author: O’SULLIVAN, Senior Circuit Judge.

text:
    The KROGER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLUMBERS, STEAMPITTERS, & PIPEFITTERS LOCAL NO. 155, Respondent.
    Nos. 72-1598 and 72-1737.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 11, 1973.
    Decided May 2, 1973.

      J. Mack Swigert, Taft, Stettinius & Hollister, Cincinnati, Ohio, for The Kroger Co. by Stanley R. Zirkin, N. L. R. B.
    Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., John J. A. Reynolds, Jr., Director, Region 26, N. L. R. B., Memphis, Tenn., for N. L. R. B.
    Tom Gentry, Little Rock, Ark., J. Mack Swigert, Taft, Stettinius & Hollister, Cincinnati, Ohio, for Plumbers, Steamfitters, and Pipefitters Local No. 155.
    Before WEICK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

This litigation began with a charge by the Kroger Company that Plumbers, Steamfitters & Pipefitters Local No. 155 was guilty of violating Section 8(b)(4)(i)(ii)(A) and (B) of the National Labor Relations Act (29 U.S.C. § 158(b)(4)). The misconduct charged arose from the Kroger Company occupying a store built by its landlord at a shopping center in North Little Rock, Arkansas. Such misconduct consisted of picketing the Kroger store and the distribution of handbills at entrances to the shopping center; it began on the day that Kroger opened its store on July 27, 1971.

The trial examiner, affirmed by the Board, held the picketing was a violation of Section 8(b)(4)(ii)(B) of the Act, but did not violate Section 8(b)(4)(i)(ii)(A) or Section 8(b)(4)(i)(B) of the Act, and that the distribution of the handbills was a protected activity under the proviso contained in Section 8(b)(4) of the Act — information picketing. We have consolidated the Board’s petition for summary enforcement of its finding of violation — our No. 72-1737— with Kroger’s petition for review of the Board’s finding that the distribution of handbills in combination with picketing was not a violation of the Act — our No. 72-1598. Local 155 filed no exceptions to the trial examiner’s findings, and has not appeared or filed a brief to this Court. It apparently took no part in the proceedings before the trial examiner, and made no effort to justify its alleged misconduct.

We grant enforcement of the Board’s order as to the Section 8(b)(4)(ii)(B) violation and remand the matter to the Board to grant the relief asked by Kroger’s Petition for Review. Such an order would require Local 155 to cease and desist from picketing and passing out handbills. The only contest between Kroger and Local 155 derived from Kroger’s failure to yield to the union’s request that it incorporate into any lease made by it a requirement that Kroger’s landlord use only building contractors whose employees were members of a building trades union. All of Kroger’s employees are members of an appropriate union and it hires only union men or contractors to do any necessary repair or other work at its stores.

These are the background facts. The construction at the involved shopping center was financed by Metropolitan Trust Company (Metro), the owner of the building site. Metro had engaged Rock Steel Building Company, Inc. as general contractor to erect the center. Part of the work was performed by West Rock, Inc., a wholly owned subsidiary of Rock Steel. Neither Rock Steel nor West Rock was unionized. Kroger’s involvement was that it had leased from Metro part of one of the buildings that was being constructed by Rock Steel and its subsidiary. Kroger was going to operate a retail food store and had no control over its construction since Rock Steel was under contract to Metro.

Sometime around January 11, 1971, the union commenced picketing at the job site with placards that read:

“Local Union No. 155, Plumbers and Steamfitters, for informational purposes is picketing West Rock, Incorporated, as it does not meet the standard of wages, hours and working conditions established by Local 155 in this area.”

West Rock filed an unfair labor practice charge against the Local, but it was later withdrawn.

During this same period, and in mid-January, 1971, the local union’s business manager, J. W. Woodson, contacted James Patterson, Kroger’s division construction engineer. Woodson asked if Patterson knew that a “non-union pipe-fitter [was] being employed” at the site. Patterson was unaware of this and advised Woodson that it was Kroger’s policy to employ only union help and that if there was any problem at the site he should talk with either Metro or Rock Steel. Woodson then indicated that Kroger should incorporate a clause in its leases whereby any buildings it was to lease could only be constructed by union labor. Patterson said that this was outside his field and that he did not think that Kroger would place such a limitation in its leases. Woodson then told Patterson:

“This is a very strong union neighborhood and I think it would be very detrimental to the Kroger Company if there were any picketing out there.”

Construction of the leased building was completed and Kroger opened its store for business on July 27, 1971. At about 8:00 A.M. on the opening day, the store manager observed two pickets, one stationed at each of the two entrances to the shopping center. There was a third individual who was placing handbills on the windshields of the cars in the parking lot. The placards of the pickets read:

“The building occupied by Kroger-Sterling Stores & others on this site were [sic] constructed by Contractors paying less than the established wage scale for plumbers and steamfitters in this area .... Plumbers and

Steamfitters Local Union No. 155.” The handbills contained the legend “Notice to the Public,” and went on to say:

“The building housing the Kroger, Sterling Stores, and others was constructed by some contractors who paid their employees less than the prevailing wage rates paid for similar work in the Little Rock area.
“Our organization has continuously sought to improve the wages and working conditions of employees in the Little Rock area. We are believers in ‘Wages not Welfare’. We believe that everyone who works is entitled to be paid a reasonable wage for his efforts.
“We further believe that employers who cut wages and attempt to reduce the earning power of the workers in our area are contributing directly to a situation which ultimately costs all of us tax monies.
“We believe these are facts that you should consider in making your decisions as to whether or not you would want to patronize an establishment built under such conditions.
“Plumbers & Steamfitters Local No. 155.” (Emphasis supplied.)

These handbills were also distributed to persons coming into the shopping center. While the picketing and handbilling continued, Kroger required the services of several companies — all union shops — to come to its store to make repairs to equipment there. One company, however, did its work, but only after the pickets had left for the day. Another company, John B. Dyke, had to have its work performed by another concern, Plant Electric, when one of Dyke’s own employees failed to make the necessary repairs. Dyke had sent its employee, William Russell, business agent of the local representing Dyke’s employees, to the Kroger store to make the repairs. At the hearing Kroger attempted to show that Russell refused to cross the picket line, but this testimony was rejected by the hearing examiner as being hearsay. Whatever caused Russell to not do the repair work assigned to him, his conduct necessitated Dyke to employ another company to do it instead of simply sending another one of its own men. It is a fair inference that the presence of the pickets was the cause of Russell’s failure to do work at the Kroger store. The picketing was effective.

An inference fairly .drawn from these facts supports a finding that the union’s picketing and handbilling, although directed at the consumer, did in fact induce individuals to refuse to perform or to delay the performance of their services in sympathy with the union. Síich purpose is a violation of Section 8(b)(4)(i)(B) of the Act. American Bread Company v. NLRB, 411 F.2d 147 (6th Cir. 1969).

Aside from the invitation and pressure upon repairmen and others not to enter the picketed premises of Kroger, the more serious and ominous objective of Local 155’s activities was, by its handbills, to suggest to proposed customers of Kroger not to patronize its store. After reciting that the building newly occupied by Kroger had been constructed by contractors who paid less than prevailing union wages, the handbill said to the prospective customers that such facts should be considered by them in deciding “whether or not you want to patronize an establishment built under such conditions.” This was clearly an invitation to the public to boycott the Kroger store.

It is difficult to envisage just what Kroger could then do to assuage Local 155. Its choices were either to vacate the store built by its landlord, thereby-breaching its lease and exposing itself to dire consequences, or to make an agreement with Plumbers, Steamfitters and Pipefitters to require every prospective landlord to employ only union contractors or Kroger would not do business with them.

We think the picketing and the hand-billing must be related to the conversation and conduct in January, 1971, whereby the Local 155 picketed the construction site and sought to persuade Kroger to incorporate in all of its leases a condition that it would occupy no building constructed by a nonunion contractor. What happened, then, in July, 1971, was but fulfillment of the January suggestion that “it would be very detrimental to the Kroger Company if there were any picketing out there.” Kroger was already committed by contract to occupy the building being constructed for it by its landlord. Whichever horn of the dilemma Kroger chose — an immediate cessation of business with Metropolitan Trust Co., or a promise to cease doing business with Metro or any other future landlord who used non-union contractors —it would be joining in a violation of Section 8(b)(4)(i)(ii)(A) of the Act. These sections proscribe inducement or encouragement of any individual employed in commerce in a refusal “to perform any service” where an object thereof is to force an employer — here Kroger — to enter into any agreement “prohibited by'Section 8(e),” which Section also proscribes union conduct having an object of forcing a person engaged in commerce “to cease doing business with any other person.”

Certainly, the picketing here was designed to induce, and was in some degree successful in inducing, others not to perform services for Kroger. It is clear also that an objective of the union’s conduct was to coerce or induce Kroger “to cease doing business with” Metropolitan. Section 8(e) provides:

“(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer [here Kroger] ceases or refrains or agrees to cease . . . doing business with any other person [Metropolitan and other landlords of Kroger].”

The 1971 request of the union that Kroger cease doing business with any other person — including a landlord — who would not agree to use only union labor cannot, in our view, be disassociated from the picketing and handbilling of July and August 1971. The trial examiner did attempt such disassociation.

“I do not find that Kroger was required to enter into any agreement prohibited by Section 8(e). Woodson did suggest that Kroger have put in its lease language requiring the lessor to use union contractors but this casual suggestion was never pursued. I would not find a separate unlawful objective on evidence as tenuous as this.” (Emphasis supplied.)

We consider that the picketing and handbilling cannot be separated in their objectives. The examiner’s order appears to us to be inconsistent with his exoneration of Local 155 of violation of Section 8(b)(4)(i)(ii)(A) and Section 8(b)(4)(i)(B) of the Act, and inconsistent with his holding that the handbilling was a protected activity. His order requires that Local 155.

“1. Cease and desist from threatening, coercing and restraining the Kroger Co., or any other person engaged in commerce, where an object thereof is to force The Kroger Co., to cease doing business with Metropolitan Trust Company and/or to force Metropolitan Trust Company to cease doing business with Rock Steel Building Co., or any other person engaged in commerce.”

No purpose would be served by extensive review of relevant authorities or dissertation of the facts and law here involved. We find the language contained in the dissent of Board Member Ralph E. Kennedy a clear explication of our views. He said, in part:

It is well settled that the words “ ‘induce or encourage’ are broad enough to include in them every form of influence and persuasion.” International Brotherhood of Electrical Workers, Local 501, et al. v. N. L. R. B., 341 U.S. 694, 701-702 [, 71 S.Ct. 954, 95 L.Ed. 1299]. It is likewise well settled that no proof of success or effectiveness of the picketing in creating a work stoppage is necessary in order to establish a violation. N.L.R.B. v. Associated Musicians, Local 802, AFL, 226 F.2d 900 (C.A.2, 1955), cert. denied 351 U.S. 962 [, 76 S.Ct. 1025, 100 L.Ed. 1483]. In the instant case, the mere presence of the picket line was sufficient to constitute inducement or encouragement of individuals employed by Kroger, Price Fuel Electric, Arkansas Sign and Neon Company, John B. Dyke Company, and others. In any event, an inference is warranted that the picket line was effective, at least insofar as the Dyke door equipment repair incident is concerned.
I am also of the view that the failure of the Trial Examiner to find that the distribution of handbills, containing substantially the same message as the picket placards and conducted simultaneously and in generally the same area as the picketing, was tantamount to picketing and was unprotected by the Act was erroneous. In Lumber and Sawmill Workers Local Union No. 2797 (Stoltze Land & Lumber Company), 156 NLRB 388, the Board found that the distribution of handbills in circumstances strikingly similar to those involved here amounted to picketing. Similarly, in Lawrence Typographical Union No. 570 a/w International Typographical Union AFL-CIO (Kansas Color Press, Inc.), 169 NLRB 279, enfd. 402 F.2d 452 (C.A. 10, 1968), the Board found that handbilling in circumstances where it constituted a part of the union’s campaign, which included picketing, also constituted picketing. See also Nashville Building and Construction Trades Council Castner-Knott Dry Goods Store, 188 NLRB No. 69.
I must also dissent to the failure of my colleagues to find that Respondent’s conduct here had an object of forcing or requiring Kroger to agree that in the future all construction work on buildings to be occupied by it would be done by union contractors or subcontractors, and that in the event Kroger leased space from an owner or a developer of a shopping center its lease would provide for a union-built facility. To me, this object is implicit both from Respondent’s picketing and handbilling here, such conduct having occurred after the store had been completed and opened for business, and from the conversations early in January 1971, between Respondent’s Business Manager Woodson and Kroger’s Construction Engineer Patterson. I fail to see in what manner Kroger could settle the dispute with Respondent except to now agree that in the future it would subcontract only to union contractors or deal only with firms employing union contractors. Such activity is clearly proscribed by Section 8(b)(4)(A) of the Act. The Columbus Building and Construction Trades Council, AFL-CIO (Merchandise Properties, Inc.), 149 NLRB 1224, Columbus Building and Construction Trades Council, AFL-CIO (The Kroger Co.), 164 NLRB 516.
On the basis of the foregoing, I would find that by its picketing and handbilling Respondent violated Sections 8(b) (4) (i), (ii)(A) and (B) of the Act as alleged in the complaint.

It might be thought that inasmuch as the picketing and handbilling ceased sometime in August, 1971, our consideration of the matter is academic. However, the Board’s brief to us says:

“On October 29, 1971, the United States District Court for the Eastern District of Arkansas enjoined both the picketing and the handbilling under Section 10(l) of the Act pending resolution of the case by the Board. See Reynolds v. Plumbers, Local 155, 79 LRRM 2224 (E.D.Ark., 1971).”

Therefore, if the Board’s approval of the handbilling is approved, such hand-billing might indeed be resumed.

We remand this case to the Board for entry of orders consistent with our opinion.


source: Caselaw Access Project

author: FEINBERG, Circuit Judge:

license: Public Domain

text:
    George NIEVES et al., Plaintiffs-Appellants-Appellees, v. Russell G. OSWALD, Commissioner of Correctional Services, and Vincent R. Mancusi, Superintendent of Attica Correctional Facility, Defendants-Appellees-Appellants.
    Nos. 462, 737, Dockets 72-1974, 72-2322.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 21, 1973.
    Decided April 20, 1973.

      Herman Schwartz, Buffalo, N. Y. (Edward I. Koren, ACLU Prison Rights Project, Buffalo, N. Y., Kenneth Kimerling, National Lawyers Guild, New York City, William E. Hellerstein, Legal Aid Society of New York, Morton Stavis, New York City, Stanley A. Bass, New York City, on the brief), for plaintiffs-appellants-appellees.
    John H. Stenger, Sp. Asst. Atty. Gen., Buffalo, N. Y. (Louis J. Lefkowitz, Atty. Gen. of N. Y., on the brief), for defendants-appellees-appellants.
    Before FEINBERG, MULLIGAN and TIMBERS, Circuit Judges.
   FEINBERG, Circuit Judge:

Once again we find ourselves dealing with the complexities of 28 U.S.C. § 2281, which has the deceptively simple heading in the United States Code of “Injunction against enforcement of State statute; three-judge court required.” That section and its “Federal statute” counterpart, 28 U.S.C. § 2282, have been accurately described as creating many problems “so complex as to be virtually beyond belief.” This case is a depressingly excellent example, since it presents not merely familiar and difficult problems of jurisdiction, but the added complexity of a last minute attempt to affect appellate review by a motion to withdraw the prayer for injunctive relief. So far as we know, this nuance is an addition to three-judge court esotérica in this circuit. See Part III infra. This litigation offers further proof, if such is needed, of the need for modification or repeal of the three-judge court statutory scheme.

I

Appellants are nine prisoners at the Attica Correctional Facility who sue for themselves and on behalf of all other inmates who were at that institution at the time of the notorious prison revolt in September 1971, and who, as a result of alleged misconduct during that uprising, are subject to disciplinary hearings. Appellants are also possible targets of a special grand jury empaneled in November 1971 to investigate the unfortunate events at Attica. The complaint, brought under 42 U.S.C. § 1983 in the United States District Court for the Western District of New York, alleges that the conduct of disciplinary proceedings in New York prisons denies or threatens to deny them various rights guaranteed by the United States Constitution. The complaint prays for preliminary and permanent injunctive relief against the holding of disciplinary hearings and the imposition of punishment without certain procedural safeguards; declaratory and other relief is also sought.

In November 1971, defendants consented to a temporary stay of disciplinary hearings involving any charges against inmates arising from the events at Attica until the special grand jury made its report or until the merits of plaintiffs’ action were determined. Plaintiffs moved to convene a three-judge court, as the complaint effectively sought to restrain “the enforcement, operation, or execution” of state regulations, 28 U.S.C. § 2281, which govern disciplinary proceedings in state prisons. In March 1972, Chief Judge John O. Henderson denied that motion as well as defendants’ motion to dismiss the complaint for failure to state a claim upon which relief could be granted. In June 1972, the district court ruled against plaintiffs on the merits, except that it granted the plaintiff class limited rights to counsel, in order to protect their privilege against self-incrimination, including the right to consult with counsel prior to any proceeding and to have counsel present during those portions of the proceeding when the inmate is present. As to that, the court ordered injunctive relief. Plaintiffs appeal from denial of the application for a three-judge court and from denial of all but limited relief on the merits of their constitutional claims; defendants appeal from the ruling that permitted limited right to counsel. Because we believe that Judge Henderson improperly refused to convene a three-judge court, we do not reach the various contentions of the parties on the merits, and we reverse and remand for further proceedings.

II

In Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (per curiam), the Supreme Court stated that when an application for a three-judge court is addressed to a district judge, his inquiry is limited to determining (1) whether the constitutional question is substantial; (2) whether the complaint at least formally alleges a basis for equitable relief; and (3) whether the case otherwise comes within the requirements of the three-judge statute. If all criteria are established, the single judge must convene a statutory three-judge court. See Abele v. Markle, 452 F.2d 1121, 1126 (2d Cir. 1971).

Whether these criteria were met in this case depends in turn on the allegations of the complaint, see Goosby v. Osser, 409 U.S. 512, 521 n. 7, 93 S.Ct. 854, 860, 35 L.Ed.2d 36 (1973), all of which are deemed to be true. Id. Plaintiffs claim that the procedures governing disciplinary hearings commenced or to be commenced — procedures required by New York regulations cited at note 3 supra — are constitutionally deficient in, inter alia, the following respects: Inmates are denied an opportunity to present witnesses in their defense and to confront adverse witnesses against them, since they are not permitted to be present when adverse testimony is taken; the rules governing prisoner conduct are so vague as to be void; the testimony of adverse witnesses is unsworn; inmates are not given Miranda-type warnings even though statements made in disciplinary proceedings may be used in subsequent criminal prosecutions; inmates are denied assistance of counsel or of effective counsel-substitute; inmates receive inadequate notice of the rule allegedly violated, of the rules under which fact-finding is to be had, and of the precise facts underlying the charges; and inmates are denied a decision by an unbiased decision-maker and are not accorded a written opinion by the deciding tribunal based upon substantial evidence.

As Judge Henderson perceived in his June 1972 decision on the merits, plaintiffs’ constitutional attack is really based on two distinct theories. Most broadly, plaintiffs challenge the application of the regulations, which do not require the above-claimed procedural safeguards, to any serious disciplinary proceeding in state prisons. Indirectly, by raising questions of self-incrimination, plaintiffs also challenge on a somewhat narrower basis the absence of these safeguards when inmates are threatened, as are plaintiffs, with prison-disciplinary and subsequent criminal proceedings. Judge Henderson believed that neither theory required a three-judge court. While his March 1972 opinion denying plaintiffs’ motion to convene did not squarely address the first, more general, theory, his later opinion reflects his conclusion that the constitutional questions thus raised were insubstantial. As to the narrower theory, he concluded in the earlier opinion that it failed to satisfy the requirements of section 2281, as the claim raised “not ... a question of state-wide concern, but rather only local concern precipitated as a result of the unusual . . . occurrences at Attica.” We think both conclusions were erroneous.

Turning to plaintiffs’ broader theory, an insubstantial federal question is presented if the claim is “ ‘obviously without merit’ or because ‘its unsoundness so clearly results from the previous decisions of [the Supreme Cjourt as to foreclose the subject . . . .’ ” Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933) (citations omitted). Decisions of this court, binding as they are on the district courts within this circuit, whether they be of the single or three-judge variety, may also foreclose a constitutional challenge as insubstantial. See Lewis v. Rockefeller, 431 F.2d 368, 371 (2d Cir. 1970). Judge Henderson believed that plaintiffs’ more general constitutional attack was “a mirror image of the arguments presented to and rejected” by this court, sitting en banc, in Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972) and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). We do not believe, however, that our decision in Sostre renders plaintiffs’ constitutional theory “essentially fictitious” or “wholly insubstantial,” Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L. Ed.2d 512 (1962), or “obviously without merit,” Ex Parte Poresky, supra. As the Supreme Court has only recently informed us:

The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions which merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281.

Goosby v. Osser, supra, 409 U.S. at 518, 93 S.Ct. at 858.

Applying these guidelines here, we note first that Sostre disclaimed comment on “the constitutional adequacy” of the state regulations now before us. 442 F.2d at 199 n. 42. Moreover, not all the procedural guarantees here sought were expressly considered by us in Sostre, although we did reject the claim that due process necessarily entitled a prisoner to all of the following protections : legal counsel, confrontation, cross-examination, right to call witnesses, and “a written statement of evidence and rationale.” Id. at 196-198. While Judge Kaufman’s opinion did not specifically address itself to other protections that these plaintiffs contend are due them but denied — e. g., an impartial tribunal, rules of conduct which are not vague, adequate written notice of the rule violated — the district court in Sostre had mandated most of these, and we registered our “disagreement with Judge Motley’s conclusion that each of the procedural elements incorporated in her mandatory injunction are necessary constitutional ingredients of every proceeding resulting in serious discipline of a prisoner.” Id. at 198; cf. id. at 203. We held that, at a minimum, a prisoner is entitled to be “confronted with the accusation, informed of the evidence against him . . . and afforded a reasonable opportunity to explain his actions.” Id. at 198. In providing these minima and rejecting universal application of those safeguards required by Judge Motley, however, we did not state that none of the rejected safeguards were ever to be constitutionally required in any case; yet there is merit to plaintiffs’ assertion that this is an inevitable effect if the regulations of which they complain apply to all serious disciplinary proceedings without exception. Plaintiffs argue that such a result is not required by Sostre and is unconstitutional; the Sostre court observed, id. at 196, that due process safeguards vary with factual settings. While cross-examination and confrontation (to take two examples) may have been unnecessary to accurate resolution of facts on which Sostre’s punishment was based, plaintiffs assert them to be critical here or whenever punishment turns on recollections and perceptions of adverse witnesses. Although we express no view as to the merits of these and other contentions, we hold that they are not “inescapably” foreclosed by Sostre.

Even more significantly, plaintiffs’ more particularized theory of relief — the unconstitutionality of the regulations as applied where both disciplinary and criminal proceedings against an inmate are in the offing — unquestionably raises grave constitutional issues. Under these special circumstances, plaintiffs say, a prisoner’s dilemma is particularly acute: Since he cannot speak for fear of self-incrimination and cannot call favorable witnesses or cross-examine adverse ones, he can neither explain his actions nor refute the charges against him. See Clutchette v. Procunier, 328 F.Supp. 767, 778-779 (N.D.Cal.1971). Moreover, this claim is not, as the district judge recognized, foreclosed by Sostre. In his view, however, it was a matter of local concern only, resulting from the specialized situation growing out of the Attica revolt. Resolution of the merits by a single judge was therefore appropriate as plaintiffs did not meaningfully seek to enjoin the operation of a statute statewide. Concededly, because a court of three judges is only necessary to protect against “improvident state-wide doom by a federal court of a state’s legislative policy,” Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941), the Supreme Court has permitted single-judge adjudication where local ordinances are sought to be enjoined, see, e. g., Ex Parte Collins, 277 U.S. 565, 568, 48 S.Ct. 585, 72 L.Ed. 990 (1928); or where action taken pursuant to a state statute in fact affects only a particular region or district within a state, e. g., Moody v. Flowers, 387 U.S. 97, 102, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). See generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 29-37 (1964). More recently, the Court has indicated that a complaint seeking to enjoin regulations promulgated by a statewide authority with jurisdiction over specialized institutions throughout a state will not require a three-judge court if the regulation in fact applies merely to a relatively small proportion of those institutions. Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972).

These limitations have no application here, however. So far as we can determine, the governing regulations before us are authorized by statute, were promulgated by state-wide authority and apply in all state prisons. See Sostre v. McGinnis, supra, 442 F.2d at 199 n. 42. To be sure, these regulations, insofar as they allegedly jeopardize rights only of inmates confronted by probable future criminal prosecution, will not affect every prisoner. In the same sense, however, few state statutes or regulations affect all or most citizens of a state, yet a three-judge court may well be necessary. E. g., Goosby v. Osser, supra (pre-trial detainees allege election law unconstitutionally denies them right to vote). We do not suppose that prisoner conduct that may also violate the New York Penal Code is an isolated phenomenon, peculiarly confined to Attica. Our conclusion is further fortified by the recently promulgated state regulation, which squarely contemplates the problem of self-incrimination in prison disciplinary proceedings throughout the state in light of possible subsequent criminal prosecution. We hold that this challenge to the regulations sufficiently implicates well-considered state policy of state-wide application to require three-judge court adjudication of the claim for injunctive relief. Cf. Lewis v. Rockefeller, supra, 431 F.2d at 370 & n. 1 (regulation governing role of counsel at Parole Board prisoner-release hearings held sufficiently state-wide to require three-judge court).

A few further observations seem appropriate. We recognize that the three-judge court statutes are technical enactments, to be restrictively construed. Phillips v. United States, supra, 312 U.S. at 251, 61 S.Ct. 480. In this spirit, we have previously declined to reverse decisions of single district judges, even where sections 2281 or 2282 might literally apply, when we unhesitatingly agreed with the resolution of the merits of a ease by the court below, and where convening a statutory district court seemed therefore a patently wasteful formality. We also agree with those who note the anomaly of requiring three judges to decide a case in which, as here, the state, for whose protection statutory courts were originally devised, is content to litigate the ease before a single federal judge. See, e. g., Currie, supra, at 77. Nevertheless, though adherence to the letter of section 2281 (and judicial gloss thereon) may appear unduly formalized, and though it regrettably adds to the growing Supreme Court caseload, it may also forestall further delay that results from ultimately meaningless efforts, following disposition by a court of appeals, to obtain Supreme Court review: The Court apparently will consider, on its own motion, whether three judges were initially required, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Currie, supra, at 76, and, if so, the entire litigation must commence anew before a court of three judges. See, e. g., Goosby v. Osser, supra; Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963) (per curiam). Thus, in appropriate cases, we have not hesitated to reverse a single judge disposition with instructions to convene a three-judge court. E. g., Gold v. Lomenzo, supra note 6; Kramer v. Union Free School District, 379 F.2d 491 (2d Cir. 1967). But for the development discussed below, that course is the one we would follow here.

III

Our decision to remand is somewhat complicated, but eventually reinforced, by what has occurred in this case on appeal. Following submission of briefs in which plaintiffs urged and defendants opposed the necessity for a three-judge court, and following oral argument at which the three-judge court issue was vigorously pursued by the panel, with the parties adhering to their positions, plaintiffs moved in this court for permission to withdraw their prayer for injunctive relief. Obviously, if such a motion had been made and granted in the district court, the troublesome questions regarding jurisdiction of the single judge would not be before us. Compare Rosario v. Rockefeller, 458 F.2d 649, 651-652 n. 2 (2d Cir. 1972), aff’d, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Carter v. McGinnis, supra note 4, 351 F.Supp. at 789 n. 2. But we do not believe that resolution of the issue of district court jurisdiction can be so easily manipulated after submission of an appeal. Even more significantly, if plaintiffs’ application were granted by us, then the limited injunction that Judge Henderson has already entered and from which defendants cross-appeal, would also fall away. This would suggest a remand to the district court as the sensible course, in any event, to consider the changed situation anew, since plaintiffs do not suggest that they are uninterested in preserving the substance of what they already have. Accordingly, we deny plaintiffs’ motion, without prejudice to renewal before Judge Henderson following remand. If renewed and granted at that time, plaintiffs should seek entry of a fresh decree declaratory in form only, from which a timely appeal to this court can again be taken. Should plaintiffs elect to stand on their prayer for injunctive relief, a three-judge court is required for adjudication of the claims.

Case remanded to the district court for further proceedings consistent with this opinion.

      . ALI, Study of the Division of Jurisdiction Between State and Federal Courts 332 (1969).

      . See, e. g., H. Friendly, Federal Jurisdiction: A General View 50 (1973); Report of the Study Group on the Caseload of the Supreme Court 28-30 (1972) ; 1970 Reports of the Proceedings of the Judicial Conference of the United States 78-79 (1970).

      . Procedures for Implementing Standards of Inmate Behavior and for Granting Good Behavior Time Allowances, 7 N.Y.C.R.R. Ch. V, Pts. 250-53.

      . The judge also granted plaintiffs’ motion that the action be maintained as a class action, but denied plaintiffs’ motion to consolidate the action with Carter v. McGinnis, 320 F.Supp. 1092 (W.D.N.Y. 1970), and 351 F.Supp. 787 (W.D.N.Y. 1972), notice of appeal filed by defendants, Dec. 29, 1972.

      . But see Part III infra.

      . We nevertheless have jurisdiction over this appeal, or “something sufficiently similar,” Gold v. Lomenzo, 425 F.2d 959, 961 (2d Cir. 1970).

      . The reference at 442 F.2d 195 n. 29 seems noncommittal.

      . In his concurring opinion in Sostre, Judge Waterman expressed his understanding that “decision as to what are wholly acceptable minimum standards [of due process] is left for another day through case-by-case development.” 442 F. 2d at 206 n. 2.

      . As to the need for three-judge court adjudication of a challenge to regulations “as applied” in circumstances like these, see C. Wright, Law of Federal Courts 190 (1970).

      . N.Y. Correction Law § 112 (McKinney’s Consol.Laws, c. 43, 1968); id. § 137 (1972-73 Supp.).

      . Compare the decisions cited in note 4 supra, growing out of an inmate uprising in Auburn Correctional Facility in November 1970.

      . 7 N.Y.C.R.R. § 253.4, made part of the record on appeal by order dated February 9, 1973. We hasten to add that this regulation was not before the district court at the time of its decision.

      . We note in passing that plaintiffs’ complaint does allege threat of irreparable injury and lack of adequate legal remedy, satisfying the second Idlewild requirement, that the basis for injunctive relief must formally appear.

      . E. g., Sardino v. Federal Reserve Bank, 361 F.2d 106, 114 & n. 10 (2d Cir.), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130 (1966) (two members of a reviewing appellate court panel and the single judge whose decision is before it— all of whom agreed that the claim was meritless — could be constituted as the three-judge court); see Astro Cinema Corp. v. Mackell, 422 F.2d 293 (2d Cir. 1970); Green v. Board of Elections, 380 F.2d 445, 449 (2d Cir. 1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968).

      . Had plaintiffs initially requested declaratory relief only, no three-judge court would have been required. Cf. Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 155, 83 S.Ct. 554.

      . Cf. Thoms v. Heffernan, 473 F.2d 478, 487-88 (2d Cir. 1973) (Timbers, J., dissenting) (protesting manipulation of appellate jurisdiction by style of relief framed by three-judge court). Plaintiffs’ moving papers admit that “[a]t the oral argument ... it became clear that continuing appellants’ request for injunctive relief might well result in a remand . . . . ” But compare Merced Rosa v. Herrero, 423 F.2d 591 (1st Cir. 1970).

      . We see no reason why such an appeal if taken could not be expedited, should the request he made.


author: McCREE, Circuit Judge. EDWARDS, Circuit Judge

text:
    Orville E. STIFEL, II, Plaintiff-Appellant, v. William F. HOPKINS, Esq., et al., Defendants-Appellees.
    No. 72-1424.
    United States Court of Appeals, Sixth Circuit.
    Submitted Oct. 3, 1972.
    Decided May 1, 1973.

      Orville E. Stifel, II, pro se.
    Lindhorst & Dreidame by James L. O’Connell, Cincinnati, Ohio, for defendant-appellee, William F. Hopkins.
    Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.
   McCREE, Circuit Judge.

This case presents the question whether a federal prisoner who is incarcerated in a state other than the state of his domicile prior to conviction can show that he is a citizen of the state of incarceration for purposes of federal diversity jurisdiction. The District Court held that as a matter of law the prisoner was precluded from making this showing, and dismissed the complaint for lack of jurisdiction. We reverse.

In 1969, appellant was convicted by a jury of violating 18 U.S.C. § 1716 (1970), by mailing an “infernal machine” that exploded and caused the death of the addressee upon opening the package. Appellant’s conviction was subsequently affirmed by this court. United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971), and he is now serving a life sentence in the federal penitentiary in Lewisburg, Pennsylvania. Prior to his arrest and conviction, appellant lived with his parents in Cincinnati, Ohio, and concededly was a citizen of Ohio. As we recognized in our consideration of his prior appeal, he was known in his community “as something approaching a model young man.” 433 F.2d at 431.

In 1971, following the denial of certiorari by the Supreme Court in appellant’s criminal case, he instituted this action against his parents and against the attorney who represented him throughout the criminal proceedings. Reciting that plaintiff was a citizen of Pennsylvania, that defendants were citizens of Ohio, and that the amount in controversy exceeded $10,000, the complaint, which was filed in United States District Court for the Southern District of Ohio, invoked the diversity jurisdiction of the court. The complaint asserted that the attorney had fraudulently induced plaintiff to retain him and had deliberately and negligently engaged in acts of professional misconduct to the detriment of plaintiff; that plaintiff’s parents had agreed to pay the attorney a large sum of money for representation of their son and then obtained a judgment in federal court against plaintiff in the amount of their debt to the attorney; and that plaintiff was entitled to compensatory and punitive damages from the attorney and to injunctive relief against the payment of any moneys by plaintiff’s parents to the attorney.

Defendant attorney moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. In support of this motion, he submitted an affidavit stating that plaintiff resided with his parents in Ohio until he was incarcerated in federal prison in Pennsylvania and that Stifel was in prison at the time of suit. Plaintiff filed a counter-affidavit in which he stated that he was 25 years of age, unmarried, and childless; that from July 1969 he had resided in Pennsylvania and would continue to do so indefinitely; that all his personal belongings and assets were in Pennsylvania and that all his business transactions were conducted in Pennsylvania; that, because of the actions of his attorney as set out in the complaint, he had been subject to public scorn and ridicule in Ohio, had become a “notorious person” there, and was a “target of great public hostility” in his former community, and that he therefore did not intend ever to return to Ohio. He stated that he considered Pennsylvania his home and intended to remain there indefinitely. Plaintiff subsequently submitted a supplemental memorandum in which he asserted that federal prisoners have some choice of the particular prison facility in which they will be incarcerated and that transfers are often allowed, and he contended that he had decided to remain in Pennsylvania despite urgings by unnamed prison officials that he transfer to a facility in Indiana.

The District Court granted the motion to dismiss. The court accorded no weight to appellant’s affidavit on the ground that appellant was not voluntarily in Pennsylvania and his intentions regarding his domicile if and when he should be released from prison were irrelevant. Appellant’s domicile, the court held, remained in Ohio until appellant should have voluntarily changed it, and a prisoner cannot perform such a voluntary act because he is at all time subject to the physical and legal compulsion of federal authorities.

On appeal, plaintiff contends that a rule of law that precludes a prisoner from showing that he has changed his domicile and thereby denies him access to federal court is a rule that is based solely on the litigant’s status as a prisoner, and as such violates the due process clause of the Fifth Amendment. He contends that it works arbitrarily to discriminate against prisoners and to deprive them of an important federal right —the right to sue in federal court. He claims that the rule constitutes an irrebuttable presumption in violation of the Fifth Amendment, that it restrains his First Amendment right to form and express his thoughts, and that it places unjustifiable obstacles in the path of prisoner-litigants that would not have to be overcome by unconfined citizens.

We agree with appellant that the District Court should not have ruled as a matter of law that appellant could not make the requisite showing of a change of domicile. We reach this result not on constitutional grounds but instead on the basis of our interpretation of the meaning of the word “citizen” in the statute defining the diversity jurisdiction of the federal courts.

Federal district courts have diversity jurisdiction of civil actions between “citizens of different states” if the amount in controversy exceeds $10,000. 28 U.S.C. § 1332(a)(1) (1970). The determination of a litigant’s state citizenship for purposes of diversity jurisdiction is a matter of federal law, Ziady v. Curley, 396 F.2d 873, 874 (4th Cir. 1968); Taylor v. Milam, 89 F.Supp. 880, 883 (W.D.Ark.1950); see 1 J. Moore, Federal Practice (pt. 1) ¶ 0.74 [1], at 707.1 (2d ed. 1972), although federal courts may look to state law for guidance in defining terms, formulating concepts, or delineating policies. See Napletana v. Hillsdale College, 385 F.2d 871, 872 (6th Cir. 1967). Thus, although it is settled that citizenship for purposes of 28 U.S.C. § 1332(a) means domicile rather than residence, Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1915); Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914); see D. Currie, Federal Courts 250 (1968); 1 J. Moore, supra, ¶ 0.74 [3], considerations on which federal courts rely in determining domicile often derive from state choice-of-law rules that have been developed in such diverse contexts as probate jurisdiction, taxation of incomes or intangibles, or divorce law. See 1 J. Moore, supra, ¶ 0.74 [3.-1], at 707.53; C. Wright, Law of Federal Courts § 26, at 86 n. 4 (2d ed. 1970); Restatement (Second) of Conflict of Laws § 11, comment o (1971); cf. Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232, 1233-34 (1948). Although this importation of the law of conflicts into resolution of federal jurisdictional questions can have the unfortunate consequence of causing federal courts to lose sight of important federal interests that may be involved, conflicts law is useful in providing basic working definitions. But see Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U.Chi.L.Rev. 1, 10-12 (1968).

To acquire a domicile within a particular state, a person must be physically present in the state and must have either the intention to make his home there indefinitely or the absence of an intention to make his home elsewhere. Gilbert v. David, supra, 235 U.S. at 569-570, 35 S.Ct. 164; Gallagher v. Philadelphia Transp. Co., 185 F.2d 543, 546-547 (3d Cir. 1950); see 1 J. Moore, supra, ¶ 0.74 [3.-1]; C. Wright, supra, § 26. A threshold inquiry, then, is whether a person has the legal capacity to form the intention to abide where he resides. Although in a federal diversity case the capacity of a person to sue or be sued is to be determined by the law of the state of the litigant’s domicile, Fed.R.Civ.P. 17(b), and although state law may define certain concepts or relations that bear on the question of a litigant’s disability to perform particular acts, see Spurgeon v. Mission State Bank, 151 F.2d 702 (8th Cir. 1945), cert. denied, 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009 (1946), the determination in a diversity case whether a litigant can acquire .citizenship in a particular state is a federal question to be resolved in accordance with federal principles. Cf. O’Brien v. Avco Corp., 425 F.2d 1030, 1034 (2d Cir. 1969); Ziady v. Curley, supra; Napletana v. Hillsdale College, supra.

If appellant is not legally capable of establishing a domicile in Pennsylvania, it must be either because he is in Pennsylvania under compulsion and for that reason cannot, as a matter of law, form the intent to make the state his home, or because he is under a civil disability resulting from his status as an inmate of a federal prison. We will consider each of these possible reasons in turn.

I

In his essay on the subject of domicile in 1830, Joseph Story stated the rule to be that “[rjesidence in a place by constraint, or involuntarily, will not give the party a domicile there; but his antecedent domicile remains.” Hogan, Joseph Story’s Essay on “Domicile,” 35 B.U.L.Rev. 215, 221 (1955). It has since become black-letter law that a person cannot acquire a domicile of choice in a place if he is there by virtue of physical or legal compulsion. See, e. g., Neuberger v. United States, 13 F.2d 541, 542 (2d Cir. 1926); Shaffer v. Tepper, 127 F.Supp. 892, 894 (E.D.Ky.1955); Wendel v. Hoffman, 24 F.Supp. 63, 64-65 (D.N.J.1938); 1 J. Beale, The Conflict of Laws § 21.1 (1935); 1 J. Moore, supra, ¶ 0.74 [3.-3], at 707.67; Restatement (Second) of Conflict of Laws, supra, § 17; Note, Domicile as Affected by Compulsion, 13 U.Pitt.L.Rev. 697, 699 (1952); Recent Decision, 26 Mich.L.Rev. 571, 572 (1928). The rule has been applied, in a variety of contexts, to political refugees, see White v. Burnley, 20 How. (61 U.S.) 235, 248-249, 15 L.Ed. 886 (1858); to persons living in forced exile, see Neuberger v. United States, supra; cf. Guessefeldt v. McGrath, 89 F.Supp. 344, 347 (D.D.C.1950), aff’d, 88 U.S.App.D.C. 383, 191 F.2d 639 (1951), rev’d on other grounds, 342 U.S. 308, 72 S.Ct. 338, 96 L.Ed. 342 (1952); to evacuees, see Hiramatsu v. Phillips, 50 F.Supp. 167 (S.D.Cal.1943), noted in 42 Mich.L.Rev. 321 (1943); and to servicemen, see Kinsel v. Pickens, 25 F.Supp. 455 (W.D.Texas 1938); Radford v. Radford, 26 Ky.Law Rep. 652, 82 S.W. 391 (1904). It has also been consistently applied to inmates of penal institutions. See Cohen v. United States, 297 F.2d 760, 774 (9th Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962) (mailing of notice of tax deficiency); United States v. Stabler, 169 F.2d 995, 998 (3d Cir. 1948) (venue for cancellation of citizenship); White v. Fawcett Publications, 324 F.Supp. 403, 404 (W.D.Mo.1970) (diversity of citizenship) ; Urbano v. News Syndicate Company, 232 F.Supp. 237, 239 n. 1 (S.D.N.Y.1964), rev’d on other grounds, 358 F.2d 145 (2d Cir. 1965), cert. denied, 385 U.S. 831, 87 S.Ct. 68, 17 L.Ed.2d 66 (1966) (capacity to sue); Shaffer v. Tepper, 127 F.Supp. 892, 894-95 (E.D.Ky.1955) (diversity of citizenship); Ferguson’s Adm’r v. Ferguson’s Adm’r, 255 Ky. 230, 73 S.W.2d 31 (1934) (jurisdiction to appoint administrator of estate); People v. Cady, 143 N.Y. 100, 37 N.E. 673 (1894) (voting residence); Anno., 132 A.L.R. 509, 510 (1941) (venue); Restatement (Second) of Conflict of Laws, supra, § 17 comment c; 1 J. Beale, supra, § 21.3, at 158-59; cf. Ott v. Ciccone, 326 F.Supp. 609, 613 & n. 3 (W.D.Mo.1970); Wendel v. Hoffman, 24 F.Supp. 63 (D.N.J.1938). As one commentator has observed, this rule

was doubtless designed to help persons who presumably would prefer to retain their old domicile in spite of enforced presence elsewhere. It is also based on the proposition that, if a person is forced to do a certain act, he cannot at the same time be doing the thing of his own free will. Intent, which is of its very nature voluntary cannot co-exist with compulsion.

Note, Domicile as Affected by Compulsion, supra, 13 U.Pitt.L.Rev. at 699. See also 1 J. Beale, supra, § 21.1, at 154; Recent Decision, 26 Mich.L.Rev. 571, 572 (1928).

As an abstract proposition, the rule is unassailable. It makes eminent good sense to say as a matter of law that one who is in a place solely by virtue of superior force exerted by another should not be held to have abandoned his former domicile. The rule shields an unwilling sojourner from the loss of rights and privileges incident to his citizenship in a particular place, such as, for example, paying resident tuition at a local university, invoking the jurisdiction of the local divorce courts, or voting in local elections.

However, in practice this salutary principle has hardened into a per se rule that prevents any prisoner from ever effecting a change of domicile, although at the same time it will yield with respect to persons in other situations when its application would produce illogical or socially undesirable results. See generally Comment, Domicile of Choice — Fixed Rules, 36 Yale L.J. 408, 410-12 (1927). In fact, prisoners appear to be the only persons who may never be able to escape the rule even though there are many other classes of individuals that are subject to compulsion similar to that experienced by prisoners but have been permitted to attempt to show a change of domicile to the place of their enforced presence.

The most obvious example is the serviceman. It has long been the rule that presence at his military station, without more, cannot make the station his domicile because a serviceman is subject to the orders of his superior officer. See, e. g., Deese v. Hundley, 232 F.Supp. 848, 850 (W.D.S.C.1954); Kinsel v. Pickens, 25 F.Supp. 455 (W.D.Tex.1938); Radford v. Radford, supra; 1 J. Moore, supra, ¶ 0.74 [6.-4], at 708.-62; Anno., 21 A.L.R.2d 1163, 1168 (1952); Anno., 148 A.L.R. 1413, 1414 (1944). A corollary of this rule is that a serviceman who lives on the military base, even if his family is living on-base with him, cannot establish a domicile at the base. E. g., Deese v. Hundley, supra; Harris v. Harris, 205 Iowa 108, 215 N.W. 661 (1927); see Anno., supra, 21 A.L.R.2d at 1173-75; 1 J. Moore, supra, ¶ 0.74 [6.-4], at 708.63; Restatement (Second) of Conflict of Laws, supra, § 17 comment d. The reason usually assigned in support of this rule is that a serviceman has no free choice in the decision that he live on base: whether or not he wishes to live on-base, his commanding officer makes the decision that he will be allowed, or required, as the case may be, to reside in quarters on the base. See Harris v. Harris, supra; 1 J. Beale, supra, § 21.2.

However, the serviceman is not precluded as a matter of law from showing that he has established a domicile different from the one he had before he entered military service. Although the standard of proof is variously stated, a serviceman who lives off-base will be regarded as a domiciliary of the place of his residence if the circumstances surrounding his acquisition of an off-base residence unmistakably indicate an intention on his part to abandon his former domicile and adopt a new one. E. g., Ellis v. Southeast Construction Co., 260 F.2d 280 (8th Cir. 1958); Ferrara v. Ibach, 285 F.Supp. 1017 (D.S.C.1968); Deese v. Hundley, supra; see Anno., supra, 148 A.L.R. at 1415-17; Anno., supra, 21 A.L.R.2d at 1167-79; 1 J. Moore, supra, ¶ 0.74 [6.-4], at 708.63-.64; Restatement (Second) of Conflict of Laws, supra, § 17 comment d. Illustrative indicia of intent include affidavits of intention, transfer requests, registration for driver’s licenses, opening bank accounts, addressing tax returns, motive for establishing domicile, and other physical facts evidencing that the desire to remain will not expire when the order requiring presence does. See authorities collected in Annos., supra, 148 A.L.R. 1413, 21 A.L.R.2d 1163; 1 J. Moore, supra, ¶ 0.74 [6.-4]; Restatement (Second) of Conflict of Laws, supra, § 17 comment d; Thames, Domicile of Servicemen, 34 Miss.L.J. 160 (1963); Note, Domicile of Members of Armed Forces, 26 Tenn.L.Rev. 415 (1959); see generally Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232, 1235-40 (1948).

Indeed, the distinction between on-post and off-post residence, for purposes of applying a per se rule, has been criticized as an “artificial” distinction that substitutes a difference of physical fact for one of intention. Note, Domicile as Affected by Compulsion, 13 U.Pitt.L. Rev. 697, 700 (1952). It might also be observed that a serviceman who lives off-base does so only by permission of his superior officers, and thus, although the fact of his living off-base may lend substance to a claimed intention, it can hardly be distinguished in terms of the exercise of volition from the situation of the serviceman who is allowed to live on-base at the pleasure of his commander. Compare 1 J. Beale, supra, § 21.2. And, military personnel have a much greater voice in the location of their duty stations today than was true in the past. See Thames, supra, 34 Miss.L.J. at 165-72; Note, supra, 13 U.Pitt.L.Rev. at 700, 710; Recent Case, 13 Iowa L. Rev. 347, 348 (1928). This proposition has found some support in the cases. See, e. g., Volmer v. Volmer, 231 Or. 57, 371 P.2d 70 (1962); Thomas v. Thomas, 58 Wash.2d 377, 363 P.2d 107 (1961); Percy v. Percy, 188 Cal. 765, 207 P. 369 (1922).

The civilian counterpart of the serviceman — the officer or employee of the federal government who must change his residence upon assuming his duties — may establish a domicile at his new residence. See District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329 (1941); Anno., 129 A.L.R. 1382, 1396-1401 (1940). This is the rule generally with respect to holders of public office or public employees. See Restatement (Second) of Conflict of Laws, supra, § 17 comment h; Anno., supra, 129 A.L.R. at 1392-1404.

Inmates of institutions other than prisons can show that they have become domiciled within institutional confines even if they have been compelled by circumstances beyond their control to become institutionalized. See, e. g., Sealey v. United States, 7 F.Supp. 434, 437 (E.D.Va.1934) (old-soldier’s home); Sturgeon v. Korte, 34 Ohio St. 525 (1879) (charitable hospital); Restatement (Second) of Conflict of Laws, supra, § 17 comment e (paupers); cf. Coppedge v. Clinton, 72 F.2d 531 (10th Cir. 1934) (mental incompetents).

Refugees or fugitives, who leave their homes because of unhappiness with existing political conditions, fear of physical harm, or apprehension of prosecution, can establish domiciles within the jurisdictions in which they seek asylum. See Ennis v. Smith, 14 How. (55 U.S.) 399, 423-424, 14 L.Ed. 472 (1853); Restatement (Second) of Conflict of Laws, supra, § 17 comment g. Persons who are forced to leave their homes and travel to other jurisdictions for reasons of health can become domiciled at their new abodes. See Note, supra, 13 U.Pitt.L.Rev. at 704.

Students or teachers who are required to live in a particular jurisdiction because of the location of the institution in which they are enrolled or employed can establish domiciles within that jurisdiction. See Johnston v. Cordell National Bank, 421 F.2d 1310 (10th Cir. 1970); Milliken v. Tri-County Electric Cooperative, Inc., 254 F.Supp. 302 (D.S.C.1966); Wehrle v. Brooks, 269 F.Supp. 785 (W.D.N.C.1966), aff’d, 379 F.2d 288 (4th Cir. 1967). In Krasnov v. Dinan, 333 F.Supp. 751 (E.D.Pa.1971), on rehearing, 339 F.Supp. 1357 (E.D.Pa.1972), the court held that defendant was a citizen of Pennsylvania for purposes of diversity of citizenship even though he was in Pennsylvania because he was a member of a semi-monastic order that assigned him to teach in that state. In so holding, the court rejected arguments that defendant had moved to the state “only because directed to do so by his superiors” and that “he did not intend to live in Pennsylvania permanently, but only until he was reassigned elsewhere.” 333 F.Supp. at 753.

Many political subdivisions have ordinances requiring police officers and other municipal employees to reside within the city limits. See Detroit Police Officers Association v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), appeal dismissed, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972). Can it be doubted that municipal police officers may establish domiciles within the cities where they must live ?

The foregoing examples warrant two observations. First, the bare fact that a person has been “compelled” to relocate within a particular jurisdiction does not ordinarily prevent him from becoming domiciled therein, although courts are justifiably concerned with substantiating declared intentions. Second, persons are “compelled” to relocate by a variety of circumstances, ranging from pursuit of employment to therapeutic dictates for illness; from the desire to attend educational or vocational institutions to the demands of the sovereign. Although these forces may differ in kind, they often equate in degree, and yet the law in this area has developed along the lines of per se rules tailored to the type of compulsion being exerted rather than in the direction of varying standards of proof directly with the strength of the constraints upon individual freedom of action.

We believe that the prisoner, like the serviceman or the Cabinet official, should not be precluded from showing that he has developed the intention to be domiciled at the place to which he has been forced to remove. No good reason appears for applying a contrary per se rule to him by making the presumption that he has retained his former domicile an irrebuttable one.

In addition, whatever may be the rule ordinarily applied in resolving problems of conflicts of law, we decline to adopt a per se principle in defining “citizenship” for purposes of federal jurisdiction. We ought to be hesitant to define a cognizable class of citizens out of access to the federal courts, which are, after all, the courts of the sovereign to which that class of citizens belongs. Cf. Moore & Weckstein, Diversity Jurisdiction: Past, Present, and Future, 43 Texas L.Rev. 1, 19 (1964). We ought further to hesitate to raise the spectre of unconstitutionality by approving the application of an irrebutable presumption of fact to a particular class of citizens. Cf. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Kelm v. Carlson, 473 F.2d 1267 (6 Cir. 1973).

Finally, it is interesting to observe that the facts of this case provide a rather unique twist to the reason most often given for the inclusion of diversity jurisdiction in the Constitution: the fear of local prejudice against out-of-state residents. See, e. g., Moore & Weckstein, supra, 43 Texas L.Rev. at 15-16; Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 83 (1923); C. Wright, supra, § 23 at 73. Assuming the accuracy of this explanation, determination of the citizenship of a party for purposes of federal diversity jurisdiction should emphasize the physical facts of the party’s situation that could tend to result in local prejudice. See Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U.Chi.L.Rev. 1, 11-12 (1968). Appellant, as we have pointed out, was known as a model young man in his community prior to his well-publicized conviction for the commission of a heinous crime. He has asserted that he will never return to his former community because of the scorn and obloquy to which he would be subject, and there is every reason to agree with his prediction in this respect. Should appellant not have the assurance that his suit for damages against his parents and his attorney would not .be infected by the same feeling of outrage that he anticipates will prevent him from ever assuming residence at his erstwhile home? Federal courts should be alert to vindicate this type of interest in recognition of one of the traditional justifications for their existence.

II

The other possible rationale for denying a federal prisoner the opportunity to establish his citizenship in the state of his incarceration for purposes of diversity jurisdiction, which the District Court did not reach, can be quickly disposed of. We cannot find any federal statute or common-law rule to the effect that conviction and imprisonment destroys a citizen’s right to invoke the diversity jurisdiction of the federal courts. In fact, whatever may be the viability of the “civil death” concept as it relates to the loss of fundamental rights by persons imprisoned for crime, see, e. g., Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); cf. Carrington v. Rash, supra; the loss of the right to invoke the diversity jurisdiction of federal courts is not a collateral punishment of incarceration. See Ames v. Keuhnle, 425 F.2d 224 (5th Cir. 1970); White v. Fawcett Publications, 324 F.Supp. 403 (W.D.Mo.1970); 1 J. Moore, supra, ¶ 0.74 [6.-5], at 708.-65. We have no occasion to decide at this time whether appellant would have the capacity, under Pennsylvania law, to sue, see Fed.R.Civ.P. 17(b); Urbano v. News Syndicate Co., 358 F.2d 145 (2d Cir. 1966), cert. denied, 385 U.S. 831, 87 S.Ct. 68, 17 L.Ed.2d 66 (1966); 1 J. Moore, supra, ¶ 0.74 [6.-5], at 708.65 & n. 7; 3A id. ¶ 17.16; 3B id. ¶ 25.06 [3], at n. 1, or whether, under Ohio law, he would have an enforceable remedy. See Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947); 3A J. Moore, supra, ¶ 17.16, at 653-54; 3B id. ¶ 25.06 [3], at n. 1.

We hold that a litigant will not be precluded from establishing a domicile within a state for purposes of federal diversity jurisdiction solely because his presence there initially resulted from circumstances beyond his control. We recognize the importance of considering physical or legal'compulsiori in determining whether domicile is gained or lost, but we limit the application of involuntary presence to its operation as a presumption ordinarily requiring more than unsubstantiated declarations to rebut.

Accordingly, we reverse the judgment of the District Court and we remand for further proceedings. Appellant has the burden of proving Pennsylvania citizenship, and the District Court may decide the question upon affidavits or, if required, in a full evidentiary hearing, with or without a jury, in his discretion. See 1 J. Moore, supra, ¶ 0.74 [1], at 707.3-.5. In making this essentially factual determination, the court should accord weight to appellant’s declarations of intentions, but in the circumstances of this case the physical facts pertaining to appellant’s incarceration and to the conduct of his personal affairs assume perhaps a greater than usual significance because appellant’s statements of intention cannot bear on the fact of his initial relocation to Pennsylvania. The court should consider factors such as the possibility of parole for appellant, the manner in which appellant has ordered his personal and business transactions, and any other factors that are relevant to corroboration of appellant’s statements. These factors must be weighed along with the policies and purposes underlying federal diversity jurisdiction to determine whether appellant has overcome the presumption that he has maintained his former domicile.

Reversed and remanded.

EDWARDS, Circuit Judge

(concurring).

The legal problems of this case are complex, but the practical problems may prove to be even more formidable. This ease could trigger a quantity of frivolous litigation in the federal courts motivated by the natural desire of prisoners for a trip home to testify, even if the trip has to be under guard.

As the opinion of the court points out, for many years courts have followed the rule that persons (including federal prisoners) removed from their state of domicile by legal orders do not thereby lose their previous domicile. Cohen v. United States, 297 F.2d 760 (9th Cir. 1962); American Surety Co. of New York v. Cosgrove, 40 Misc. 262, 81 N.Y.S. 945 (1903); Metropolitan Life Ins. Co. v. Jones, 192 Ark. 1145, 97 S.W.2d 64, 66 (1936); United States v. Gronich, 211 F. 548 (W.D.Wash.1914); Neuberger v. United States, 13 F.2d 541, 542-543 (2d Cir. 1926). In general, this rule serves to protect the legal rights of prisoners.

The corollary to the rule that imprisonment in another state did not occasion a change of domicile was, however, that during a prisoner’s incarceration outside of his home state, as a matter of law he could not, even if he desired to, effect a change of domicile because his presence in the state of imprisonment was deemed coerced rather than voluntary. United States v. Stabler, 169 F.2d 995 (3d Cir. 1948); Shaffer v. Tepper, 127 F.Supp. 892 (C.D.Ky.1955); Restatement (Second) of Conflict of Laws § 17 (1971).

The opinion of the court in this case rejects the application of the rule just stated above as an absolute and irrebuttable presumption, and I concur. But I also feel that the rule should properly be characterized as a strong presumption capable of being overturned only by allegation and proof of change (or changes) of material circumstances bearing on domicile. I read the court’s opinion as agreeing.

The two fundamental considerations in establishing domicile for purposes of state citizenship are residence in the state and intention to remain there permanently. Napletana v. Hillsdale College, 385 F.2d 871 (6th Cir. 1967). Both of these factors are usually subject to proof by objective facts. In the case of a federal prisoner in an out-of-state prison, however, his compelled presence is certainly not identical with “residence” in its normal usage. And a declaration of intent to remain in the state concerned is greatly weakened (particularly for a person serving a life term) by the obvious lack of choice. The only proofs which come quickly to mind which a federal prisoner might substitute for the usually available objective proofs of domicile would be the establishment of an apparently permanent residence in the state of imprisonment by the prisoner’s immediate family. See Metropolitan Life Insurance Co. v. Jones, supra.

Accepting (as I do) the proposition in the court’s opinion that domicile is generally a question of fact for the trial judge, the great majority of domicile questions posed by federal prisoner diversity cases should be amenable to resolution by affidavits filed on motion for summary judgment without the expense and risk of cross-country prisoner travel under guard.

      . The court observed that the judgment obtained by plaintiff’s father against plaintiff in the United States District Court for the Southern District of Ohio could not avail plaintiff in this proceeding because that judgment was void for lack of jurisdiction.

      . As with servicemen, see Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed. 2d 675 (1965), the determination of a student’s domicile can be affected by the fundamental nature of the right being asserted, such as the right to vote. See Wilkins v. Ann Arbor City Clerk, 385 Mich. 670, 189 N.W.2d 423 (1971); see generally, Anno., 37 A.L.R. 138 (1925).

      . In fact, the Detroit ordinance requires that the employees be actually domiciled within the city, as contrasted with mere nominal residence. See Detroit Police Officers Ass’n v. City of Detroit, 385 Mich. 519, 525-526, 190 N.W.2d 97 (1971), appeal dismissed, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972).

      . Development of the law of “citizenship” for federal diversity purposes has proceeded largely on the assumption that domicile is a unitary concept, meaning the same thing in all contexts. Perhaps the classic statement is that of Justice Holmes: “The very meaning of domicil is the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined. ... In its nature it is one, and if in any case two are recognized for different purposes, it is a doubtful anomaly.” Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758 (1914). Eleven years later, Professor Walter Wheeler Cook took issue with that proposition during the debates of the American Law Institute on the adoption of the first Restatement on the conflict of laws. He argued: “There is no doubt that what you might call the core of the concept is the same in all these situations; but as you get out towards what I like to call the twilight zone of the subject, I don’t believe the scope remains exactly the same for all purposes.” 3 Proceedings of the American Law Institute 227 (1925). This position was rejected by the first Restatement (see Restatement (First) of the Conflict of Laws § 11 (1934)), and it evoked the indignant response of Professor Joseph Beale that to adopt it would ignore 150 years of legal history in which courts had been applying domicile as a single concept by citing cases from different contexts interchangeably in formulating general rules. See 1 J. Beale, The Conflict of Laws § 9.4, at 92-94 (1935).
      However, the argument that domicile is not a unitary concept, that its elements vary according to the nature of the rights being adjudicated, that it is applied in a flexible manner so that courts can reacli equitable results (e. g., by varying the quantum of evidence required or by drawing different inferences from identical facts) has gained scholarly support over the years since Cook’s statement. See Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U.Chi.L.Rev. 1, 12 n. 61 (1968); Reese, Does Domicil Bear a Single Meaning?, 55 Colum.L.Rev. 589 (1955) ; Weintraub, An Inquiry into the Utility of “Domicile” as a Concept in Conflicts Analysis, 63 Mich.L.Rev. 961, 983-986 (1965); Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232, 1233-1234 (1948); Comment, Necessity for a Continued Residence in Acquisition of a Domicile, 37 Yale L.J. 649 (1928). But cf. McClean, The Meaning of Residence, 11 Int. & Comp.L.Q. 1153 (1962). It should be observed that this argument attempts to describe what courts do, not what courts say, because courts ordinarily will pay lip-service to standard rules even while they strain and distort the rules to reach sound results. See Comment, Domicile of Choice-Fixed Rules, 36 Yale L.J. 408, 412 (1927). Nevertheless, occasional judicial expressions of doubt about the utility of the unitary-concept theory can be found. See Williams v. North Carolina, 325 U.S. 226, 244, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945) (Rutledge, J., dissenting); Ziady v. Curley, 396 F.2d 873, 876 (4th Cir. 1968); Woolridge v. McKenna, 8 F. 650, 683 (C.C.W.D.Tenn.1881); In re Estate of Jones, 192 Iowa 78, 82, 182 N.W. 227 (1921).
      Professor Currie is unhappy with the equation of domicile with state citizenship for purposes of diversity jurisdiction because it is difficult to determine and because “it too frequently bears no relation to the probability of bias.” Currie, supra, 36 U.Chi.L.Rev. at 10. He advocates that federal courts focus more on physical facts rather than on a probably unknown domiciliary intention, and he contends that the traditional tests of domicile, because they were not formulated with diversity jurisdiction in mind, should not be taken as determinative. Id. at 11-12 & n. 61. To an extent, this argument ignores the fact that, except when precluded by the operation of some per se rule of law, see, e. g., Seegers v. Strzempek, 149 F.Supp. 35 (E.D.Mich.1957), courts usually will examine the physical facts in an effort to ascertain domiciliary intent, and will often assign a domicile on the basis of what appears to be the choice of a home rather than accept at face value declarations of intention. See Levitt, Recent Domicil Cases, 20 Ill.L.Rev. 134, 138-140 (1925). To the extent that he is arguing that federal courts are not bound by the traditional fixed rules of conflicts of law in the context of resolving federal jurisdictional questions, and that it is unfortunate to attach a blanket equivalence to areas of the law that may intersect in only one particular — the notion of attachment to a single locale— his objections can be met by rejecting the unitary-concept rule and weighing in each case the policies underlying the question at issue and adapting the rules or evaluating the evidence in accordance with those policies. See Ziady v. Curley, supra; Woolridge v. McKenna, supra; Williams v. Williams, 328 F.Supp. 1380, 1382-1384 (D. Virgin Islands 1971); Pannill v. Roanoke Times Co., 252 F. 910, 914-915 (W.D.Va.1918); Reese, supra.

      . As Chief Justice Marshall put it:
      However true the fact may be, that the tribunals of the States will administer justice as impartially as those of the nation, to parties of every description, it is not less true, that the constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different States.
      Bank of the United States v. Deveaux, 5 Cranch (9 U.S.) 61, 87, 3 L.Ed. 38 (1809). See also Lankford v. Platte Iron Works Company, 235 U.S. 461, 478, 35 S.Ct. 173, 59 L.Ed. 316 (1915) (Pitney, J., dissenting); Scott v. Sandford, 19 How. (60 U.S.) 393, 580, 15 L. Ed. 691 (1857) (Curtis, J., dissenting); Dodge v. Woolsey, 18 How. (59 U.S.) 331, 354, 15 L.Ed. 401 (1856).

      . But see Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv.L.Rev. 483, 492-499 (1928).

      . The fact that he is serving a life sentence, of course, lends a great deal of credibility to his assertion that he will never return to Ohio.

      . Considerations ordinarily relevant to determination of domiciliary intent are discussed in 1 J. Beale, The Conflict of Laws §§ 41A-41D (1935); Beale, Proof of Domicile, 74 U.Pa.L.Rev. 552 (1926); Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U. Chi.L.Rev. 1, 11-12 (1968); Heilman, Domicil and Specific Intent, 35 W.Va.L.Q. 262 (1929); Levitt, Recent Domicil Cases, 20 Ill.L.Rev. 134 (1925); 1 J. Moore, Federal Practice ¶ 0.74[3.-3] (2d ed. 1948); Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232 (1948); Note, Self-Serving Declarations and Acts in Determination of Domicile, 34 Geo.L.J. 220 (1946); Comment, Necessity for a Continued Residence in Acquisition of a Domicile, 37 Yale L.J. 649 (1928); Comment, Domicil of Choice —Fixed Rules, 36 Yale L.J. 408 (1927).