author: HAMLEY, Circuit Judge:

text:
    Thomas WORKMAN et al., Plaintiffs-Appellants, v. John MITCHELL, in his official capacity as the Attorney General of the United States, et al., Defendants-Appellees.
    No. 73-3585.
    United States Court of Appeals, Ninth Circuit.
    Aug. 21, 1974.

      David Allen (argued), of Legal Services Center, Seattle, Wash., for plaintiffs-appellants.
    Marc P. Richman (argued), of U. S. Dept, of Justice, Appellate Section, Crim.Div., Washington, D. C., for defendants-appellees.
    Before HAMLEY, ELY and TRASK, Circuit Judges.
   HAMLEY, Circuit Judge:

Thomas Workman, Armando Vargas, Jerry Desmond and Lanier Ramer, while incarcerated at the Federal Penitentiary, McNeil Island, Washington, became involved in a work stoppage which led to disciplinary proceedings against them. As an outgrowth of those proceedings, these four federal prisoners brought this action for declaratory, injunctive and mandamus relief against the Attorney General of the United States, the Director of the Federal Bureau of Prisons, and the Warden of McNeil Island Penitentiary.

Plaintiffs brought the action on behalf of themselves and a class consisting of all federal prisoners incarcerated at the penitentiary. They assert four general claims for relief: (1) in numerous respects the procedures followed by prison officials in punishing plaintiffs by ordering forfeiture of good time credits failed to accord plaintiffs due process of law; (2) the manner of punishing plaintiffs for asserted misconduct, whereby they were placed in filthy, crowded and otherwise objectionable isolation cells for substantial periods of time, constituted cruel and unusual punishment in violation of the Eighth Amendment; (3) in determining plaintiffs’ guilt and punishment on charges of misconduct, the defendants failed to follow their own regulations; and (4) in determining plaintiffs’ punishment on various misconduct charges, defendants failed to abide by the Administrative Procedures Act, 5 U.S.C. § 500 et seq.

The district court denied plaintiffs’ motion for a class action, apparently on the ground that “the relief with respect to the four named plaintiffs will inure to the benefit of present and future persons incarcerated ’ at McNeil Island. 11

After a non-jury trial, the district court entered its findings of fact, conclusions of law and judgment. As thereafter amended, the court first found generally that during the period commencing on or about February 22, 1971, and ending on or about March 7, 1971, inmates of the McNeil Island Penitentiary went on strike and refused to report to work. The court found that about eight hundred of the eleven hundred inmates of the penitentiary were involved in the strike. The court further found that the prison officials were justified in believing, and in acting on the belief, that a potentially dangerous and explosive situation existed endangering the lives of the participants, non-participants, and prison staff at all levels, and that prison property, as well as that of inmates, was in jeopardy of injury or destruction.

The district court then entered findings stating, with respect to each of the four individual plaintiffs, the nature of the charges made, the disciplinary proceedings had, and the punishments imposed. The court found that the conditions in the segregation cells during the time of the strike and shortly thereafter were inadequate, being characterized as filthy and crowded, with little opportunity for exercise and personal hygiene. The court further found, however, that these conditions were due in considerable part to the misconduct of the inmates using the segregation units. The court also found that (1) during the strike the drastic actions on the part of the prison officials, i. e., summary “mandation” of prisoners to segregation, was reasonable due to the extremity of the circumstances, and (2) the crowded conditions of the segregation units during the periods in close proximity to the strike did not reflect the normal policy of the prison officials under ordinary circumstances nor the normal condition of habitation.

On the basis of these amended findings, the district court concluded that the confinement in segregation, despite the periods of deplorable conditions, did not constitute cruel and inhuman punishment. The court further concluded:

“3. That the proceedings in which each of the plaintiffs lost their good time did not meet minimum standards of due process as required by the principles laid down in Morrissey v. Brewer, 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484] (1972) and Gagnon v. Searpelli, 411 U.S. 778 [93 S.Ct. 1756, 36 L.Ed.2d 656] (1973); said proceedings violated the defendants’ own rules and regulations then in force, and, therefore, defendants, their agents and employees, acted arbitrarily and capriciously and said proceedings are void as to each plaintiff.”

Insofar as here relevant, the amended judgment:

(1) Declared that the proceedings before the prison Adjustment Committee and Good Time Forfeiture Boards in which plaintiffs lost good time or were remanded to segregation did not meet the minimum requirements of due process and violated defendants’ own regulations then in force, and therefore defendants, their agents and employees acted arbitrarily and capriciously;

(2) Ordered defendants to forthwith restore the plaintiffs’ good time lost as a result of proceedings by defendants, and expunge the charges and proceedings from plaintiffs’ inmate records, and

(3) Ordered defendants to credit plaintiffs with earned good time from the time - of the initial forfeiture until restoration pursuant to this order, unless good time loss has been imposed because of conduct arising subsequent to the initial forfeiture and independent of these proceedings.

Plaintiffs appeal, seeking the following additional items of relief:

(1) A judicial declaration to the effect that the procedural and substantive rights announced in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (revocation of parole), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (revocation of probation) attach to federal prison disciplinary hearings;

(2) A judicial declaration that the punishment imposed on plaintiffs “was so disproportionately severe to the nature of the alleged offense that it violated the Due Process Clause of the Fifth Amendment,” because it constituted “arbitrary and capricious punishment;” and

(3) Relief for the class plaintiffs seek to represent similar to that accorded the named plaintiffs.

Plaintiffs claim district court jurisdiction under 28 U.S.C. §§ 1331 (federal question), 1361 (mandamus), and 2201-2202 (declaratory judgment), and under 5 U.S.C. §§ 500 et seq. (Administrative Procedure Act).

The district court unquestionably had jurisdiction, under the mandamus statute, 28 U.S.C. § 1361, to require defendants, all of whom were officers or employees of the United States, or an agency thereof, to perform the ministerial duty of complying with their own regulations. United States v. Walker, 409 F.2d 477, 481 (9th Cir. 1969). In fulfillment of this requirement it was proper to order defendants to undo the harm they had done by failing to comply with their regulations. This action by the district court is not challenged on appeal.

Aside from this mandamus relief, obtained by the named plaintiffs, and sought by them for the class they seek to represent, all of the additional relief they seek is declaratory in nature. The Federal Declaratory Judgment Act does not establish a new basis for jurisdiction in the federal courts; it merely establishes a new remedy, available in cases in which jurisdiction otherwise exists. The question, therefore, is whether the mandamus statute provides a jurisdictional basis for the declaratory relief plaintiffs seek.

Defendants assert that the district court did not have jurisdiction under the mandamus statute to require defendants to comply with due process requirements in the administration of prison disciplinary proceedings, and that, therefore, the district court also lacked jurisdiction to provide the declaratory relief requested.

Defendants rely primarily upon Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir. 1970), where this court stated that section 1361 “did not enlarge the generally recognized scope of mandamus relief,” and that mandamus will not lie “unless it appears that the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt.” Defendants argue, therefore, that mandamus is not available to compel federal officers to comply with due process requirements in the administration of prison disciplinary proceedings because the requirements of due process in that context are neither “plainly prescribed” nor “free from doubt.”

“In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”

The defendants’ reliance upon Jarrett v. Resor, supra, is misplaced. There we held that the complaint failed to invoke jurisdiction under section 1361 because it alleged “at most that in fulfilling their duty of acting upon his request for a discharge from the Army, [the defendants] either abused their discretion, incorrectly found,the facts, or misapplied the law.” Id. at 216-217. Thus, mandamus jurisdiction was improperly invoked in that case because there was no allegation that defendants had failed to perform any ministerial duty, be it established by regulation, statute or constitutional provision. Here, however, the complaint clearly alleges that the disciplinary regulations adopted by the defendants, governing the procedures to be followed in imposing prison discipline, fail to comply with the requirements of due process. The district court does have jurisdiction under the mandamus statute to compel such compliance.

Defendants suggest, however, that if the complaint alleges a failure to perform duties required by the Constitution, mandamus jurisdiction is available only if the precise elements of those duties have previously been prescribed. Decisions of this circuit, and of other circuits, suggest otherwise. See, Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972); Martinez v. Richardson, 472 F.2d 1121, 1123-1124 (10th Cir. 1973); Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966).

We conclude that the district court did have jurisdiction under section 1361 to order compliance with due process requirements in the administration of prison disciplinary proceedings, and it follows that the court also had jurisdiction to declare the due’process requirements applicable to such proceedings.

But defendants call attention to the requirement of section 2201 that there be “a case of actual controversy” within the court’s jurisdiction. Defendants correctly equate this statutory requirement with the case or controversy requirement of Art. Ill, Sec. 2 of the Constitution. As the Supreme Court has recently said, the complaint must

“satisfy the threshold requirement imposed by Art. Ill of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy.” O’Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).

There is no doubt that a case or controversy, in the constitutional sense, existed when the complaint in this action was filed and up to the time defendants decided not to appeal: up to then plaintiffs, for themselves and for the class they sought to represent, were seeking to set aside disciplinary sanctions which had been invoked against them, and to obtain a judicial declaration that prison disciplinary procedures were in violation of defendants’ own regulations and of the Due Process Clause of the Fifth Amendment and the cruel and unusual punishment provision of the Eighth Amendment.

But defendants correctly point out that the case or controversy must continue to exist at the time the appellate court is asked to act. See Steffel v. Thompson, 415 U.S. 452, 459, n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

A case or controversy exists at the time of appellate review if the appellants have shown that, as of that time, “some threatened or actual injury resulting from the putatively illegal action” continues to exist. See Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). Defendants urge that plaintiffs have showed no threatened or actual injury as of the present time because: (1) all effects of the 1971 disciplinary proceedings have been erased by the district court; and (2) three of the four plaintiffs have been paroled and the remaining plaintiff, Ramer, has been transferred to another federal prison.

Whatever merit these contentions might have with reference to the named plaintiffs, they have no bearing on the grievances of the class plaintiffs sought to represent, namely, all federal prisoners incarcerated at McNeil Island Penitentiary. No members of this class have had, as a result of this litigation, the erasure of all effects of past disciplinary proceedings which may have been had in violation of defendants’ own regulations. All members of this class are potentially subject to actual injury as a result of future disciplinary procedures which may fail to conform to constitutional guarantees, or which may result in punishment which does not comport with the Eighth Amendment or the Due Process Clause of the Fifth Amendment.

It thus becomes necessary for us, at this point, to determine whether the district court erred in denying plaintiffs’ motion for a class action. If it did err in this regard, then a case or controversy continues to exist whether or not the named plaintiffs have a present grievance.

As noted above, the district court apparently denied a class action on the ground that “the relief with respect to the four named plaintiffs will inure to the benefit of present and future persons incarcerated at McNeil Island. yy

This might or might not have been an adequate réason for denying a class action, had the district court thereafter entered a declaratory judgment which would redound to the benefit of the class. See Mead v. Parker, 464 F.2d 1108, 1112 (9th Cir. 1972). But as events turned out, no such declaratory relief was granted and nothing in the amended judgment which was entered overcomes the grievances asserted on behalf of the class.

However, defendants suggest another reason why it would now be inappropriate to establish such a class action. This reason is that three of the named plaintiffs are now on parole and the fourth has been transferred to a federal prison at Terre Haute, Indiana. Defendants urge that none of the named plaintiffs are presently members of the class they wish to represent, and that a named plaintiff cannot represent a class of which he is not a member.

Defendants cite two decisions in support of this proposition. In one of them, Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), it was shown that the named plaintiff had never been a member of the class. In the other decision, Norman v. Connecticut State Board of Parole, 458 F.2d 497 (2d Cir. 1972), the plaintiff brought his class action challenging state parole revocation proceedings while he was on parole. But during the pendency of his appeal, the criminal charges against him were nolled by a state court. Since there were thus no outstanding criminal charges against the sole named plaintiff, and no parole revocation hearing was pending against him, the named plaintiff was held to be no longer a member of the class he sought to represent. The court accordingly remanded the case to the district court with directions to dismiss the action without prejudice on grounds of inadequacy of representation, unless within thirty days another member of the class was granted leave to intervene.

In a civil rights action attacking the constitutionality of state statutes relating to detention of minors taken into custody by state officials, this court held that any basis for mooting the case as to the named plaintiff, would not preclude the continuing jurisdiction of the district court as to others of the plaintiff’s original class, nor bar her litigating the issue in their behalf. Rivera v. Freeman, 469 F.2d 1159, 1163 (9th Cir. 1972).

We think it is particularly appropriate to apply this holding in the case before us, where the asserted removal of one of the named plaintiffs from the class was accomplished by the act of one of the defendants, the Warden of McNeil Island Penitentiary, in transferring the plaintiff, Ramer, from McNeil Island Penitentiary to the federal penitentiary at Terre Haute, Indiana. However meritorious the motive may have been for this transfer, it would be intolerable to permit a defendant, in this manner, to destroy the representative capacity of a named plaintiff. We accordingly hold that, under the circumstances, plaintiffs have standing to represent a class consisting of all present prisoners at McNeil Island Penitentiary.

We have not overlooked the fact that Rule 23, F.R.Civ.P., pertaining to class actions, sets out a number of prerequisites to a class action. However, defendants did not, in the district court, and do not on appeal, contend that any of these prerequisites are absent, other than as discussed above.

We therefore hold that, pursuant to Rule 23, F.R.Civ.P., plaintiffs should be permitted to represent a class consisting of all present prisoners incarcerated at McNeil Island Penitentiary. The district court should have no difficulty prescribing reasonable notice requirements with regard to members of the class. While we have held that plaintiffs have standing to represent the class, we think the district court, on remand, should provide a reasonable opportunity for one or more present McNeil Island prisoners to intervene for the purpose of also ¡representing the class. This would comport with the procedure adopted in Norman v. Connecticut State Board of Parole, 458 F.2d 497 (2d Cir. 1972).

Since we have determined that this case should proceed, on remand, as a class action,¿it follows that a case or controversy continues to exist, and the district court has continuing authority under 28 U.S.C. § 2201 to grant declaratory relief. The establishment of a class action also enables the district court to consider whether members of the class are entitled to relief, under 28 U.S.C. § 1361, because of possible past violations of defendants’ own rules and regulations in meting out discipline in connection with the 1971 strike at the prison.

Turning to the merits, plaintiffs first argue that the disciplinary regulations and practices at McNeil Island Penitentiary violate plaintiffs’ rights to procedural due process as guaranteed by the Fifth Amendment. In particular, plaintiffs complain of the procedures used in the forfeiture of earned statutory good time and in confining plaintiffs in punitive segregation. Plaintiffs point out that the forfeiture of good time credits rendered all of them ineligible for parole for two and a half years, after which period the district court ordered restoration of forfeited good time and the ex-pungement of their prison records.

After the disciplinary proceedings here in question, the Bureau of Prisons issued Policy Statement No. 7400.6A (August 13, 1971), which now governs proceedings before the prison forfeiture boards, and Policy Statement No. 7400.-5B (June 6, 1972), which now governs proceedings before the prison adjustment committees. However, plaintiffs contend that these new rules and regulations are much like the previous rules and regulations, and are subject to the same constitutional attack.

In essence, plaintiffs contend that the former and present rules and regulations fail in numerous respects to meet the constitutional tests announced in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (revocation of parole), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (revocation of probation).

In its order amending the original findings of fact, conclusions and judgment, the district court first stated that the original findings, conclusions and judgment, insofar as they declared that defendants’ new rules and regulations substantially complied with “minimal” due process requirements, were “gratuitous and irrelevant,” and were “incorrectly incorporated and went beyond the issues.” But the amended conclusions of law state that the proceedings in which each of the plaintiffs lost their good time “did not meet minimum standards of due process as required by the principles laid down in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

This holding by the district court pertains to proceedings held under, but in non-compliance with, rules and regulations which are no longer in effect, and accordingly this pronouncement would seem to have no effect which we need to notice. However, the quoted language in the district court’s amendatory order, standing alone, could possibly be' taken as an implied judicial declaration that all federal prison disciplinary rules and regulations must comport with the principles announced in Morrissey and Gag-non. . *

It is apparent that defendants did not construe this language as amounting to such an implied judicial declaration, since they are not appealing. And when we examine this language in the context of the entire amendatory order, we con-elude that the district court did not intend such a declaration. In its order, that court stated that the “real and intended thrust” of the court’s judgment “was that the defendants did not comply with their own rules and regulations then in force with respect to Adjustment Committee and Good Time Forfeiture Board hearings. . . .” The court added: “It was felt unnecessary to reach alleged constitutional issues.”

We therefore decline to accept the district court’s quoted language as a judicial declaration that all federal prison disciplinary rules and regulations must comport with Morrissey and Gagnon. In any event, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), decided by the Supreme Court during the pendency of this appeal,' renders any such judicial declaration inappropriate.

Wolff was a civil rights class action brought by and on behalf of inmates of a Nebraska state prison. The court of appeals (483 F.2d 1059 (1973)) had held that the procedural requirements outlined in Morrissey and Gagnon should be generally followed in prison disciplinary hearings. The Supreme Court, however, held in Wolff, that the Morrissey-Gagnon procedures need not in all respects be followed in disciplinary cases in state prisons. Instead, the Supreme Court prescribed the following much more limited constitutional requirements for state prison disciplinary proceedings:

(1) Written notice of the claimed violations should be given to the inmate at least twenty-four hours in advance of a disciplinary hearing.

(2) The inmate should receive a written statement by the fact-finders as to the evidence relied on and reasons for the disciplinary action.

(3) The inmate should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.

(4) Where an illiterate inmate is involved, or where the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff.

The Supreme Court did not, of course, preclude prison officials from providing additional procedural safeguards, but this was left to their sound discretion. While Wolff involved state prison inmates, it can hardly be argued that federal prison inmates are constitutionally entitled to greater procedural safeguards than are constitutionally required for state prisoners.

But, in oral argument before this court, plaintiffs argued that the holding, in Wolff that the Morrissey-Gagnon guidelines are not fully applicable, should be disregarded here because the discipline exerted against plaintiffs actually rendered them ineligible for parole. Because of this assertedly more grievous effect of the discipline meted out in this case, plaintiffs argue, the result was more analogous to parole or probation revocation, than to normal prison discipline, and hence the Morris-sey-Gagnon guidelines should apply.

We question the factual premise of this argument. The Nebraska statute involved in Wolff, quoted in note 6 of that opinion, provides that the total of all good behavior reductions shall be deducted from the inmate’s minimum term, to determine the date of his eligibility for release on parole. The Nebraska statute also provides that determinations of loss of good time are directly relevant to receiving parole, and all reductions are to be reported to and considered by parole authorities.

In any event, we find nothing in the Supreme Court’s opinion in Wolff which directly, or by implication, limits the holding in that decision to cases in which prison discipline does not affect eligibility for parole.

We therefore conclude that in the remanded district court proceedings which must be had, the district court should determine and judicially declare whether defendants’ disciplinary rules and regulations currently in effect meet the four constitutional requirements announced in Wolff, as outlined above. To the extent, if any, that the current prison rules are found not to conform to the above-specified requirements of Wolff, that decision makes it clear that the consequences of such a determination are to be applied to prison disciplinary proceedings held after Wolff was decided on June 26, 1974.

Plaintiffs argue, finally, that the district court erred in failing to judicially declare the punishment imposed on plaintiffs and their class “was so disproportionately severe to the nature of the alleged offense that it violated the Due Process Clause of the Fifth Amendment.” In this connection, plaintiffs call attention to their segregation, forfeiture of good time, and loss of parole eligibility for two and a half years, and the loss of other privileges imposed upon them.

None of the plaintiffs is still suffering from any of these disciplinary actions. We can perceive no useful purpose to be served by a judicial declaration pertaining to conditions which no longer exist, and which may never occur again. The prison strike which gave rise to this discipline created an emergency situation which had to be dealt with on an emergency basis. It would be futile for a court to attempt to lay down rules governing the extent to which discipline may constitutionally be imposed to meet future hypothetical emergencies, When and if such an eventuality occurs, prison inmates have, by means of habeas corpus and attendant pendent relief, a means of obtaining judicial redress appropriate to the then-existing facts.

We conclude that the district court did not abuse its discretion in declining to render a judicial declaration pertaining to the severity of the discipline, measured by the Fifth and Eighth Amendments.

Reversed in part, affirmed in part, and remanded to the district court for further proceedings consistent with this opinion.

      . The district court did not state in what respects defendants violated their own rules and regulations. However, since defendants appear to concede on appeal that such violations did occur, and do not challenge findings, conclusions and judgment in this regard, we are not called upon to explore the nature of these violations.

      . In their amended complaint, plaintiffs predicated this grievance not upon the Due Process Clause of the Fifth Amendment, but upon the Eighth Amendment stricture against cruel and unusual punishment.

      . Defendants do not expressly concede that section 1361 provides the jurisdiction for this district court action. They state that their discretion not to contest this district court action was influenced by the fact that, in any event, plaintiffs could have obtained this relief under the habeas corpus statute, 28 U.S.C. § 2241.

      . 28 U.S.C. § 2201 reads:

      . Even if there were merit to the defendants’ jurisdictional argument at the time of the district court proceedings, the subsequent decision of the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), discussed later in this opinion, resolves any doubts as to the due process requirements applicable to prison disciplinary proceedings.

      . The one express exception stated in section 1361 — Federal tax questions — is not involved in our case. The declaratory judgment statute is, with this exception, all inclusive and jurisdiction thereunder “is to be liberally exercised in achieving the Act’s remedial objectives.” 6A Moore’s Federal Practice § 57.21 [4], at 57-232 (2d ed. 1974).

      . We observe that this contention is to be distinguished from the argument that the release of a prisoner on parole pending determination of his action to have prison regulations invalidated moots the action. This latter argument has been rejected. See Morales v. Schmidt, 494 F.2d 85, 86-87 (7th Cir. 1974).

      . The Warden secured an order authorizing him to transfer Ramer and two of the other named plaintiffs to other penal institutions “in the interest of the security and safety of the inmate population” at McNeil Island. It was made a condition of this order that defendants shall produce the transferred plaintiffs before the district court when and if ordered to do so for testimony or for such other purposes as the court may direct. An order was thereafter entered transferring these plaintiffs to McNeil Island Penitentiary, near Tacoma, Washington, where the trial was to be held. After the trial, these plaintiffs were re-transferred to other institutions.
      Since the transfer of Ramer to another institution was thus not allowed to interfere with Iris ability to prosecute his personal grievances at the trial, it is difficult to see why such transfer should impair the ability of plaintiff Ramer to represent the class in further proceedings.

      . Since we have determined that the district court had jurisdiction and authority, under 28 U.S.C. §§ 1361 and 2201-2202, to deal with all grievances asserted by plaintiffs, we need not consider whether the district court also had jurisdiction under the other statutes relied upon by plaintiffs, namely 28 U. S.C. § 1331 or 5 U.S.C. §§ 500 et seq.
      It is worth noting, however, that one source of district court jurisdiction which plaintiffs did not invoke might have provided all of the basic jurisdiction that was needed. We refer to the habeas corpus statute, 28 U.S.C. § 2241. It appears to be fairly well established that, where there is no exhaustion of state remedies problem, federal habeas corpus actions are now available to deal with questions concerning both the duration and the conditions of confinement. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972). See also Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The fact that plaintiffs did not allege jurisdiction under section 2241 is of no consequence, inasmuch as they named the Warden a defendant. See Padilla v. Ackerman, 460 F.2d 477, 478 (9th Cir. 1972); Bennett v. Allen, 396 F.2d 788 (9th Cir. 1968). See also note 3, above.

      . Wolff was decided subsequent to the decision of this court in Clutchette v. Procunier, 497 F.2d 809, decided on April 25, 1974, which decision involves some of the same issues, arising in a civil rights class action involving state prisoners. In the light of Wolff, Clutchette is now under further consideration by this court on a petition for rehearing.


source: Caselaw Access Project

author: SKOPIL, District Judge:

license: Public Domain

text:
    In the Matter of THRIFT SHOE CO., INC., Debtor. The NATIONAL CASH REGISTER CO., Appellant, v. Curtis B. DANNING, Receiver, and Thrift Shoe Co., Inc., Appellees.
    No. 72-1875.
    United States Court of Appeals, Ninth Circuit.
    Sept. 13, 1974.

      N. Stanley Leland (argued) of Leland, Hoffman & Kalik, Beverly Hills, Cal., for appellant.
    Richard F. Broude (argued) of Gen-del, Raskoff, Shapiro & Quittner, Los Angeles, Cal., for appellees.
    Before DUNIWAY and GOODWIN, Circuit Judges, and SKOPIL, District Judge.

       Honorable Otto R. Skopil, Jr., District of Oregon, sitting by designation.

   OPINION

SKOPIL, District Judge:

Appellant, The National Cash Register Co. (NCR), claims a security interest in cash registers sold to the debtor, Thrift Shoe Co., Inc. (Thrift), under a sales contract and security agreement.

Before the entire purchase price of the cash registers had been paid, Thrift filed a petition for an arrangement under Chapter XI of the Bankruptcy Act. Upon application of the receiver, Curtis B. Danning, the referee found that NCR’s financing statement failed to comply with California law. He declared that NCR had an unperfected security interest and that its lien was subordinate to that of the receiver. The United States District Court for the Central District of California confirmed the referee’s order. NCR appeals.

To perfect a security interest of the type involved, § 9401(1) (c) of the California Commercial Code requires that a financing statement be filed with the Secretary of State. The content of the statement is specified by § 9402(1), which states in relevant part as follows:

“A financing statement is sufficient if it is signed by the debtor and by the secured party, gives the name and mailing address of the secured party, the name and mailing address of the debtor and contains a statement indicating the types of collateral or describing the items of collateral. The financing statement shall also set forth: . . .if the debtor is doing business under a trade name or style, such trade name or style. A copy of the security agreement is sufficient as a financing statement if it contains the above information and is signed by both parties.”

The added requirement that the trade name be included in the financing statement modifies the Uniform Commercial Code and is unique to California. In In re Thomas, 466 F.2d 51 (9th Cir. 1972), we expressly declined to rule on the question of whether a financing statement in California must comply with this provision in order to be valid.

In the financing statements involved here, the correct name of the debtor, “Thrift Shoe Co., Inc.”, was given. However, the debtor’s correct trade name, “Hudson Discount Family Stores”, was not given. One financing statement incorrectly listed the trade name as “Thrift Shoe, Inc.”, and the other incorrectly stated the trade name as “Thrift Shoe, Inc. doing buisness as Hudson Shoes”. The district judge found that NCR had actual and constructive knowledge of the debtor’s trade name or style at the time the cash registers were sold.

NCR argues that its security interest is nevertheless valid because (1) inclusion of the debtor’s trade name in the financing statement is not mandatory, (2) inclusion of the debtor’s true name was enough to put a prudent prospective creditor on notice of NCR’s security interest, and (3) there is no evidence that any creditor was misled by failure to include the proper trade name. NCR also contends that even if its financing statement is insufficient, the receiver cannot challenge NCR’s security interest because there would be no benefit to general creditors. We reject NCR’s arguments.

The California statute requires that both the real name and the trade name of the debtor be given if a filed financing statement is to perfect a securty interest. The legislative intent in requiring the disclosure of the trade name of the debtor is obvious. Trade names are used extensively, and many businesses operate under several trade names. A potential creditor may know a debtor only by a trade name. The method of filing required by the statute would give notice whether the search be made under either the real name or the trade name of the debtor. The official form of the financing statement in California contains a special line for the trade name or style. Also, the financing statement is indexed under the trade name of the debtor as well as the true name. In view of the importance of the notice function of financing statements, it is inconceivable that the legislature intended that inclusion of the trade name be optional. General Electric Credit Corp. v. Aurora Mobil Homes, 37 Cal.App.3d 1016, 112 Cal.Rptr. 735 (1974); Borg-Warner Acceptance Corp. v. Bank of Marin, 36 Cal.App.3d 286, 111 Cal.Rptr. 361 (1973).

The word “shall” has traditionally been interpreted as a mandatory direction in a statute. United States v. Ma-chado, 306 F.Supp. 995, 997 (N.D.Cal. 1969). In § 9402(1) of the California Commercial Code “shall” was intended to be mandatory. Contrary to NCR’s suggestion, there is no inherent conflict in the statute if “shall”, as used in the second sentence of § 9402(1), is given a mandatory construction. Both the first and second sentences can harmoniously be construed as mandatory.

NCR’s financing statements do not substantially comply with the requirements of § 9402(1). They frustrate the very purpose of the statutory scheme because they fail to give the minimum information considered necessary by the California legislature to put a searcher on inquiry. A- creditor searching under the name “Hudson Discount Family Stores” — the name which the debtor used in its business — would not discover the asserted security interest of NCR.

The fact that there is no evidence that any creditor was actually misled is not determinative. The controlling fact is that an ideal hypothetical creditor would not have discovered NCR’s lien by examining the notice index under the debtor’s trade name. In re Thomas, supra.

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Louis WALKER, Appellant.
    No. 1244, Docket 72-1669.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 16, 1974.
    Decided Sept. 18, 1974.
    J. Truman Bidwell, Jr., Donovan, Leisure, Newton & Irvine, New York City, for appellant.
    Norman B. Arnoff, Special Atty., U. S. Dept, of Justice (Paul J. Curran, U. S. Atty., S.D.N.Y.; John D. Gordan III, Asst. U. S. Atty., Edward M. Shaw, Special Atty., U. S. Dept, of Justice, of counsel), for appellee.
    Before OAKES, Circuit Judge, FRANKEL and KELLEHER, District Judges.

       Of the Southern District of New York and the Central District of California, respectively, sitting by designation.

   PER CURIAM.

Appellant’s sole claim on appeal is that Judge Weinfeld improperly excluded a partial transcript of tape recordings made by Walker of largely self-serving telephone conversations with certain Government agents shortly before trial. Our examination of these transcripts indicates that their probative value at trial was minimal. We agree with Judge Weinfeld’s memorandum opinion filed May 10, 1972, denying appellant’s motion for a new trial, to the effect that the transcripts contained “no matter inconsistent with- the substance of [the agent’s] testimony.” Even if the transcripts did contain statements bearing upon the appellant’s state of mind, as appellant contends, the exclusion of this evidence was certainly no abuse of Judge Weinfeld’s discretion. The transcript does not purport to be complete; appellant had failed in the ample time afforded to him by Judge Weinfeld to make the tapes themselves available to the Government; the appellant offered the transcripts only after both sides had rested. Accordingly, Judge Weinfeld’s exclusionary ruling was clearly within his discretion.

Judgment affirmed.


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ronald BOWMAN, Defendant-Appellant.
    No. 73-3199.
    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1974.

      John E. Fitzgibbon, Laredo, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
   WISDOM, Circuit Judge:

In this case involving a pre-Almeida-Sanchez border search, the district court, sitting without a jury, convicted Ronald Bowman on four counts charging violations of 21 U.S.C. §§ 176a and 174. Count 1 charged him with smuggling fifty pounds of marihuana into the United States. Count 3 levied the same charge with respect to one ounce of heroin. Count 2 charged knowing transportation and concealment of the marihuana while knowing it to have been illegally imported. Count 4 made the same charge with respect to the heroin. On June 9, 1969, Bowman was sentenced to serve four concurrent ten-year sentences. He appeals his conviction as to all counts, alleging that he was convicted on the basis of evidence seized in an unlawful search and that the evidence was insufficient to support his conviction. We affirm.

At trial, Bowman declined to testify and presented no witnesses in his own behalf. All of the evidence introduced consisted of the testimony of government agents and experts.

At about 8:45 in the evening on June 26, 1969, Bowman and Everett E. Mason crossed the International Bridge at Laredo, Texas, returning to the United States, in a rented automobile driven by Mason. At the Customs Inspection Station they declared three bottles of liquor and were referred to the Secondary Inspection Station for payment of the duty. There a search of the vehicle was made. The record does not indicate how thorough that search was, but all that was turned up was a traveling kit and two new leather suitcases, both empty, which had been acquired in Mexico. There was no other luggage and, apparently, no clothing. While the search was being conducted, the supervisory customs inspector learned in conversation with Bowman and Mason that they had flown from St. Louis, where both resided, to San Antonio, had rented a car there, and had driven it through Laredo into Nuevo Laredo, Mexico. They had remained in Mexico for one or perhaps two hours, and were then on their way back to St. Louis to report back for work.

The inspector found these circumstances suspicious. After Bowman and Mason had been allowed to proceed, he telephoned the Assistant Agent in Charge, Pardaen, at his home. He described Bowman and Mason, and their automobile, and related the conversation' he had had with them and the, information he had obtained. Pardaen and another agent, Jordan, promptly drove to a point on the northbound highway leading to San Antonio, three miles north of the city limits of Laredo, in order to intercept the vehicle. There was a Border Patrol checkpoint about eight miles north of the city on the same road. Pardaen alerted this checkpoint and other Customs units in the area to be on the lookout for the described vehicle. At about 11:00 that same evening, Agents Pardaen and Jordan spotted and stopped the defendant’s vehicle. They identified themselves as customs agents and stated that they intended to make a customs search of the car. When the trunk was opened,' the agents detected the odor of marihuana and, handling the suitcases, noticed that they seemed heavy. Asked what was in the suitcases, Bowman answered, “Clothing.” Both suitcases were locked and Pardaen asked for the keys. Bowman responded, “What keys?” Thereupon, the suspects were told to empty the contents of their pockets onto the hood of agent Pardaen’s car. Mason produced, among other things, the keys to the suitcases, and Bowman produced a billfold and two or three small notebooks. One of the notebooks, on later inspection, was found to contain an entry reading, “one ounce heroin, one ounce pure dope, six hundred dollars.” The suitcases were opened, and inside them were found pillow slips, marked “Holiday Inn”, containing about fifty pounds of marihuana. At this point the defendants were read their Miranda warnings and placed under arrest. They were also advised that they would be taken back to the Customs Inspection Station at the International Bridge for processing and a further search in better lighting conditions.

As the agents were preparing to leave for the Customs Station, Bowman asked, two or three times, if he could have his jacket. There were two jackets in the car, one of brown vinyl, the other a gray, knit sweat jacket. He was told that his belongings would be returned to him after the search had been completed at the bridge. The search at the bridge was conducted out of the presence of the two defendants. In the toilet kit, agents found a Hansen scale. In a pocket of the gray sweat jacket they found roughly one ounce of heroin fitted into a finger of a glove. Later, when Bowman and Mason were allowed to reclaim their possessions, Mason claimed the shaving kit, and its contents, except for the scale, and the brown vinyl jacket. Neither claimed the gray sweat jacket.

I.

The validity of the challenged search hinges on whether it may be properly characterized as a “border search”. In addressing that issue, we have no occasion to pass on the applicability of the Supreme Court’s decision in Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, to the facts of the present case. The search at issue was conducted before Almeida-Sanchez was decided, and in United States v. Miller, 5 Cir. 1974, 492 F.2d 37, affirmed en banc, 499 F.2d 1247, this Court held that Almeida-Sanchez must be given prospective effect only.

Customs agents have broad authority to stop and search for contraband. 19 U.S.C. §§ 482, 1581, and 1582. But their searches must, of course, meet Fourth Amendment requirements of reasonableness. United States v. Diemler, 5 Cir. 1974, 498 F.2d 1070; United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129, cert. denied, 1973, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041; Morales v. United States, 5 Cir. 1967, 378 F.2d 187; Thomas v. United States, 5 Cir. 1967, 372 F.2d 252. To characterize a search by a customs agent as a “border search” is, in essence, “a short-hand method of stating that a search is, under the circumstances, a ‘reasonable’ stretch of the usual Fourth Amendment standard of ‘probable cause’. . . .” United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129, cert. denied, 1973, 413 U. S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041. What is reasonable will, of course, depend on the circumstances of the case. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. At the border itself, the search of an incoming person or vehicle may be initiated on little or no suspicion. “The agent’s statutory authority to search is virtually unfettered except perhaps as to due process concerning the manner, not the cause, of the search.” United States v. Storm, 5 Cir. 1973, 480 F.2d 701, 704. See also Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. It is simply not possible, however, to police the borders effectively if enforcement is confined to the border itself and its immediate vicinity. The Fourth Amendment accordingly allows reasonable latitude to customs officials to carry out searches for contraband somewhat within the nation’s borders, in the general border area. There agents may stop and search persons and vehicles without a warrant and on less than probable cause but without the license they enjoy at the border itself. See United States v. Storm, 5 Cir. 1973, 480 F.2d 701; Thomas v. United States, 5 Cir. 1967, 372 F.2d 252.

Mere proximity to the border does not alone justify such a search. United States v. Storm, 5 Cir. 1973, 480 F.2d 705. To hold that a search may be reasonably justified as an “extended border search” requires a finding that the agent who conducted the search had reasonable cause at the time of the search to suspect a violation of the customs laws. See 19 U.S.C. § 482; Morales v. United States, 5 Cir. 1967, 378 F.2d 187; Mansfield v. United States, 5 Cir. 1962, 308 F.2d 221. And, at the time of the search, the suspect must have had some reasonably direct connection with the border, considering such factors as the cause for the initiation of the search, the distance from the border and the original point of entry, and the time elapsed since entry. See United States v. Bursey, 5 Cir. 1974, 491 F.2d 531; United States v. Steinkoenig, 5 Cir. 1973, 487 F.2d 225; United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129, cert. denied, 1973, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041; United States v. Warner, 5 Cir. 1971, 441 F.2d 821; cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58.

The appellant argues that in his case, the agents had no cause for suspicion, that his trip to Mexico was unexceptional and indistinguishable from that of any tourist. We cannot agree. The suspects had made a long and expensive trip from St. Louis, Missouri to Nuevo Laredo, a Mexican border town described by the trial judge as the “Mecca of the narcotic user.” They carried no luggage to speak of, stayed only a couple of hours, and returned to the United States carrying only two empty suitcases, stating their intent to return directly to St. Louis. We agree with the trial court that, to an experienced inspector, these circumstances might arouse a reasonable suspicion that a narcotics delivery had been arranged in Mexico to take place at or near the border.

The appellant also contends that at the time of the search he had no cognizable connection with the border. Specifically, he argues that once he had been searched at the border checkpoint and then passed through into the United States, his connection with the border had been severed, and any subsequent search could not be justified as a border search. On the facts of this case, we must disagree. It is settled that passage through an initial checkpoint does not in itself suffice to sever the entrant’s connection with the border. See, for example, United States v. Reagor, 5 Cir. 1971, 441 F.2d 252; United States v. Hill, 5 Cir. 1970, 430 F.2d 129; Morales v. United States, 5 Cir. 1967, 378 F.2d 187.

Certainly there comes a point after a border crossing where an individual’s relationship with the border is so attenuated that a search may not be justified as a “border search”. Such a case was United States v. Bursey, 5 Cir. 1974, 491 F.2d 531. There the suspects crossed the border. On the following day, on the basis of an informant’s tip that the suspects were seeking narcotics, a fruitless search was conducted by customs officials. Later, a second informant relayed a tip that the suspects would attempt to purchase narcotics in Rio Grande City, Texas. Surveillance, with some interruptions, was maintained on the suspect vehicles. Four days after the suspects had entered the United States and eighty miles north of the border, the suspects were stopped and searched. Thus, at the time of the second search, long after the border had been crossed and at some distance from it, there was no longer any basis for suspecting a Mexican connection or contact. The second informant’s tip had indicated that the suspects were seeking narcotics in Texas, not Mexico. The standard of reasonableness is of limited elasticity, and in Bursey customs agents had stretched it too far.

The appellant’s case, however, presents circumstances of a different order. The suspicion of a Mexican transaction or contact was still fresh at the time of the search. It had been attenuated by neither time nor distance. The search was within a reasonable time of the appellant’s entry and within a reasonable distance from the crossing point. Nor had any new information intervened to vitiate the initial suspicion. In these circumstances, we find the search was reasonable.

II.

The appellant contends that the court, in weighing the evidence, was not entitled to rely on the statutory presumptions created by 21 U.S.C. §§ 174 and 176a. He further maintains that, without the aid of these presumptions, there is insufficient evidence, as to all four counts, to support his conviction. We turn first to the conviction under Count 4. Because of the conclusion we reach as to the conviction under this count, it is unnecessary to reach the other issues raised on this appeal.

The elements of the offense charged under Count 4 are (1) knowing concealment and transportation of heroin that (2) was illegally imported (3) while knowing it to have been illegally imported. The statutory presumption of § 174 provides that proof of possession may serve as an adequate evidentiary basis for conviction. 21 U.S.C. § 174. In essence, the fact-finder is permitted to infer from proof of possession that the heroin was illegally imported and that the defendant knew that it had been illegally imported. This presumption has been consistently upheld as it applies to heroin. See Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610; Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; Walker v. United States, 5 Cir. 1960, 285 F.2d 52. Accordingly, the viability of the conviction under Count 4 turns on whether the defendant could properly be found to have had “possession” of the heroin seized.

“Possession”, within the meaning of § 174, may be either actual or constructive, exclusive or joint, and may be proved by circumstantial as well as direct evidence. See Smith v. United States, 5 Cir. 1967, 385 F.2d 34; United States v. Mendoza, 5 Cir. 1970, 433 F.2d 891, cert. denied, 401 U.S. 943, 91 S.Ct. 953, 28 L.Ed.2d 225. There is ample evidence in the record to support a finding of at least joint and constructive possession.

The defendant had, two or three times, asked for “his jacket” before the two jackets had been searched. When, after they had been searched, he was given the opportunity to claim his possessions, he claimed no jacket. His companion claimed the “clean” jacket. The jacket containing the heroin went unclaimed. At the same time, the defend-' ant had in his possession a notebook with an inscription indicating the purchase of one ounce of heroin, the same quantity found in the unclaimed jacket. From these circumstances the court could reasonably infer that the defendant at least shared “dominion and control” over the heroin. Accordingly, the conviction as to Count 4 is affirmed.

We do not reach the other points raised on this appeal. Because we have affirmed the appellant’s conviction under one count, and because the sentences imposed under all counts were concurrent ten year sentences, consideration of other points raised on appeal is unnecessary under the “concurrent sentence” doctrine. Kiyoshi Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; United States v. Johnson, 5 Cir. 1972, 469 F.2d 973; United States v. Easterly, 5 Cir. 1971, 444 F.2d 1236; United States v. Laite, 5 Cir. 1969, 418 F.2d 576.

The judgment of conviction is affirmed.

      . Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596.

      . The relevant portions of § 2(h) of the Narcotic Drugs Import and Export Act, 70 Stat. 570, formerly 21 U.S.C. § 176a, repealed by Act of Oct. 27, 1970, Pub.L.No. 91-513, § 1101(a)(2), (9), 84 Stat. 1291, provides:
      “Notwithstanding any other provision of law, whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitiates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned.
      “Whenever on trial for a violation of this subsection, the defendant is shown to- have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.”

      . The relevant portions of § 2 of the Act of February 9, 1909, 35 Stat. 614, formerly 21 U.S.O. § 174, repealed by Act of Oct. 27, 1970, Pub.L.No. 91-513, § 1101(a)(2), (4), 84 Stat. 1291, provides :
      “Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States shall be imprisoned.
      “Whenever on trial for a violation of this subsection the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”
      Heroin, a derivative of opium, is within the meaning of the term “narcotic drug” as used in 21 U.S.C. % 174. See 21 U.S.C. § 171, which refers to § 3228(g) of the Internal Revenue Code of 1939, now 26 U.S.C. § 4731(a).

      . Mason was charged, with Bowman, on all four counts. On the motion of the United States Attorney, however, the charges against Mason were dismissed, after he pleaded guilty to a superseding indictment charging only a marihuana violation. He is not a party to this appeal. He did not testify at Bowman’s trial.

      . We express no opinion here as to the validity of the inference under 21 U.S.C. § 174 that the possessor of heroin is himself its smuggler, nor did the Court in Turner reach that issue. Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 010. The Turner Court considered only the inference under § 174 that the possessor knew the heroin to have been illegally imported.


author: GODBOLD, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DEATON, INC., Respondent.
    No. 73-3084.
    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1974.
    As Corrected On Rehearing and Rehearing En Banc Denied Jan. 15,1975.

      Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Director, Region 10, N. L. R. B., Atlanta, Ga., William R. Stewart, Washington, D. C., for petitioner.
    Mark Taliaferro, Sr., Mark Taliafer-ro, Jr., C. V. Stelzenmuller, Birmingham, Ala., for respondent.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   GODBOLD, Circuit Judge:

This National Labor Relations Board refusal to bargain case requires us to examine the validity of a 1971 representation proceeding order designating a bargaining unit of employees of Deaton, Inc., an irregular route interstate common carrier. The heart of the case is the question of whether drivers of trucks owned by others and leased to Deaton were properly included in the unit. We conclude that in the 1971 order the Board did not employ improper legal standards and its findings are supported by substantial evidence. Thus the 1973 order directing Deaton to bargain must be enforced.

Independent contractors are excluded from the coverage of the National Labor Relations Act, 29 U.S.C. § 152(3), and a bargaining unit lumping them with “employees” is inappropriate. In the- representation proceeding the Board designated as an appropriate unit of employees of Deaton:

All over-the-road truckdrivers, city pickup and delivery drivers, hostelers, and maintenance employees at the Employer’s Birmingham, Alabama, plant, excluding all office clerical employees, salesmen, guards, and supervisors as defined in the Act.

The Board opinion, 187 N.L.R.B. No. 102, 76 L.R.R.M. 1129, summarized in 1971 CCH NLRB fl 22,635 (Jan. 11, 1971), shows that “over-the-road truck-drivers” included these subgroups:

Drivers of Deaton-owned trucks, conceded to be “employees.”
Single-truck owner-drivers. A single-truck owner-driver owns only one truck, which he leases to Deaton and drives himself.
Nonowner drivers. A nonowner driver drives a truck leased to Deaton by a third person.

Deaton urges that the unit is inappropriate because single-truck owner-drivers are independent contractors. Non-owner drivers are conceded to be employees, but Deaton claims that multiple-owner drivers are independent contractors, and that they [i. e., the multiple-owner drivers] rather than Deaton are the employers of the nonowner drivers.

The Act does not define independent contractor. The Board and the courts flesh out the term by application of common law agency principles. NLRB v. United Ins. Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). The determination of a worker’s status involves no special expertise peculiar to the Board. But when made by the Board in the first instance under correct principles and following briefs, oral argument, and a hearing with witnesses, the determination should not be set aside merely because the court of appeals would, as an original matter, decide the case the other way. The court must canvass the entire record in the search for substantial evidence and must not displace the Board’s choice between two fairly conflicting views. Id. at 260, 88 S.Ct. 988, 19 L.Ed.2d at 1088, citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

While asserting that agency principles are applicable, the Supreme Court has made clear that there is no shorthand formula or magic phrase that yields easy answers in close cases. NLRB v. United Ins. Co., supra, 390 U. S. at 258, 88 S.Ct. 988, 19 L.Ed.2d at 1087. Rather, all incidents of the relationship between the worker and the company must be assessed and weighed. The resultant decision is “not a purely factual finding . . . but involve [s] the application of law to facts. . . .” Id. at 260, 88 S.Ct. at 991, 19 L.Ed.2d at 1088.

Our own employee-independent contractor eases, Board decisions and cases from other circuits have refined the agency law inquiry. The “control test,” which we will discuss more fully infra, has emerged as an important desideratum. It is not, however, the sole analytical tool. The Board opinion in the present case shows that other factors were weighed. For example, the company’s and drivers’ own declarations about their relationship, voiced in the governing uniform leases, were considered, as was the fact that the company extends employee-type life and health insurance and pension benefits only to drivers of company-owned trucks, not to single-truck owner-drivers or nonowner drivers.

The dissenting member of the Board panel, Chairman Miller, argued for giving more weight to the entrepreneurial character of the owner-drivers’ operations. He cited United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947), a Social Security tax case in which the Supreme Court held that certain moving-van drivers had so much responsibility for investment and management that they were independent contractors.

The Board majority considered the extent to which multiple-owner drivers and single-truck owner-drivers are entrepreneurs, investing a substantial amount of cash, bearing the risk of loss, and enjoying the hope of profit. Silk itself demonstrated that entrepreneurial indicia are not necessarily to be accorded paramountcy and that the “total situation” must be evaluated. 331 U.S. at 719, 67 S.Ct. 1463, 91 L.Ed. at 1771. Cf. Joint Council of Teamsters No. 42 v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322 (1971) (per curiam) (entrepreneurial indicia are significant primarily because they imply control).

Nearly every case examining the employee-independent contractor distinction involves an alignment of investment and management responsibility departing in some degree from the classic employer-salaried employee model. The various factors bearing on the “total situation” frequently point in conflicting directions. We cannot say that in the present case the board majority gave undue weight to the control test or shortchanged entrepreneurial indicia.

The control test is traditionally stated in the following terms:

[The test focuses on] the nature and the amount of control reserved by the person for whom the work is done . [T]he employer-employee relationship exists when the person for whom the work is done has the right to control and direct the work, not only as to the result accomplished by the work, but also as to the details and means by which that result is accomplished . . . [I]t is the right and not the exercise of control which is the determining element.

NLRB v. Phoenix Mutual Life Ins. Co., 167 F.2d 983, 986 (CA7), cert. denied, 335 U.S. 845, 69 S.Ct. 68, 93 L.Ed. 395 (1948). The Board and the courts have tended to emphasize particular phrases from the test. For example, numerous decisions have stressed that a company’s right to control, even if not exercised, makes workers employees. See, e. g., Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697 (CA5, 1964), cert. denied sub nom. Teamsters Local 612 v. NLRB, 381 U.S. 903, 85 S.Ct. 1448, 14 L.Ed.2d 285 (1965) [Deaton /]. Also, the distinction between control over manner and means and control over end results has been made to bear considerable weight. Thus in NLRB v. Steinberg, 182 F.2d 850 (CA5, 1958), animal trappers who leased tracts from the company, worked them during a brief season, and sold pelts to the company, were held to be independent contractors because there was no substantial evidence that the company had significant control over the manner and means of accomplishing the production of pelts.

In interstate truck line cases an additional wrinkle on the control test has evolved. The Interstate Commerce Commission and the Department of Transportation closely regulate truck lines. The leading purposes of the regulations are to promote safe operation of trucks and to ensure continuous financial responsibility so that truck-related losses will not go uncompensated. The regulations, designed to protect both the highway-travelling public and the segment of the public directly using trucking services, have the effect of requiring the holder of a certificate of public convenience and necessity to possess and exercise considerable control over all trucks operated under the certificate, without regard to whether the holder owns the trucks. Control over trucks involves control over drivers. We agree with the Board that it is unnecessary to decide whether ICC-mandated controls alone would be sufficient to establish the employee status of nonowner drivers of leased trucks. In the present case the Board took into account the substantial nexus of control required by federal regulations and also found that the facts established the existence of “additional controls” voluntarily reserved by Deaton. Thus the Board found that the total controls were sufficient to make out employee status. We follow the same approach. See NLRB v. Pony Trucking, Inc., 486 F.2d 1039 (CA6, 1973).

At the 1970 hearing before the Hearing Examiner, Deaton pointed out the changes in the relationship between the drivers and the company that had intervened since 1963, when in Deaton I we agreed with the Board that single-truck owner-drivers and nonowner drivers driving Deaton-leased trucks were employees. The changes, many of which were effected by redrafting the uniform lease, included the following: company-paid vacations and hospital, life and workman’s compensation insurance were eliminated for all except drivers of Dea-ton-owned trucks; the rate of pay for drivers of leased trucks was no longer fixed by the lease, and different multiple-owner drivers offered different pay rates and fringes; orientation and safety meetings were eliminated and company safety and driver supervision patrol operations curtailed; drivers of leased trucks were no longer reprimanded by Deaton, nor were they required to sign in personally before being dispatched or to follow company-prescribed routes; they were permitted to take extended leaves, to take equipment home, and to purchase fuel and repair and maintenance services and to sojourn overnight wherever they pleased; multiple-owner operators were allowed to lease trucks (other than those already under lease to Deaton) to other carriers, and to swap drivers from Deaton to other carriers; the prohibition against lease drivers’ swapping loads so as to get loads consigned in the direction of their homes was lifted; the practice of maintaining a pool of company-approved nonowner drivers upon which multiple-owner drivers were required to draw was eliminated.

The 1971 Board decision took account of the changes but found that considerable control remained vested in Deaton.

The Employer remains obligated to comply with ICC and Department of Transportation regulations relative to the operation of all vehicles used in its operations on the Nation’s highways and eoncededly, exercises the control over operation of leased equipment necessary to assure compliance with said requirements. Furthermore, the Employer, being answerable to its customers for any unsatisfactory performance by a lease operator . or his driver, will, in turn, take corrective steps with the lease owner to avoid any repetition of such incidents.
More specifically, the Employer’s control over the means by which the lease owners perform their tasks is evidenced by its initial determination of qualification of any driver hired by a lease owner, by its disqualification of any driver who fails to perform satisfactorily, by its requiring leased equipment to be inspected every 20 days, by its exclusive use of all leased equipment for the term of the lease, and by its performance of all dispatching services for both company and lease drivers alike. Also, the lease drivers are required to submit a daily driver’s log and trip report and manifest to the Company; each truck is required to exhibit the Employer’s name and identification number; and Deaton maintains a personnel file on all drivers with respect to accidents and qualifications. Furthermore, the Employer, through its authority to terminate the lease at will 30 days after the commencement thereof, retains potential authority to control virtually every aspect of the means by which the lease owners conduct their operations in its behalf.

187 N.L.R.B. No. 102 at-, 76 L.R.R.M. at-.

Despite Deaton’s urging to the contrary, we cannot ignore or discount the items that are requirements imposed by federal regulations. As discussed above, we assess the total controls, including both ICC-mandated controls and additional controls. The Board’s findings that Deaton possessed the federally-mandated controls are supported by substantial evidence, and we would in any event be bound to assume that the company was in compliance with regulations. The existence of additional controls also is shown by substantial evidence. For example, Deaton “checks out” all drivers before permitting them to drive trucks leased from multiple-owner drivers. 49 C.F.R. §§ 391.21 and 391.23 require Deaton to make certain inquiries, but the record shows that Deaton went farther than was required. D. B. Lockridge, Deaton’s president, gave the following testimony before the Hearing Examiner:

Q. [By the union attorney] How do you determine if a driver of a lease owner or a lease owner meets the qualifications of Deaton ?
A. Well, I thought I had explained that. We check him out. We check his references where he worked, check his police record, his driving record. And this we determine .
Q. How is this filed? How was this filed with the company? How does the company have this ?
A. The lease operator — the lease operator presents a man to the personnel department and says, “I want this man checked out to drive my truck.” We take the man’s name, the record of his previous employment, and we check him out. And then we tell the lease operator, “He checks out all right” or “he doesn’t cheek out all right.”
If he doesn’t check out all right, we tell him he has a record of accidents that are a mile long, he’s had five chargeable accidents that directly contributed to — by negligence, recklessness, and we don’t think you want him driving your trucks, and we know we don’t want him driving a truck for us and subjecting us to lawsuits, and claims and penalties.

Thus it appears that Deaton had power over the hiring decisions of its multiple-owner drivers. Nor was the scope of this power limited to forbidding the hiring of persons legally disqualified from driving commercial motor vehicles under federal regulations, as Lockridge’s further testimony shows:

HEARING OFFICER: Before an owner driver or a multiple owner driver has someone drive their vehicle, must that person file an application with Deaton?
WITNESS: Not necessarily an application. We want to know some history on it so that we can check him out and determine what his past record is.
HEARING OFFICER: And once again, the purpose of that is for liability insurance?
WITNESS: The purpose of that is to determine whether or not his record is such that you wouldn’t — he wouldn’t be — he would be a good risk, whether or not his record is such that a federal regulatory agency; the Department of Transportation, to be specific, would not be critical of our operators.

Deaton’s practice of assessing whether a driver was a “good risk” involved a subjective, employer-like inquiry different in quality from merely making sure he was not barred by law from commercial driving.

Deaton’s power over multiple-owner drivers’ personnel decisions continued beyond the initial determination of qualification stage. There is evidence that for lateness in making deliveries, for dishonest handling of money collected from customers, or for “just loafing,” a nonowner driver can, in effect, be fired by Deaton. After a lease has been in force for 30 days (the minimum lease period allowed by regulations, see 49 C. F.R. § 1057.4(a)(3)), either party may terminate it at will upon written notice. As the Board noted in its opinion, this gives the company a handle by which to control nonowner-drivers. By threatening a multiple-owner driver with cancellation of his lease, Deaton can make him fire a driver whom it considers undesirable.

Q. [By the union’s attorney] If you tell a lease owner to get another driver and he doesn’t do it, do you disqualify that driver ?
A. Do I disqualify the driver ?
Q. Right. You tell a lease owner to get another driver and he says, “No, I don't want to do that. I want to keep this driver.”
A. Well, we tell him that he’s perfectly free to keep him, but not driving a truck that’s leased to us.
[Deaton’s attorney] That’s what we call him disqualifying from driving in the fleet.

There was some evidence that the company exercised its power only for dishonesty or violations of state or federal regulations that would in any event make it illegal to keep the offending driver on. There was also testimony that other, more subjectively defined transgressions triggered exercise of the power. Even if dishonesty were the only behavior that normally led to “disqualification” (i. e., firing by Deaton), the fact remains that the company had the power to disqualify nonowner drivers if it became dissatisfied with their performance. Under the control test, the right of control, even if unexercised, is the crucial element.

Moreover, it appears that Deaton possessed and exercised less drastic means of asserting control over certain aspects of non-owner drivers’ conduct.

HEARING OFFICER: Have you ever had any of your customers complain about any of the drivers of vehicles bearing the Deaton insignia?
WITNESS [Lockridge]: Oh, yes. Yes, we’ve had customers to tell us, “Don’t send that blankety-blank so and so back in here anymore. If you do, we’re not going to load it, or it you do, we’re not going to unload it.” And this is true with company drivers and this is true with lease operator’s drivers.
HEARING OFFICER: What you do when this happens ?
WITNESS: Well, we tell the lease operators that he cannot go back to Plant X because they refuse to load it, refuse to permit him on their premises. And if he wants to have somebody else load at Plant X when that man’s time comes to load, fine. But we will not permit that man to go back to Plant X, or we’ll load the trailer for him.
HEARING OFFICER: What about the driver for someone who leases a vehicle to you?
[Deaton’s attorney]: That’s what he was talking about.
HEARING OFFICER: Multiple owner driver. You go to that multiple owner and say, “Don’t send Driver X to Customer Y” ?
WITNESS: Well, we tell him that we can’t send him back there for loading or unloading because of the complaint registered by the customer, and it’s up to him what he’s going to do from there on. If he wants to retain the man as a driver on his truck and pay us to load for him, we’ll do so. If he wants to load for him himself, he may do so, but we will not send the driver back to that place of business and we would not permit the driver to go back to that place of business after being instructed by the shipper not to send that particular individual back to his premises.

In sum, substantial evidence drawn from the record as a whole supports the Board’s conclusion that single-truck owner-drivers and nonowner-drivers, being “employees,” were properly included in the bargaining unit. The Board’s finding represents, at the least, a “fairly conflicting view” which we are not empowered to displace.

Deaton asks us to remand the ease for rehearing by the entire Board on the ground that the 1971 decision is out of harmony with subsequent Board cases. Even if subsequent cases reaching the opposite result are truly indistinguishable, it is not our province to insure an abstract and academic consistency in Board decisions. The personnel and philosophies of administrative bodies are subject to constant change. Especially in an area as fraught with technical distinctions and as dependent on factfindings as the employee-independent contractor dichotomy, we should decline to interfere with a Board decision reached through orderly processes under proper legal standards and supported by substantial evidence. To intervene at this point would work against the essential policy of the Act, encouraging parties to delay compliance with Board orders for as long as possible in the hope of finding support in later Board decisions and of securing a locus poenitentiae through the intervention of a court of appeals.

The 1973 order does not violate § 8(d) of the Act, 29 U.S.C. § 158(d), the prohibition against requiring a party to make a bargaining concession. The company’s theory is that the order compels it to yield the concession of exercising control over matters, wages of nonowner driver,^ for instance, that it presently does not control. It contended that the Board should let negotiations be confined to the things upon which the Board focused in finding company control and thus employee status, for example, multiple-owner drivers’ hiring and firing decisions. This contention misses the point. If the total controls were sufficient to support a finding of employee status — and we agree with the Board that they were — then the workers must be regarded as employees for all purposes. We need not spéculate about the mechanics of the bargaining process or the form that an agreement ultimately might take. Those matters depend upon what each party offers and what each is able to secure in the way of concessions from the other.

The order of the Board is enforced.

      . As usual, the issue of the validity of the representation proceeding order comes before us in the context of a subsequent unfair labor practice case in which, in 1973, the Board held Deaton guilty of refusal to bargain with Service Employees Local 623, AFL-GIO, the duly elected and certified representative of the unit. See 203 N.L.R.B. No. 172, 83 L.R.R.M. 1294, summarized in 1973 COH NLRB 1J 25,421 (June 1, 1973).

      . The third person owns two or more trucks. Often lie drives one himself, while the other (s) are driven by nonowner drivers. The Board decision referred to such third persons in the aggregate as “multiple-owner drivers,” and excluded them from the unit upon the ground that they are supervisors.
      The drivers of Deaton-owned trucks number 35 to 50. Around 350 trucks are leased to Deaton. The record does not show how many of these are driven by single-truck owner-drivers and how many by nonowner drivers or multiple-owner drivers.

      . The status of single-truck owner-drivers is stated as a separate issue, but at all stages of the proceedings the parties and the Board have not differentiated it from the issue of nonowner drivers’ status. Thus everyone has assumed that if nonowner drivers are employees, single-truck owner-drivers perforce are employees too. That assumption is justified. The Board opinion concluded that the nonowner drivers were sufficiently under Deaton’s control to make them Dea-ton’s employees under common law agency principles. Undergirding the Board’s conclusion was the finding that Deaton, through its power to unilaterally cancel multiple-owner drivers’ leases, could force them to act as conduits for company control over nonowner-drivers. To the extent Deaton had indirect control over nonowner drivers, it had direct control over single-truck owner-drivers, who were signatories of the uniform lease that multiple-owner drivers signed.

      . E. g., Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697 (OA 5, 1964), cert. denied sub nom. Teamsters Local 612 v. NLRB, 381 U. S. 903, 85 S.Ct. 1448, 14 L.Ed.2d 285 (1965); NLRB v. Lindsay Newspapers, Inc., 315 F.2d 709 (CA 5, 1963); NLRB v. Steinberg, 182 F.2d 850 (CA 5, 1958).

      . E. g., Indiana Refrigerator Lines, Inc., 157 N.L.R.B. No. 29, - L.R.R.M. -, summarized in 1966 CCH NLRB H 20,248 (Miar. 9, 1966) (before the full Board).

      . E. g., NLRB v. Nu-car Carriers, Inc., 189 F.2d 756 (CA 3, 1951); NLRB v. Cement Transport, Inc., 490 F.2d 1024 (CA 6, 1974); Joint Council of Teamsters No. 42 v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322 (1971); Radio City Music Hall Corp. v. United States, 135 F.2d 715 (CA 2, 1943) (tax case; opinion by Learned Hand); NLRB v. Jewell Smokeless Coal Corp., 435 F.2d 1270 (CA 4,1970).

      . Cf., e. g., News-Journal Co. v. NLRB, 447 F.2d 65 (CA 3, 1971), in which the Third Circuit frowned on the Board’s practice of expressing its conclusion solely in terms of the control test, but held that the record showed that the Board had in fact given due consideration to other factors.

      . ICC-mandated control over trucks not owned by the carrier was intended by Congress, which authorized the Commission
      to prescribe, with respect to the use by motor carriers ... of motor vehicles not owned by them, in the furnishing of transportation of property— -k •!' í¡x ¡jt
      (2) such . . . regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles, including the requirements prescribed by or under the provisions of this chapter with respect to safety of operation and equipment and inspection thereof, which requirements may include but shall not be limited to promulgation of regulations requiring liability and cargo insurance covering all such equipment.
      49 U.S.C. § 304(e).

      . The Board listed as a control factor the performance by Deaton of dispatching services for drivers of leased trucks as well as drivers of Deaton-owned trucks. In finding substantial evidence of sufficient total controls over the manner and means of achieving the transportation of goods from one place to another, we place no reliance upon this factor.

      . Q. [Deaton’s attorney] Now, if a person violates safety regulations or fails to account for his money, or don’t take his load there and just loafs, and liad more th[a]n ample time to get there, do we at times disqualify that man from further driving in the Deaton fleet?
      A. [Lockridge] Ves, we do. If lie’s dishonest, he steals from the company. AYe tell the lease operator we will not permit them to drive a truck leased to us, that he has the choice of either furnishing another driver or cancelling the lease on the truck, whichever he chooses to do, or if lie has other trucks leased elsewhere lie may put them somewhere else.

      . The 1971 order was handed down by members Fanning, Jenkins,’and Brown, with Chairman Miller in dissent. Member Brown has since left the Board, and two new members, Penello and Kennedy have joined it.

      . Cf. Maxwell Co. v. NLRB, 414 F.2d 477 (CA 6, 1969), in which the Sixth Circuit noted that while the Board has consistently followed the control principle in deciding employee versus independent contractor questions, it has evolved new ways of evaluating the facts and thus has reached differing results.

      . After the election Deaton informally offered to bargain over all subjects that it controlled. IVe agree with the Board that this amounted to no more than a reassertion of the position that single-truck owner-drivers and nonowner drivers were not Deaton employees.

      . We do not share Deaton’s sense of the incongruity of making an employer bargain about matters over which in the past it has lacked the usual type of full control. We note that other truck lines with similar structures have been required by the Board and the courts to bargain with units including single-truck owner-drivers and nonowner drivers.


author: MOORE, Circuit Judge:

text:
    Maria Diaz FARO, Plaintiff-Appellant, v. NEW YORK UNIVERSITY, Defendant-Appellee.
    No. 1216, Docket 74-1041.
    United States Court of Appeals, Second Circuit.
    Argued June 26, 1974.
    Decided Aug. 23, 1974.

      Nancy E. Stanley, New York City (Bellamy Blank Goodman Kelly Ross & Stanley, New York City and Diane Seri-fin Blank, New York City, on the brief), for plaintiff-appellant.
    William C. Porth, New York City (Katherine B. Desai, New York City, of counsel), for defendant-appellee.
    Carol Lynn Green, Washington, D. C., for the United States Equal Employment Opportunity Commission as ami-cus curiae.
    Before MOORE and FEINBERG, Circuit Judges, and PALMIERI, District Judge.

       Of the Southern District of New York, sitting by designation.

   MOORE, Circuit Judge:

Plaintiff, Maria Diaz Faro, a doctor of philosophy, Ph.D. in anatomy, not a medical doctor (referred to herein as Dr. Faro), appeals from an order of the District Court denying her application for a preliminary injunction in an action brought under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., wherein she sought an injunction against defendant from allegedly changing her employment status in the New York University Medical Center (for brevity usually referred to as “NYU”), •pending action by governmental agencies with which she had filed complaints alleging discrimination against her because she is a woman.

After a three-day hearing, the court (Duffy, J.) denied the preliminary injunction, concluding that it was “thoroughly unconvinced that the defendant University was motivated by sex bias or discrimination in refusing to create a special position for plaintiff and to give that job to her.” and, since “the plaintiff has failed to show either irreparable harm or the likelihood of success on the merits,” that no injunction should issue.

To appraise the merits of Dr. Faro’s claim, the facts relating to her coming to NYU and her position and work there since that time should be reviewed.

Dr. Faro came to NYU in early 1965 from Puerto Rico as .one of some fourteen members of a research staff of the Laboratory of Perinatal Physiology, a group brought to NYU by Dr. William F. Windle and which was engaged in primate studies. She was given the status of a research scientist as an Instructor of Experimental Rehabilitation Medicine. Her compensation was from special funds. In 1968 her grade was changed to Assistant Professor and in September 1972 to Associate Professor.

The Department of Rehabilitation Medicine of NYU is frequently referred to as the Rusk Institute because of its founder and chairman, Dr. Howard A. Rusk. The grant under which Dr. Win-dle and his staff were conducting their research was not a grant in perpetuity. Dr. Windle advised his staff that his grant would terminate in February 1971 and that he was departing about that time. Apparently, all other members of the research group except two women, Dr. Faro and Dr. Barker, left. To aid Dr. Faro in continuing her research, NYU arranged to have her participate in teaching a course in Gross Anatomy in the Department of Cell Biology on a temporary basis in the Spring of 1971 and again from September 1971 to February 1972. In addition, Dr. Rusk was able to secure some funds from private foundations to support Dr. Faro’s research activities for a further limited period.

In the summer of 1971, Dr. Rusk wrote to eleven employees of his Department including Dr. Faro, terminating their appointments as of August 31, 1972, and offering new appointments without tenure possibilities but with continuation of current salary and fringe benefits. All except Dr. Faro accepted. Dr. Faro chose to regard this as a “demotion” and requested consideration for a tenured position which she was subsequently advised NYU’s financial and academic situation precluded. NYU’s financial condition (large deficits having been incurred) forced it to terminate Dr. Faro’s employment as of December 31, 1973. Dr. Faro sought other academic employment but without success. She decided to attempt to remedy this situation by filing alleged employment discrimination charges with the U. S. Equal Employment Opportunity Commission and the New York City Commission on Human Rights. Because of the anticipated delays before these Commissions, Dr. Faro brought this suit and moved for a preliminary injunction. Primarily her claim is, and of necessity must be, that the action taken by NYU in her case was of a discriminatory nature because she is a woman.

The district court did not dispose of the motion on the affidavits alone but granted a protracted hearing (three days) in which Dr. Faro and Drs. Sabatini (Chairman of the Cell Biology Department), Rusk (Director of the Institute of Rehabilitation Medicine and Chairman of the Department of Rehabilitation Medicine), Potter (Associate Dean of the Medical Schools) and Good-gold (Professor of Rehabilitation Medicine and Director of Research and Training in the Institute of Rehabilitation Medicine); all testified. The court’s conclusion that there was no discrimination against Dr. Faro is amply supported by the proof — in fact, it is the only conclusion which could be properly adduced therefrom. In argument, Dr. Faro points to the hiring of other medical professors who are male but the proof shows no professional comparison between these professors, their experience, skills and purposes for which they were hired, and Dr. Faro.

Dr. Faro also argues that the district court applied a too stringent standard of proof in denying the preliminary injunction; that the court was in error in stating that she must show a strong likelihood of ultimate success on the merits; that she has shown irreparable, injury; and that the issues here, legal and factual, are complex.

Dr. Faro, in effect, envisions herself as a modern Jeanne d’Arc fighting for the rights of embattled womanhood on an academic battlefield, facing a solid phalanx of men and male faculty prejudice. She would compare herself and her qualifications with all recent appointees to the NYU medical faculty and asserts that she is just as competent as they are. In particular, she selects three doctors for comparison. She states that she was offered $4,000 for the same job for which a Dr. Alves was paid $23,000. Of course, as the district court found and the record substantiates, it was not the same job. Analysis of the proof clearly shows that the experience possessed by such male professors as have been hired is not comparable to the limited teaching and research background of Dr. Faro.

By this suit, Dr. Faro seeks a teaching job in any department of the Medical School which keeps her in the tenure chain and provides her with a full-time salary. The fact that, for a person of Dr. Faro’s qualifications, there is no such job available apparently is inconsequential.

The faculty selection process has been described by Dr. Rusk as follows :

Recommendations come from the chairman of the department and then there is a promotions committee within the department made up of senior faculty members who discuss, approve or disapprove these recommendations. From there it goes to the medical center executive committee where it is reviewed by a special promotions committee and then it comes back for approval or disapproval by the subcommittee as a whole.

No one other than the department chairman makes such recommendations.

Of all fields, which the federal courts should hesitate to invade and take over, education and faculty appointments at a University level are probably the least suited for federal court supervision. Dr. Faro would remove any subjective judgments by her faculty colleagues in the decision-making process by having the courts examine “the university’s recruitment, compensation, promotion and termination and by analyzing the way these procedures are applied to the claimant personally” (Applt’s Br. p. 26). All this information she would obtain “through extensive discovery, either by the EEOC or the litigant herself” (Id.). This argument might well lend itself to a reductio ad absurduvn rebuttal.. Such a procedure, in effect, would require a faculty committee charged with recommending or withholding advancements or tenure appointments to subject itself to a court inquiry at the behest of unsuccessful and disgruntled candidates as to why the unsuccessful was not as well qualified as the successful. This decision would then be passed on by a Court of Appeals or even the Supreme Court. The process might be simplified by a legislative enactment that no faculty appointment or advancement could be made without the committee obtaining a declaratory judgment naming the successful candidate after notice to all contending candidates to present their credentials for court inspection and decision. This would give “due process” to all contenders, regardless of sex, to advance their “I’m just as good as you are” arguments. But such a procedure would require a discriminating analysis of the qualifications of each candidate for hiring or advancement, taking into consideration his or her educational experience, the specifications of the particular position open and, of great importance, the personality of the candidate.

In practically all walks of life, especially in business and the professions, someone must be charged with the ultimate responsibility of making a final decision — even as are the courts. The computer, highly developed though it be, is not yet qualified to digest the punch cards of an entire faculty and advise the waiting and expectant onlookers of its decision as to hiring or promotion. Even were it so capable, a new rule would have to be added to appellate rules entitled “Appeal from a Computer.”

As to “irreparable harm,” Dr. Faro is in no way different from hundreds of others who find that they have to make adjustments in life when the opening desired by them does not open. This situation is not confined to medical schools. Of a hypothetical twenty equally brilliant law school graduates in a law office, one is selected to become a partner. Extensive discovery would reveal that the other nineteen were almost equally well qualified. Fifty junior bank officers all aspire to become a vice-president — one is selected. And, of course, even judges are plagued by the' difficulty of decision in selecting law clerks out of the many equally well qualified.

Dr. Faro apparently is convinced “of the sex-bias in higher educational institutions” and that she “must fight the sexism in other institutions of higher learning.” A certain well-known Governor of New York frequently and wisely said. “Let’s look at the record.” So looking, we find that the district court did not confine itself to any one limited set of standards but rather considered all, likelihood of success, irreparable damage, “substantial and difficult” issues and balance of hardships. After considering the law and the facts it found that it was “forced to conclude that the defendant University had treated Dr. Faro fairly and in a manner that was above reproach”. The record supports this conclusion. The Court said, “The University’s Medical School is presently going through a period of difficult financial strain and officials have explained this to plaintiff [Dr. Faro], pointing out that the circumstances require the termination of her research.” After analyzing the facts, it is obvious that “The defendant has been far from heartless in its termination of Dr. Faro. Various officials of the University have attempted to aid her in her search for a position at another institution but to no avail.” (Opinion of Duffy, J.)

The reasons for the termination of Dr. Faro’s research project are clear but even clearer is the conclusion that no violation of any provision of Title VII was involved therein.

Order affirmed.

      . For a detailed account of the part Dr. Rusk played in the organization and development of rehabilitation procedures at NYU, see “A World to Care For: The Autobiography of Howard A. Rusk, M.D.” Random House, 1972.

      . Dr. Faro also taught a course in Medical Spanish.