “a very substantial likelihood of irreparable misidentification” in challenged identification procedures have involved an identification by only one witness. By way of contrast, appellant was identified by three witnesses.

While the eight month lapse between the robbery and the lineup is a factor which must be considered, we do not believe that it significantly detracts from the reliability of the identifications in this case.

The dissimilarity in accents does not’ significantly increase the risk of misi-dentification in this case. The participants in the lineup were asked to speak near the end rather than the beginning of the lineup. Although each witness did not tell the police that appellant was the man until after the participants had spoken, all three testified that they were definitely convinced that appellant was the postman-impersonator before any of the participants spoke. Thus the distinctive quality of appellant’s voice only served to reinforce the initial identification.

Appellant and four of the five FBI agents who participated in the lineup testified before the District Judge. The District Judge found that:

“While he [appellant] does possess what might be said to be a non-New Orleans accent, I dare say that his accent doesn’t differ more from the average English accent than I could find in New Orleans in different neighborhoods .... In fact, I dare say the accents of Mississippians and some northern Louisianaians, and Texans differ far more from the New Orleans accent than his accent differs from the average New Orleans accent. I just don’t think it’s overly suggestive, * * *
I think he speaks clearly. In fact, he speaks excellent English. I think, in fact, that there is really less difference in his accent than perhaps it would be a difference if the man were of French or Cajun descent. * * * I don’t think it should necessarily mislead any person who is attempting to ■ act in good faith in connection with the identification of this defendant.”

Needless to say, the District Judge was in a far better position to examine the alleged dissimilarities in accents than are we. Under the circumstances of this case it is highly improbable that the dissimilarity in the accents of the lineup participants — despite any possibility of suggestiveness — was likely to precipitate a substantial risk of mis-identifieation.

It has necessarily been recognized that a unique accent or quality of voice may often be helpful if not essential to the proper identification of a criminal suspect. See Roper v. Beto, 5 Cir., 1971, 454 F.2d 499. We do not intimate that under no circumstances might the presentation of a vocal dissimilarity in an identification procedure be so suggestive as to constitute a denial of due process.

We are compelled to conclude, however, that in view of the totality of circumstances, the District Judge properly admitted the identification evidence.

Affirmed.

      . Two of the three witnesses testified that after the robbery they had told the police that the postman-impersonator spoke with a Spanish accent.

      . Prior to the lineup, appellant’s counsel requested that the police refrain from requiring any of the participants to speak because of appellant’s accent.

      . Since appellant was represented by counsel at the lineup this case does not involve the Sixth Amendment right to the presence of counsel established by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149.

      . See Neil v. Biggers, 1972, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Coleman v. Alabama, 1970, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387; Foster v. California, 1969, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (the only case to date in which the Court has found the identification to be impermissibly suggestive) ; Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

      . See, e. g., Robinson v. State of Alabama, 5 Cir., 1972, 469 F.2d 690, cert. denied, 411 U.S. 909, 93 S.Ct. 1539, 36 L.Ed.2d 199; Roper v. Beto, 5 Cir., 1971, 454 F.2d 499, cert. denied, 406 U.S. 948, 92 S.Ct. 2053, 32 L.Ed.2d 336; Ward v. Wainwright, 5 Cir., 1971, 450 F.2d 409 (impermissibly suggestive lineup did not, under the circumstances, affect the reliability of the in-court identification) ; Crummie v. Wainwright, 5 Cir., 1970, 427 F.2d 135; Crume v. Beto, 5 Cir., 1967, 383 F.2d 36, cert. denied, 395 U.S. 964, 89 S.Ct. 2106, 23 L.Ed.2d 749.

      . This is the danger when a one man showup (as opposed to the lineup) is held, or where one black is placed in an otherwise all white lineup when the victim has previously stated that the criminal was black, or where the witness sees one of the lineup participants singularly in the custody of the police prior to identification. See United States v. Johnson, 5 Cir., 1972, 461 F.2d 1165.

      . In Biggers, while holding that an identification which occurred seven months subsequent to the crime comported with due process, the Supreme Court noted that a lapse of seven months “would be a seriously negative factor in most cases.” 409 U.S. at 201, 93 S.Ct. at 383, 34 L.Ed.2d at 412. The Court seemed to find, however, that the absence of any prior identifications by the victim during this period preserved the victim’s “record for reliability” and counter-balanced the time lapse. In the present case only one of the three witnesses was able to identify a photograph of appellant at a photograph showing preceding the lineup. The other two witnesses did not select any of the photographs.

      . The witness who was unable to positively identify appellant testified that he had settled on appellant before the participants spoke.

      . See United States v. Sutherland, 5 Cir., 1970, 428 F.2d 1152, cert. denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668, where it is recognized in the context of photographic identification procedures that suggestiveness and likelihood of misidentification are distinct elements each of which must be established to render the identification evidence inadmissible. See also United States v. Evans, 2 Cir., 1973, 484 F.2d 1178 (1973).

      . Biggers clearly establishes that the police need not provide laboratory conditions for faultless identification in order to satisfy due process requirements. 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 413.


author: MERRILL, Circuit Judge

text:
    Leonard P. STUCKEY, Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare, Appellee.
    No. 25487.
    United States Court of Appeals, Ninth Circuit.
    Nov. 21, 1973.

      Leonard P. Stuckey in pro. per. Sidney I. Lezak, U. S. Atty., Portland, Or., Alan S. Rosenthal, Atty. (argued), William D. Ruekelshaus, Asst. Atty. Gen., Civil Div., Dept, of Justice, Washington, D.C., for appellee.
    Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, and SNEED, Circuit Judges.

       Originally, the appellee was Elliot L. Richardson, then Secretary of Health, Education and Welfare. His successor has been substituted under the authority of Rule 43(c), Fed.R.App.P.

   OPINION

ELY, Circuit Judge (with whom CHAMBERS, KOELSCH, WRIGHT, TRASK, CHOY, GOODWIN and SNEED, JJ., concur):

Stuckey appeals from the District Court’s dismissal, for lack of jurisdiction, of his complaint seeking review of an administrative determination denying reopening, in part, of his claims for disability insurance benefits. We affirm.

In 1954, Stuckey suffered a severe back injury. Shortly thereafter, in 1955, he filed a claim with the Social Security Administration (“SSA”) for disability benefits. That claim was denied, both initially and upon reconsideration, because Stuckey failed sufficiently to demonstrate that he was disabled within the meaning of the Social Security Act. The denial of benefits was reaffirmed after a hearing conducted at Stuckey’s request. The SSA Appeals Council declined to review the decision of the hearing officer. Having exhausted his administrative remedies, Stuckey filed an action in the District Court. That court remanded to the SSA, upon the agency’s request, for further consideration because Stuckey, after filing, entered a hospital for further treatment of his back. Upon remand, the SSA conducted a supplemental hearing at which Stuckey testified and was represented by counsel. On the expanded record, the prior denial of benefits was affirmed by both a hearing officer and the Appeals Council. Their decision was approved by the District Court when Stuckey renewed his court action.

In November, 1959, several months after the District Court’s decision, Stuckey filed another claim for benefits. Two months after that, he filed a third. Both covered the same facts and were, in effect, identical to the first claim. Meeting a similar fate by the SSA, they were denied, both initial* ly and upon reconsideration. The denial was affirmed by a hearing officer, and his decision became final when the Appeals Council declined Stuckey’s request for review. The hearing examiner based his decision upon findings that res judicata precluded reconsideration of matters already decided by the District Court and that Stuckey’s condition had not been materially changed since that decision was rendered.

In August, 1962, Stuckey filed yet another claim. This application, too, was denied initially and upon reconsideration. Local SSA officials declined to provide Stuckey the benefits he sought. The hearing examiner, reviewing the claim of Stuckey’s request, affirmed the denial of benefits; he could find no justification for reopening the prior final decisions. After the Appeals Council declined to review the decision of the hearing officer, Stuckey sought judicial review. His suit was dismissed by the District Court.

Two more claims were filed in 1965. Both were denied by the SSA at the outset, and Stuckey did not seek review of those denials.

Finally, in 1966, Stuckey filed the application which, ultimately, led to this appeal. Like its numerous, virtually identical predecessors, this claim was denied in the first instance and, then, upon reconsideration. Stuckey then requested a hearing. At the hearing, the issue was different than it had been before. This time the question was whether Stuckey qualified for benefits under the terms of the Social Security Act as it had been amended in 1965. On the basis of the evidence adduced at the hearing, Stuckey was found to be disabled and entitled to benefits. The amount awarded was, however, severly restricted by the hearing officer. He ruled that under the amended provisions of the act, benefits could be awarded only from September, 1965. Further, he ruled that Stuckey’s claim for benefits under the pre-1965 law was foreclosed by application of the principle of res ju-dicata. See 42 U.S.C. § 405(h); 20 C. F.R. § 404.937. Dissatisfied with that limited victory, Stuckey sought review by the Appeals Council.

The Appeals Council modified the hearing officer’s decision. It agreed that Stuckey was disabled and was entitled to benefits under the 1965 amendments, but it disagreed with the determination that Stuckey’s pre-1965 claims could not be reopened. The Council applied an exception to the general policies of finality and res judicata (20 C.F.R. §§ 404.956-404.958). Under that regulation, reopening was possible because Stuckey had presented “new and material evidence” within four years of the date- when benefits were initially denied. It therefore reopened those of Stuckey’s prior applications which fell within the four-year period and granted Stuckey part of the benefits he sought. The other claims were deemed not subject to reopening.

Stuckey, still unsatisfied, then filed his latest suit in the District Court. The court held (1) it had no jurisdiction to review the decision that several of Stuckey’s claims would not be reopened, and (2) the decision of the Secretary was correct insofar as it allowed reopening and modified the disposition of the more recent claims. Stuckey appealed and now contends that all of his prior claims should have been reopened.

At the threshold, we have the question of the correctness of the District Court’s determination that there is no jurisdiction to review the denial of reopening. The Social Security Act does allow judicial review in some situations. It is now settled, however, that the relevant section of the Act provides no basis for jurisdiction here. In a similar case, Filice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963), we held:

“[T]he orders made judicially reviewable by Subsection (g) of Section 405 are orders authorized by Subsection (b) of Section 405 which make findings of fact and decisions as to rights of applicants for payment, or which affirm, modify, or reverse such orders, and not orders which merely deny petitions to reopen proceedings in which such findings and decisions have been made.” 319 F.2d at 445-446 (Emphasis added)

Stuckey does not challenge the correctness of the rule announced in Filice. Rather, he contends that there is another basis for jurisdiction. Citing Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966), he argues that decisions not to reopen are reviewable, for abuses of discretion, under the Administrative Procedure Act (“APA”) (5 U.S.C. §§ 701-706). The APA authorizes judieiál review of “final agency action for which there is no other adequate remedy in a court” (5 U.S.C. § 704) except

“to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”

The Cappadora court determined that the Social Security Act neither precludes review nor wholly commits decisions regarding reopening to the discretion of the Secretary. Although we entertain immense respect for our Brothers of the Second Circuit, we can not fully accept their conclusions.

In Cappadora, it was stated:

“[W]e do not believe that Congress would have wished to close the doors of the courts to a plaintiff whose claim for social security benefits was denied because of an unreasonable or inappropriate agency rule on reopening or because of a truly arbitrary administrative decision .... Absent any evidence to the contrary, Congress may rather be presumed to have intended that the courts should fulfill their traditional role of defining and maintaining the proper bounds of administrative discretion and safeguarding the rights of the individual.”

356 F.2d at 6. While we basically agree with these quoted principles, we reject the broad scope of the Cappadora decision since we perceive, in the Social Security Act, convincing evidence that Congress did intend to bar judicial review of SSA decisions in certain cases. Section 405(h) of the Act provides in part that “the findings and decisions of the Secretary after a hearing shall be binding upon all who were parties to such hearing.” The obvious purpose of that language is to declare that res judicata principles are applicable to the findings and decisions of the SSA made in certain procedural contexts. See, e. g., Leviner v. Richardson, 443 F.2d 1338, 1342-1343 (4th Cir. 1971); III K. Davis, Administrative Law Treatise § 18.02 (1958 ed.; supp. 1971) [hereinafter- cited as Davis]. We have concluded that the Congress intended, by this distinction, to commit irrevocably to agency discretion those decisions which are rendered after full and fair agency hearings and to which, accordingly, the application of the traditional concept of res judicata could not be fairly seen as unreasonable. Thus committed, these decisions are beyond the jurisdiction of the courts under both the Act and the APA.

We attribute this effect to § 405(h) for two reasons. First, by its broad, unambiguous terms, finality is applicable, without reservation, to all procedurally correct decisions and findings of the Secretary. That, of course, cannot be interpreted literally. Even as to judicial decisions, the doctrine of finality does not have such a broad application, for there are clearly some of such decisions to which res judicata cannot be applied. See Davis § 18.03; 1 Moore’s Federal Practice 0.405 [11] (1965). Nevertheless, within the limits of the res judicata doctrine, § 405(h) reflects the policy of strict finality. That Congressional policy is, we think, that, in the interests of administrative efficiency, every claimant seeking benefits under the Social Security Act should be given only one opportunity to obtain the benefits accruing from an administrative system that guarantees a full panoply of procedural rights. See Hobby v. Hodges, 215 F.2d 754, 759 (10th Cir. 1954). In light of the vast number of claims processed annually by the SSA, this limitation is wholly reasonable. The administrative costs of the procedures specified in § 405 are undoubtedly great. Each claimant is entitled to have his claim reviewed three and possibly four times before he may appeal to the courts. If every claimant were free to utilize those excellent procedures repeatedly to relitigate the same claim, the fiscal stability of the SSA could be dangerously undermined by such escalating burdens as would be necessarily consequential.

Secondly, if the barrier to relitigation in § 405 is to be effective, it must apply to judicial, as well as administrative, review. Otherwise, the courts would exercise review powers far beyond those anticipated in the statute. (See § 405(g); see generally Leviner v. Richardson, supra.) Claimants seeking to resurrect stale claims would turn to the courts for relief if it were, by law, unavailable from the SSA. That, in turn, would frustrate the expressed policy of finality. Persistent claimants could re-litigate claims numerous times in hopes of securing a favorable decision, at great cost to both the SSA and the courts. See Hobby v. Hodges, supra. Each petition for review would necessarily involve the agency, and ultimately the courts, in a reexamination and reevaluation of the evidence previously adduced to support the original claim for benefits. The restriction upon relitigation, prescribed in § 405, would evaporate. There is the consideration, too, that the jurisdiction of the federal courts is supposed, in general, to be conferred by Congress. In a situation wherein Congress has not clearly conferred jurisdiction in respect to a particular type of controversy, the courts should exercise a discreet restraint, especially in these times, in assuming it.

Given the effect of § 405, the critical issue becomes its scope: exactly which claims for review are beyond the courts’ jurisdiction? The answer is derived from the res judicata doctrine, for its limits define the boundaries of the judicial power in cases like this. That doctrine is the vehicle Congress has employed to put some of the Secretary’s decisions beyond review.

When applied to administrative decisions, the res judicata doctrine is not as rigid as it is with courts; there is much flexibility which is intended to adapt the doctrine to the unique problems of administrative justice. See III Davis § 18.03. Nevertheless, the doctrine retains full force when applied to adjudications of “past facts, where the second proceeding involves the same claim or the same transaction.” Id. In those situations, the findings and decisions are res judicata and “the question whether the (tribunal making the decision is) an agency or a court is immaterial.” Id. There is, therefore, no jurisdiction in the courts to review denials of reopening when the basis for the petition for reopening is an allegedly erroneous factual determination. Reconsideration of those types of issues is barred by § 405, if the Secretary denies reopening.

The regulations which allow reopening in eases presenting issues unrelated to res judicata (e. g., 20 C.F.R. § 404.957(c)(8) allowing reopening to cor-' rect clerical errors) are a necessary aspect of the flexibility of the finality doctrine. See III Davis § 18.03 at 559-60 n.3 (1958 ed.). Since the issues presented in cases arising under regulations of this kind are not factual ones, and thus are not subject to res judicata, such cases are subject to judicial review for the purpose of determining whether the SSA correctly applied the controlling regulation. In addition, of course, judicial review is available to determine the validity of the regulations themselves.

Regulations promulgated by the Secretary permit reopening in some circumstances, of prior, final factual determinations. See, e. g., 20 C.F.R. § 404.-957(b), allowing reopening for “good cause” in certain cases. Such regulations may not be fully consistent with strict res judicata principles, but, as we view them, they represent permissible action taken by the Secretary to insure that the SSA shall operate fairly, according to claimants all procedural rights except such as would, in his expert opinion, unreasonably burden the SSA’s operation. See generally III Davis § 18.03. They are per se reasonable under § 405(a). The Secretary also has discretion in the application of these regulations. If, after reviewing a petition for reopening which seeks redeter-mination of an issue subject to res judi-cata, he concludes, for example, that “good cause” was not shown therein, and he denies reopening, that denial is final. Since the Secretary need not ever grant reopening of claims subject to res judi-cata, whether he does so in any given case is entirely a matter of administrative grace.

We turn to consider the nature of the issues underlying Stuckey’s petition for reopening. As we read the' record, Stuckey advances two arguments. First, he argues that the determinations of nondisability made prior to 1966 were patently erroneous, and, hence, reopening is proper because of this “error on the face of the evidence.” (20 C.F.R. §§ 404.957(c)(8), 404.958(c)).- This, he suggests, is proved by the SSA’s finding of disability in 1966. Next, he contends that the decisions rendered prior to 1966 were wrong because there was inadequate evidence that he was in fact employable and, hence, not disabled.

Neither of Stuckey’s arguments is persuasive. It is readily apparent that both relate to factual issues which, through res judicata, were conclusively determined long ago. Stuckey could have sought judicial review when the decisions he challenges were originally rendered. Since he failed to do so, the administrative decisions and the District Court decision became binding upon him. It would be wrong for the courts to intrude simply because the Secretary, exercising his discretion, chose not to relieve Stuckey of the latter’s neglect.

Affirmed.

MERRILL, Circuit Judge

(with whom BROWNING, DUNIWAY, HUFSTED-LER and WALLACE, JJ., concur) concurring :

I concur in the result. The reasons advanced by Judge Ely for according respect to earlier administrative determinations on the basis of administrative res judicata provide ample grounds for affirming on the merits the decision of the Secretary to deny reopening.

However, I agree with the Second Circuit, for th.e reasons set forth in Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966), that a limited area of judicial review has been afforded by the Administrative Procedure Act, and that the second sentence of 42 U.S.C. § 405(h) should not be construed to preclude judicial review; that that sentence “simply forbids attempts to review final decisions on the merits by any route other than that provided in § 405(g).” 356 F.2d at 5. (Emphasis supplied.) Proceeding to limited review of the Secretary’s decision here, I would affirm that decision on the merits.

      . The procedures followed by the SSA throughout this case are established in 42 U.S.C. § 405. In pertinent part, the section provides:
      :‘(a) The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this sub-chapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.
      “(b) The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this subchapter. Upon request by any such individual or upon request by a wife, divorced wife, widow, surviving divorced wife, surviving divorced mother, husband, widower, child, or parent who makes a showing in writing that his or her rights may be prejudiced by any decision the Secretary has rendered, he shall give such applicant and such other individual reasonable notice and opportunity for a hearing with respect to such decision, and, if a hearing is held, shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse his findings of fact and such decision. Any such request with respect to such a decision must be filed within such period after such decision as may be prescribed in regulations of the Secretary, except that the period so prescribed may not be less than six months after notice of such decision is mailed to the individual making such request. The Secretary is further authorized, on his own motion, to hold such hearings and to conduct such investigations and other proceedings as he may deem necessary or proper for the administration of this subehapter. In the course of any hearing, investigation, or other proceeding, he may administer oaths and affirmations, examine witnesses, and receive evidence. Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure.
      * * * i¡< i|i
      “(g) Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The court shall, on motion of the Secretary made before he files his answer, remand the ease to the Secretary for further action by the Secretary, and may, at any time, on good cause shown, order additional evidence to be taken before the Secretary, and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or its decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office.
      “(h) The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of Title 28 to recover on any claim arising under this subchapter.”

      . There was no question that Stuckey could not continue his work as a lumberjack. The SSA concluded, however, that he would be employable in other occupations because he possessed other useful skills.

      . At least at the hearing level, these two applications were apparently merged. The only distinction between them and the first claim was the period for which benefits were claimed. That distinction was, of course, irrelevant to the decisions on the merits.

      . Res judicata applies by virtue of 42 U.S.C. § 405(h) and 20 C.F.R. § 404.937.

      . There was newly proffered evidence that Stuckey had been suffering under a serious mental disability, continuously since 1954.

      . Section 404.957(b) provides that reopening is possible
      “within 4 years after the date of the notice of the initial determination upon a finding of good cause for reopening such determination or decision

        ft

      Section 404.958 interprets “good cause” to mean where “new and material evidence is furnished after notice to the party to the initial determination . . ..”

      . The applicability of this regulation is questionable. Benefits were initially denied to Stuckey in 1954, much more than four years before the 1966 reopening. That apparently allowed by the Appeals Council was reopening of the applications for reopening.

      . The effect of reopening these applications was to allow Stuckey benefits only from November, 1963. Prior to that date, disabled applicants were entitled to benefits only if they met a special earnings requirement. Subsequently, the law was amended to remove the restrictive requirement, but Congress provided that no benefits could be paid for periods prior to November, 1963, because of the statutory amendment. 78 Stat. 1075-76. Since Stuckey failed to fulfill the earnings requirement, the November, 1963 restriction applied to him.

      . He does not challenge the correctness of the modified decision regarding the payment of benefits on the claims filed between 1962 and 1966.

      . Although the Cappadora decision has previously received some attention from our court, we have never considered whether we should adopt the rule it suggests. In Kasparek v. Gardner, 409 F.2d 214 (9th Cir. 1969), we noted that the question of review under the APA was “open in this circuit.” Subsequently, in Brockman v. Finch, 418 F. 2d 116 (9th Cir. 1969), we decided, based solely upon the concession of appellant’s counsel, that review of a decision barring reopening was not available under the APA. The law in our court should not become established simply by reason of a party’s concession ; hence, we cannot blindly apply our Brockman decision. Similarly, we cannot apply our recent decision in Harmon v. Finch, 460 F.2d 1229 (9th Cir. 1972), for the question of review under the APA does not appear to have been there presented.

      . As we interpret § 405(h), the “findings and decisions” to which res judicata applies are those, on the merits, which became final as a result of either judicial decision or a claimant’s failure to seek review, outside the agency, after receiving notice of an adverse decision. This restrictive interpretation is consistent with our interpretation of similar language found in other portions of § 405. See Filice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963).
      We need not now consider whether a broader scope should be given to § 405, as otlier Circuits have done. See, e. g., Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971). Due to Stuckey’s perseverance, benefits to him were denied only after hearings were held to evaluate the merits of each claim.

      . The “single” opportunity involved includes numerous opportunities for a claimant to seek review and thereby fully protect his interests in gaming a fair decision.

      . In fiscal 1971, the SSA received 5,062,932 applications for benefits; 45,697 appeal hearings were held; and more than 1,600 petitions for review were filed in the United States District Courts. Social Security Facts for Fiscal Year 1971. (S. S. A. Office of Administration Booklet).

      . This is necessarily true, for it is only in the context of the previous hearings and decisions that any accurate determination of the validity of a claim for reopening can be made.

      . This includes two types of cases, (1) Those wherein no new evidence is presented and the error is asserted to be apparent on the record, and (2) those wherein “new and material” evidence is proffered.

      . Even if the District Court had jurisdiction, it could have found no merit in Stuck-ey’s arguments that the agency had abused its discretion.

      . There is a possibility that the District Court also lacked jurisdiction because of the absence of a requisite amount in controversy. We do not, however, reach that issue.


author: FIELD, Circuit Judge:

text:
    The JOHNS HOPKINS UNIVERSITY, Appellee, v. William E. HUTTON et al., Appellants.
    No. 72-1995.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1973.
    Decided Dec. 4, 1973.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1622, 1623.

      John A. Wilson, New York City (Michael J. DeSantis, Lawrence G. Golde, John F. King and Shearman & Sterling, New York City, on brief), for appellants.
    John Henry Lewin and Edmund P. Dandridge, Jr., Baltimore, Md. (Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellee.
    Before RUSSELL and FIELD, Circuit Judges, and BRYAN, District Judge.
   FIELD, Circuit Judge:

In this case which was before us over three years ago, W. E. Hutton & Company (“Hutton”) now appeals from a summary judgment of rescission in favor of the plaintiff, The Johns Hopkins University (“Hopkins”), granted on counts II, III and V of Hopkins’ amended complaint. Based upon the charge that Hutton’s employee, Gilbert H. LaPiere, had been guilty of misrepresentations and nondisclosure incident to Hopkins’ purchase of an oil and gas production payment from Trice Production Company, Hopkins’ amended complaint was framed in seven counts: (I) Section 12(2) of the Securities Act of 1933; (II) Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-3 of the Securities and Exchange Commission ; (III) Section 10(b) of the ’34 Act and Rule 10b-5 of the Commission; (IV) Section 15(c)(1) of the ’34 Act; (V) Section 17(a) of the ’33 Act; and (VI) and (VII) under the common law for (a) false representation and fraudulent conduct and (b) false representations negligently made with reckless indifference as to their truth.

On the former appeal we had occasion to review the action of the district court in granting Hopkins’ motion for summary judgment on count I involving the alleged violation of Section 12(2) of the ’33 Act. In our disposition of that appeal we found the production payment to be a “security” within the statutory definition of the ’33 Act and further concluded that the undisputed facts warranted the summary finding that Hutton’s violation of Section 12(2) of the ’33 Act entitled Hopkins to rescission. However, we noted the presence of a material factual controversy upon the issue as to whether Hopkins had commenced its action within “one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence” as required by Section 13 of the ’33 Act. We held that since Hutton had demanded a jury and the facts were susceptible of conflicting inferences on the issue of Hopkins’ reasonable diligence, the issue under Section 13 should be submitted to a jury. To that end we remanded the case to the district court for further proceedings consistent with our opinion.

Upon remand, for some reason not at all clear to us, the district court did not proceed with the jury trial on the Section 13 issue under Count I. Instead, the court permitted Hopkins to press its claim for summary judgment as to liability only under counts II, III, and V of the complaint which were bottomed on Section 10(b) of the ’34 Act and Section 17(a) of the ’33 Act. Discerning support in our affirmance of facial liability under Section 12(2) on the former appeal, the district judge in an opinion filed in April of 1971 found that the undisputed facts sufficiently demonstrated the presence of the requisite elements of scienter and reliance and granted summary judgment in favor of Hopkins with regard to liability under the three counts in question.

We think the undisputed facts support the district court’s summary finding of liability upon counts II, III and V. While our opinion on the former appeal was addressed only to the Section 12(2) claim, the undisputed evidence of LaPiere’s misrepresentations and omissions to which we referred on that occasion would clearly supply the element of scienter necessary to support a cause of action under Sections 10(b) and 17. Reliance,, of course, is not an operative element under the Section 12(2) count and we were not called upon to make a specific evaluation on that point in our former opinion. While the case of Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972) has cast some doubt upon the part played by reliance in Rule 10b-5 eases, we do not find it necessary to concern ourselves with the dialogue of whether some degree of reliance is still a factor in face-to-face transactions involving misrepresentations and nondisclosure such as we presently have before us. On the prior appeal we stated, that “[i]nformation about future revenues was essential to Hopkins’ decision to purchase, and this information was tainted by LaPiere’s material misrepresentations and. omissions,” and assuming that in a case such as this some degree of reliance is necessary, we think the es-sentiality of the tainted information satisfies the accepted criteria of reliance which were delineated in List v. Fashion Park, Inc., 340 F.2d 457 (2 Cir. 1965). See Baumel v. Rosen, 283 F.Supp. 128, 140 (D.C.Md.1968), reversed on other grounds 412 F.2d 571 (4 Cir. 1969).

Having found Hopkins entitled to summary judgment with respect to liability, the district court proceeded to discuss at some length the nature of the relief to which Hopkins might be entitled. While at this juncture Hopkins had asked only for damages under counts II, III and V, the district judge explored the possibility of rescission and, adverting to our opinion in Baumel v. Rosen, 412 F.2d 571 (4 Cir. 1969), concluded that to obtain such relief “Hopkins must succeed at trial in establishing by the preponderance of the evidence that it demanded rescission ‘within a reasonable time after discovery of the ground for rescission.’ ” The district judge determined that there was a triable issue of fact under count I relative to the Section 13 limitation issue, and also such a triable issue with respect to Hopkins’ entitlement to rescission under counts II, III and V as to “whether Hopkins moved too slowly in its quest for rescission.” As heretofore noted, Hopkins at that time had not asked for rescission with respect to counts II, III and V, and in the concluding paragraph of the opinion the district judge offered Hopkins the following options :

“Hopkins is hereby required to inform this Court and Hutton within fourteen (14) days from the date of this opinion (a) whether Hopkins is primarily seeking rescission under one or more of Counts I, II, III and V and/or any other count, and, secondarily, damages under one or more of Counts II-VII, inclusive, only if Hopkins is held not entitled to rescission under any count; or (b) whether Hopkins desires to opt for damages and forego its quest for rescission; or (c) whether Hopkins asks that the pending discovery and evidentiary questions, all of which apparently pertain entirely to damages, be determined by this Court before Hopkins makes the election posed by (a) and (b).”

Responsive to this invitation, Hopkins advised the court by letter on April 20, 1971, that it was “primarily seeking rescission under counts II, III and V of the Complaint; secondly, rescission under count I; and damages under counts II, III and V only if Hopkins is not entitled to rescission under counts I, II, III and V.” Some months thereafter, on January 7, 1972, with leave of the court, Hopkins filed an amendment to its complaint seeking, in addition to its demand for damages, relief by way of rescission on counts II through VII. The court also permitted Hutton to file an amendment to its answer alleging that Hopkins had failed to act with reasonable diligence in asserting rescission promptly and, additionally, was guilty of laches. In its final opinion filed in March of 1972, the district court reaffirmed its earlier conclusion that Hutton was “entitled to a jury trial in connection with any and all triable fact issues with regard to whether Hopkins is entitled to rescission (a) under Counts II, III and V in which Hopkins seeks relief pursuant to Section 10(b) of the Securities and Exchange Act of 1934 and Rules 10b-3 and 10b-5 promulgated thereunder, and also pursuant to Section 17(a) of the Securities Act of 1933, and/or (b) under Count I in which Hopkins seeks relief under Section 12(2) of the Securities Act of 1933, so long as Hopkins continues to hold in reserve, in the event Hopkins is held not entitled to rescission, its claim for damages under one or more Counts II-VII, inclusive, of Hopkins’ complaint.”

The Court, and we think properly, recognized this right of Hutton to a jury trial under the rationale of Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L. Ed.2d 44 (1962); and Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). However, having recognized Hutton’s theoretical right to a jury trial on these issues, the district judge concluded “that upon the current state of the record in this case and the undisputed facts disclosed by it,” Hopkins was entitled to a summary grant of rescissory relief under counts II, III and V. In reaching this conclusion the district -judge took the position that Hopkins’ conduct in seeking rescission under Sections 10(b) and 17 should be appraised under criteria substantially different from those imposed by Section 12(2) and the related Section 13 requirement. Recognizing that the one year limitation under Section 13 is tested to a large degree upon an objective standard of reasonable diligence on the part of the buyer in making discovery of the fraud, the district court suggested that in the context of the 10(b) and 17 claims a subjective test should be applied and that Hutton had the burden of proving that Hopkins had actual notice of the fraud substantially in advance of the date on which it asserted rescission. Support for this distinction was found by the district judge in the case of Pence v. Langdon, 99 U.S. 578, 25 L.Ed. 420 (1878), as well as his studied analysis of. our opinion in Baumel. We fail to find Pence, which involved the review of a trial court’s instructions in an action at law, persuasive on the issue before us, and we think the district court’s reading of Baumel was much too restrictive.-

Traditionally, federal equity doctrine has recognized that the discovery of fraud is either the date of actual discovery or the date on which the plaintiff in the exercise of reasonable diligence should have made such discovery. Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946); Bailey v. Glover, 88 U.S. (21 Wall) 342, 348, 22 L.Ed. 636 (1874). See Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807 (1879). “Full and complete knowledge of an alleged fraud or breach of contract is not essential to impose upon a would-be rescinder the necessity of acting promptly and diligently if he wishes to assert a rescission. It is enough that he has such notice of the facts as would impel a reasonable man in his position to make inquiry. Having such notice, he will be chargeable with knowledge of all the facts which inquiry would disclose.” Friedman, Delay as a Bar to Rescission, 26 Cornell Law Quarterly, 426, 432 (April 1941). This principle is similarly stated in 3 Pomeroy’s Equity Jurisprudence (5th Ed. 1941) § 917:

“After he [the would-be rescinder] has obtained knowledge of the fraud, or has been informed of facts and cir-. cumstanees from which such knowledge would be imputed to him, a delay in instituting judicial proceedings for relief, although for a less period than that prescribed by the statute of limitations, may be, and generally will be, regarded as an acquiesence * *

This objective approach has been uniformly applied by the courts in actions brought under both the 1933 and 1934 Securities Acts. In Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5 Cir. 1967), a case relied upon by Judge Butzner in his opinion on the former appeal, the court stated:

“Insisting upon a subjective test of actual knowledge, appellant contends that the pertinent Florida statute of limitations did not commence to run until it discovered, on September 17, 1964, the material facts upon which it relies for a recovery of damages for a fraud perpetrated by appellees. This circuit, however, is committed to the more objective approach to the accrual of such an action, árticulated in Goldenberg v. Bache & Co., 270 F.2d 675, 681 (5th Cir. 1959), as follows: ‘Discovery’ within the meaning of the statute, 15 U.S.C.A. § 78ce(b) * * * is to be determined, we think, according to an objective standard; that is, ‘discovery’ means either actual knowledge or notice of facts which, in the exercise of due diligence, would have led to actual knowledge of the violation.” (Footnote omitted.)

Thus, it was not any unique factual contours of Baumel which provoked Judge Bryan to state the principle which we find applicable to the present case:

“Rescission is a radical move, and the law exacts the election of that course to be asserted without wait. The demand is that advice of the determination be given within a reasonable time after discovery of the ground for rescission.
This principle is stringently administered. Reasonable time is inceptive from the receipt by the resci/nder of word putting him on notice. It is then incumbent upon him to pick up the scent and nose to the source. * * * (citation omitted). If the quest confirms the suspicion, then he must make decision with reasonable dispatch. Failing this, entitlement to rescission disappears.” (Emphasis added) 412 F.2d, supra, at 574.

In substance we hold that Hopkins, in seeking rescission under Sections 10(b) and 17, was required to act with reasonable dispatch after it had either actual knowledge of the fraud or notice of facts which, in the exercise of due diligence, would have led to knowledge thereof.

The district judge referred to certain facts which had been developed since his 1971 opinion and found that the record as amplified disclosed no delay on the part of Hopkins. In our opinion, the facts to which the district court referred represent grist for the mill of the jury similar to those detailed by Judge Butzner in his opinion on the first appeal; and since they are susceptible of conflicting inferences on the issue of reasonable diligence, that question must be submitted to the .jury. “The concept of due diligence is not imprisoned within the frame of a rigid standard; it is protean in application. * * * Inevitably the factual issue of due diligence involves, to some extent at least, the state of mind of the person whose conduct is to be measured against this test and it is simply not feasible to resolve such an issue on motion for summary judgment.” Azalea Meats, Inc. v. Muscat, supra, 386 F.2d at 9 & 10. This, of course, accords with the principle followed in this circuit that summary judgment “should be granted only whei’e it is perfectly clear that no issue of fact is involved * * * and this is true even where there is no dispute as to the evidentiary facts in the case but only as to the conclusion to be drawn therefrom.” Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4 Cir. 1950).

Finding summary judgment inappropriate on the issue of Hopkins’ promptitude, we reverse the decree of the district court in that respect and remand for a jury trial upon the issue of whether Hopkins demanded rescission within a reasonable time after it had actual knowledge of the grounds for rescission or notice of facts which, in the exercise of due diligence, would have led to actual knowledge of such grounds. Since this case has now been pending for over ten years, a final determination of the issues and the rights of the litigants should be made at the earliest possible date. To that end we also direct the district court to submit to the jury the issue with respect to the Section 13 limitation under the first count of the complaint in accordance with our mandate on the first appeal.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      . 15 U.S.C. § 77Z(2)

      . 15 U.S.C. § 78j(b)

      . 17 C.F.R. § 240.10b-3

      . 17 C.F.R. § 240.10b-5

      . 15 U.S.C. § 78o(c)(l)

      . 15 U.S.C. 77q(a)

      . Johns Hopkins University v. Hutton, 422 F.2d 1124 (4Cir. 1970).

      . 15 U.S.C. § 77m

      . Johns Hopkins University v. Hutton, 326 F.Supp. 250 (D.C.Md.1971).

      . See Simon v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 482 F.2d 880 (5 Cir. 1973) ; Chris-Craft Industries, Inc., v. Piper Aircraft Corp., 480 F.2d 341 (2 Cir. 1973); cert. denied 414 U.S. 910, 94 S.Ct. 232, 38 L.Ed.2d 148 (1973) ; Cf. Kasner v. H. Hentz & Co., 475 F.2d 119 (5 Cir. 1973), cert. denied 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 57 (1973), Ruder & Cross, Limitations on Civil Liability Under Rule 10b-5, Duke Law Journal, Vol. 1972:1125.

      . Johns Hopkins University v. Hutton, supra, Note 9, at 265 of 326 F.Supp.

      . The order entered on January 10, 1972, granting Hutton leave to amend its answer stated that it was “without prejudice to and without waiver of defendants’ contentions set forth in 'their counsels’ letter dated July 1, 1971, addressed to the court and on file.” The letter referred to stated, inter alia, Hutton’s contention that it was not required to affirmatively plead Hopkins’ failure to assert rescission promptly after receiving inquiry notice since Hopkins had the burden of proving this as an element of its action for rescission. The question of the burden of proof was not before us on the former appeal, but it appears that Hutton’s position on this point is well taken.
      We note that the courts have consistently held that compliance with the limitation provision of Section 13 of the ’33 Act is an essential ingredient of a private action under Section 12(2) which must be affirmatively asserted by the plaintiff. Newberg v. American Dryer Corporation, 195 F.Supp. 345 (E.D.Pa.1961) ; Premier Industries v. Delaware Valley Financial Corp., 185 F.Supp. 694 (E.D.Pa.1960) ; Shonts v. Hirliman, 28 F.Supp. 478 (S.D.Cal.1939) ; Fischman v. Raytheon Mfg. Co., 9 F.R.D. 707 (S.D.N.Y. 1949), reversed on other grounds 188 F.2d 783 (2 Cir. 1951). Apparently this requirement of affirmative pleading under Section 13 has been applied in actions at law as well as those equitable in nature. With respect to counts II-VII, in the general area of rescission it appears that the requirement of prompt action is an element of the plaintiff’s ease, and the burden is upon the rescinding party to show that he acted promptly in seeking rescission. See Friedman, Delay as a Bar to Rescission, Cornell Law Quarterly, Vol. 26 at 428, 452 (1941). The basis for placing this burden upon the rescinder is not addressed to the issue of liability, but stems from the drastic nature of the relief sought by the plaintiff, and it should be borne in mind that, failing rescission, the avenue of damages is still open to him. See Baumel v. Rosen, 412 F.2d 571 (4 Cir. 1969) ; Cf. Myzel v. Fields, 386 F.2d 718 (8 Cir. 1967), cert. denied 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed .2d 1143.

      . Johns Hopkins University v. Hutton, 343 F.Supp. 245 (D.C.Md.1972).

      . Id. at 248.


author: DYER, Circuit Judge:

text:
    Jimmy Lynn GREEN, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-3721.
    United States Court of Appeals, Fifth Circuit.
    Dec. 17, 1973.

      James E. Maggard, Jr., Staff Counsel for Inmates, Texas Dept, of Corrections, Rosharon, Tex. (Court-appointed), for petitioner-appellant.
    John L. Hill, Atty. Gen., Guy Fisher, Thomas M. Pollan, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   DYER, Circuit Judge:

In this appeal from the district court’s denial of his habeas corpus petition, Green contends that his state conviction must fall due to the state’s failure to produce a defense witness, subpoenaed on the day of trial, who was incarcerated at the time in the Dallas County jail. In addition, Green argues that alleged errors of his attorney in failing to preserve this point for appeal should not be binding on him. We affirm.

Green was convicted in a jury trial of murder with malice, stemming from the fatal shooting of Freddie Lee Turner in a Dallas County bar. After two continuances were granted at Green’s request, the case was called for trial on November 18, 1969. On that date, Green’s court-appointed attorney for the first time made application for the subpoena of Olin Ray Allen as a defense witness. However, Allen was not at the address listed on the subpoena since he was confined at the time in the county jail. Allen never appeared at trial, and defense counsel failed to call him as a witness or move for a continuance in view of the witness’ absence. Moreover, counsel failed to request the court to issue a warrant of attachment for the witness when he failed to appear.

During the trial, Green took the stand in his own defense, following the testimony of several eyewitnesses to the fatal shooting who were called as prosecution witnesses. Despite his protestations that the homicide was justified by self-defense, Green was convicted. By timely appeals, he exhausted available state remedies, and subsequently filed his habeas petition in the court below, which found against him on the merits.

We are unpersuáded by Green’s contention that the state’s failure to produce Allen at the trial was, under the circumstances, a denial of his constitutional right to have compulsory process for obtaining witnesses. See Washington v. Texas, 1967, 388 U.S. 14, 17-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019. No charge is made of a deliberate obstruction by the state in this case which operated to deprive the petitioner of potentially useful testimony. On the contrary, the late subpoena sought by the defense, which indicated an incorrect address of the witness; was nonetheless served in accordance with the controlling Texas statute. Moreover, Green evidenced no desire to have Allen produced inasmuch as the prospective witness was never called at' trial, nor did counsel move for a continuance or seek an attachment so that Allen could be produced. Hence, the state court was left totally unaware of the defendant’s desire to call Allen on his behalf and remained unenlightened in this regard until Green filed an amended motion for a new trial. In light of these facts, the purposeful state activity operating to deny the right of compulsory process which the Supreme Court invalidated in Washington v. Texas, supra, is simply not here present.

On the other hand, we cannot reasonably view counsel’s failures in this regard as so egregious as to deny Green’s right to the effective assistance of counsel. The issue of self-defense, to which the prospective witness purportedly would have addressed himself, was thoroughly explored by counsel, particularly since other eyewitnesses and Green himself testified concerning the relevant events at trial. Moreover, Green readily concedes that his attorney discharged his duties at trial in a manner within the constitutionally demanded standard. We cannot find on the record before us that the trial was a mockery of justice due to the omissions of counsel or that “the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.’’ Williams v. Beto, 5 Cir. 1965, 354 F.2d 698, 704.

Since we find the district court’s determination correct in all respects, the judgment is

Affirmed.

      . Applicable Texas law provides for attachment as a means for securing the attendance of any subpoenaed witness who fails to appear in a criminal trial. Art. 24.12, Vernon’s Annot.Code of Crim.Pro. This statutory method is not limited to securing prospective witnesses incarcerated in a state institution, see Art. 24.13, hence counsel could have properly moved for an attachment in this case despite his ignorance of the fact that Allen was confined in the county jail.

      . Washington v. Texas involved two Texas statutes which disqualified a participant accused of crime from testifying in a criminal trial on behalf of his co-participant, although the participant was permitted under the statutes to take the stand as a prosecution witness. The Supreme Court determined that a defendant’s Sixth Amendment rights were violated by Texas’ “arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief.” 388 U.S. at 22, 87 S.Ct. at 1925. This type of arbitrary and deliberate exclusionary policy is far removed from the instant case where adequate procedures for securing the attendance of witnesses were provided under Texas law.


author: PER CURIAM.

text:
    Clayton MILLER and Dennis Shea et al., Appellees, v. Captain Carl ACKERMAN et al., Appellants. George KLINKHAMMER et al., Appellees, v. James R. SCHLESINGER, Secretary of Defense, et al., Appellants.
    Nos. 73-1426, 73-1484.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1973.
    Decided Dec. 19, 1973.

      Captain Allan A. Ryan, Jr., U. S. Marine Corps, for appellants.
    Donald J. Heffernan, St. Paul, Minn., for Klinkhammer and others.
    Richard H. Osborne, Lincoln, Neb., for Miller and others.
    Before GIBSON, LAY and HEANEY, Circuit Judges.
   PER CURIAM.

The issue presented in these consolidated appeals is whether a local commander of a Marine Corps Reserve Unit may prohibit the wearing of short-hair wigs as a means of achieving compliance with Marine Corps grooming standards. The plaintiffs attend drills one weekend per month and spend two weeks annually at summer camp with the Marine Corps Reserve. Their commanding officers proscribed the use of short-hair wigs to cover the reservists’ natural hair, which is longer than that allowed by the Marine Corps grooming code. The plaintiffs were ordered to discontinue use of the wigs, on penalty of forfeiture of credit for satisfactory attendance at drills. Failure to obtain credit for satisfactory attendance at drills will result in an order to active duty, pursuant to 10 U.S.C. § 673(a).

The United States District Courts for the District of Nebraska, Honorable Robert Van Pelt, and the District of Minnesota, Honorable Phillip Neville, 359 F.Supp. 67, independently passed on the claims and held generally in favor of the plaintiffs, enjoining the defendants from enforcing the ban against properly trimmed short-hair wigs.

Judge Van Pelt adhered to the reasoning of the First Circuit in Friedman v. Froehlke, 470 F.2d 1351 (1st Cir. 1972), which concluded that “insofar as members of the reserve are concerned, who, under their contracts, are allowed to work and live in civilian society for most of the time, the right to wear their hair as they please is not so trivial as to be denied without any service-connected reason.” Id. at 1353.

Judge Van Pelt found jurisdiction to entertain the suit under 28 U. S.C. § 1361, as an action in the nature of mandamus. Judge Neville found the jurisdictional requirements under 28 U. S.C. § 1331 satisfied and alternatively relied on mandamus jurisdiction. We find jurisdiction under 28 U.S.C. § 1361. We need not decide whether jurisdiction lies under § 1331, as found by the First Circuit in Friedman v. Froehlke, supra. It has long been recognized that mandamus is the appropriate remedy where federal officials are acting outside the zone of their permissible discretion and contrary to law. State Highway Commission v. Volpe, 479 F.2d 1099, 1104-1105 n. 6 (8th Cir. 1973); McGaw v. Farrow, 472 F.2d 952, 957 (4th Cir. 1973); Nixon v. Secretary, 422 F.2d 934, 939 (2d Cir. 1970); Harris v. Kaine, 352 F.Supp. 769, 772 (S.D.N.Y. 1972); Cortright v. Resor, 325 F.Supp. 797, 812 (E.D.N.Y.), rev’d on other grounds, 447 F.2d 245 (2d Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972). As the Second Circuit has observed: “[0]fficial conduct may have gone so far beyond any rational exercise of discretion as to call for mandamus even when the action is within the letter of the authority granted.” United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). This is what is alleged here.

We move then to the merits. This circuit in Bishop v. Colaw, 450 F. 2d 1069 (8th Cir. 1971), has recognized the constitutional right of an individual to style his own appearance without arbitrary interference by the government. In doing so, we have joined the First, Second, Third, Fourth and Seventh Circuits in recognizing “that choice of personal appearance is an ingredient of an individual’s personal liberty, and that any restriction on that right must be justified by a legitimate state interest reasonably related to the regulation.” Dwen v. Barry, 483 F.2d 1126, 1130 (2d Cir. 1973).

Here we think that it is important to note that the grooming standards of the Marine Corps are not being challenged by the reservists. Cf. Stradley v. Andersen, 478 F.2d 188 (8th Cir. 1973). The protest is directed to the ban on short-hair wigs which otherwise conform to the grooming code. In other words, the reservists challenge the right of the Marine Corps to regulate the manner in which they achieve compliance with the appearance standards. The no-wig rule encroaches substantially on plaintiffs’ right to govern their personal appearance outside their limited duty in the Marine Corps Reserves. We find such interference with plaintiffs’ personal liberties can only be justified on the basis of legitimate competing interests. The record is void in demonstrating such interests. In essence, the only reason extended for the proscription is that the Marine Corps thinks it is good for the spirit of the Corps. However, the record shows that the wigs worn are neat and presentable. Moreover, there is no demonstration that the wigs in any way inhibit the reservists’ performance or that they affect discipline or training. In fact, in the Nebraska case the Marine Corps stipulated:

That the short hair wigs worn by the plaintiffs to reserve unit meetings are safe and present no health hazard, and do not interfere with the tasks required to be performed by the plaintiffs while on duty.

Under the circumstances we find no rational basis for the proscription of short-hair wigs and sustain the orders of the district courts enjoining any proscription of the use of short-hair wigs in the reservists’ weekend training program. In the Nebraska case, Judge Van Pelt extended his proscription to the wearing of wigs at summer camp. We find this issue was not fully developed and not properly before the district court. We therefore limit our order, at this time, to the regulation only as it affects weekend training programs.

The judgment in No. 73-1426 is affirmed as modified; the judgment in No. 73-1484 is affirmed.

      . See, e. g., Dwen v. Barry, 483 F.2d 1126 (2d Cir. 1973) ; Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972) ; Stull v. School Board, 459 F.2d 339 (3d Cir. 1972) ; Massie v. Henry, 455 F.2d 779 (4th Cir. 1972) ; Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970).