author: MARIS, Circuit Judge.

text:
    Mark B. ARONSON and Kenneth W. Behrend, on behalf of themselves and all others similarly situated, Appellants, v. Daniel W. AMBROSE, Chairman of the District Court of the Virgin Islands Committee of Bar Examiners, et al.
    No. 72-1472.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 1, 1973.
    Decided May 22, 1973.

      Mark B. Aronson, Behrend & Aron-son, Pittsburgh, Pa., for appellants.
    Vincent A. Gamal, Gamal & Rosskopf, Christiansted, St. Croix, V. I., for ap-pellees.
    Before MARIS, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

This case involves the question of the constitutional validity of Rule 56(b)(5) of the Rules of the District Court of the Virgin Islands which requires an applicant for admission to the Virgin Islands bar to allege and prove that if admitted he intends to reside in and to practice law in the Virgin Islands. The validity of Rule 56(b) (4) which requires at least one year’s residence before admission to the Virgin Islands bar and of Rule 56(d) which requires applicants for admission of the Virgin Islands bar to take a written examination, are also attacked. The pertinent provisions of Rule 56 are set out in the margin.

The controversy arises out of the following facts. The plaintiffs, both members of the Pennsylvania bar, filed applications for admission to the bar of the Virgin Islands. They each stated, inter alia, that they were Pennsylvania residents and intended to practice law in the Virgin Islands. The defendants, comprising the Virgin Islands Committee of Bar Examiners, informed each plaintiff by letter that the committee was unable to recommend his admission to the Virgin Islands bar for the reasons that he had not passed the Virgin Islands bar examination, that his application did not allege that he will have resided in the Virgin Islands for at least one year prior to admission to the Virgin Islands bar, and that his application did not state that, if admitted, he intended to continue to reside in the Virgin Islands, in accordance with the requirements of subdivisions (b)(4), (b)(5) and (d) of Rule 56. Thereupon, the plaintiffs, alleging violation of their constitutional rights under the Fourteenth Amendment, brought suit in the District Court of the Virgin Islands for an injunction to restrain the defendants from enforcing against them these provisions of the rules governing the admission of applicants to the Virgin Islands bar and sought an order from the court directing the committee to certify them for admission to practice law in the Virgin Islands. The case was tried by Chief Judge Christian, who rejected the plaintiffs’ contentions and dismissed the complaint, Aronson, et al. v. Ambrose, et al., 1972, 9 V.I. -. This appeal by the plaintiffs followed.

The plaintiffs’ principal contention, and the only one we need consider, is that Rule 56(b) (5) is unconstitutional in requiring an applicant for admission to the Virgin Islands bar to allege and prove that if admitted he intends to reside, as well as practice, in the Virgin Islands. They say that although they intend to practice law in the territory they do not intend to give up their residence or practice in Pennsylvania and that the district court erred in holding that the residence requirement of Rule 56(b)(5) did not deny them equal protection of the laws or invade their constitutional right to engage in interstate travel. In his opinion in the district court Chief Judge Christian discusses this question at length. He there describes the problems of judicial administration which would arise in his court if nonresident attorneys were to be admitted to general practice therein, problems with which he obviously is far more familiar than we can be. We find ourselves completely in accord with the views expressed and conclusions reached in his opinion and need add but a few comments.

The interest of a state or territory in promoting the speedy and efficient administration of justice in its courts by assuring the competence and discipline of its bar is great and the actions of its legislature and courts toward these ends ought not to be interfered with except with the greatest caution and only if the measure in question is clearly constitutionally impermissible. The requirement that lawyer must reside in the state in order to practice law there is widely recognized as an appropriate measure to promote the state concern for the proper administration of justice and is in force in most jurisdictions. As Chief Judge Christian pointed out in his opinion those reasons are applicable to the Virgin Islands. Indeed they are even more compelling in that territory because of its geographic isolation from the continental United States. For as a practical matter the Virgin Islands may be reached from the mainland only by travel on limited and, frequently, congested airlines. The case load of the district court is continually increasing and it would be intolerable if the court were to be compelled to depend, even in part, on lawyers living and practicing law on the mainland more than a thousand miles away to answer urgent motion calls, attend pretrial conferences, meet trial calendars and appear on short notice as court-appointed counsel for criminal defendants.

In Martin v. Walton, 1961, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5, the Supreme Court had before it an appeal from the Supreme Court of Kansas [Martin v. Davis, 1960, 187 Kan. 473, 357 P.2d 782] which had upheld a rule of the court requiring an attorney regularly practicing in another state to associate with himself a member of the Kansas bar when practicing in Kansas. The Court dismissed the appeal for want of a substantial federal question, saying:

“Upon plenary consideration, we are satisfied that, both on their face and as applied to appellant, Kan.Gen.Stat., 1949, § 7-104, and amended Kan.Sup. Ct. Rules 41 and 54 promulgated by the Supreme Court of Kansas, acting within its competence upon state law, are not beyond the allowable range of state action under the Fourteenth Amendment. . . .We cannot disregard the reasons given by the Kansas Supreme Court for the Rules in question. . . . Nor does the fact that the Rules may result in ‘incidental individual inequality’ make them offensive to the Fourteenth Amendment. . . .”

The appellant was licensed to practice in Missouri and Kansas and was actually a resident of Kansas. He was, nonetheless, required to associate with himself a locally practicing Kansas attorney when appearing in the Kansas courts, because he was regularly practicing law in Missouri, outside the State of Kansas. We think, as the Supreme Court of Virginia said in Application of Titus, 1972, 213 Va. 289, 191 S.E.2d 798, 801:

“The importance of the Martin, case to the question before us is this: If a state may constitutionally deny an attorney who is resident and licensed in that state the right to appear in its courts without local counsel because he regularly practices elsewhere, it surely can deny, as many states do, nonresident attorneys the right to appear pro hac vice without local counsel. And, by the same token, a state also should be able validly to deny a nonresident attorney the right to practice generally unless he agrees to become a resident upon admission. There is no difference in principle between denying a nonresident attorney the right to appear on a case-to-case basis from denying another nonresident attorney the right to practice generally.”

The Martin case thus furnishes ample support for the action of the district court in holding that the residence requirement with which we are concerned does not run afoul of constitutional limitations. In the Titus case, supra, the Supreme Court of Virginia held constitutionally valid a rule of court which requires a nonresident lawyer who desires to practice in Virginia to become a permanent resident of that state before he may be admitted to practice there. We are in full accord with the views on this question which the court expressed in that case and which are fully applicable to the case now before us. We are satisfied that Rule 56(b)(5) does not deny the plaintiffs the equal protection of the laws. We are equally satisfied, for the reasons adequately stated in Chief Judge Christian’s opinion, that it does not impair their right to engage in interstate travel.

The plaintiffs also urge the invalidity of Rule 56(b)(4) which requires an applicant to reside in the Virgin Islands for at least one year preceding his proposed admission to the Virgin Islands bar and of Rule 56(d), as it existed in May 1971 when their applications were filed, which then required every applicant for admission to the bar to pass a written bar examination except those domiciliaries of the Virgin Islands who had passed such an examination in the place where they studied law. However, in view of the plaintiffs’ definite position that they intend to retain their residence in Pennsylvania after admission, which was a sufficient ground under Rule 56(b)(5) for refusing their applications, we need not consider these contentions.

The judgment of the district court will be affirmed.

      . “Rule 56. Admission to the Bar
      (b) Each applicant for examination under the preceding section must file an application with the Committee of Bar Examiners at least sixty days prior to the date prescribed for annual examination as above, in which he must allege and prove to the satisfaction of the Committee that:
      (4) He shall have resided in the Virgin Islands for at least one year immediately preceding his proposed admission to the Virgin Islands Bar; and
      (5) If admitted to practice, he intends to continue to reside in and to practice law in the Virgin Islands ;
      (d) All applicants for admission to the Virgin Islands Bar shall take the written bar examination as prescribed in paragraph (a) of this rule, as amended, and shall be eligible for admission, being otherwise qualified, upon the successful completion of the said examination.” 5 V.I.O. App. V.

      . The suit was instituted under the Civil Rights Act, 42 U.S.C. § 1983, and the plaintiffs requested a hearing before a three-judge court pursuant to 28 U.S.C. § 2281. However, that section does not authorize the convening of a three-judge court in the District Court of the Virgin Islands, since it is a territorial court and not a United States district court as defined in 28 U.S.C. § 451. Stainback v. Mo Hock Ke Lok Po, 1949, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741. Accordingly, the case was tried by one judge in the district court.
      The constitutional rights to due process of law and to equal protection of the laws have been extended to the Virgin Islands by Section 3 of the Revised Organic Act, 48 U.S.C.A. § 1561.

      . See Am.Jur.2d Desk Book, Document No. 93.

      . We merely note, with respect to Rule 56 (b) (4), that the courts are divided as to the constitutional validity of pre-admission residence requirements. Compare Keenan v. Board of Law Examiners of the State of North Carolina, D.C.N.C.1970, 317 F.Supp. 1350; Webster v. Wofford, D.C.Ga.1970, 321 F.Supp. 1259; Lipman v. Van Zant, D.C.Miss.1971, 329 F.Supp. 391; and Potts v. Honorable Justices of the Supreme Court of Hawaii, D.C. Hawaii 1971, 332 F.Supp. 1392; with Suffling v. Boudurant, D.C.N.M.1972, 339 F.Supp. 257.


source: Caselaw Access Project

author: BOREMAN, Senior Circuit Judge:

license: Public Domain

text:
    James E. PEPPERS, Appellee, v. The UNITED STATES ARMY and those who hold the offices of Secretary of the Army and The Adjutant General of the United States Army, Appellant.
    No. 72-1508.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 8, 1972.
    Decided May 30, 1973.

      Robert E. Kopp, Atty., U. S. Dept, of Justice (Harlington Wood, Jr., Asst. Atty. Gen., John K. Grisso, U. S. Atty., Morton Hollander, Atty., U. S. Dept, of Justice, on brief), for appellant.
    Prank Sloan, Columbia, S. C., for ap-pellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, Circuit Judge.
   BOREMAN, Senior Circuit Judge:

James E. Peppers enlisted in the United States Army and served on active duty from September 7, 1942, until September 18, 1943. He was discharged on the latter date “under other than honorable conditions” because of “traits of character” which rendered his retention in the service “undesirable.” His was the well-known “Section VIII” or “blue” discharge under the then current Army Regulation 615-360. A Board of Officers conducted a hearing and had before it the opinion of Capt. Vincent L. Prankfurth of the Medical Corps, a neu-ropsychiatric consultant, that Peppers suffered from a “constitutional psychopathic state, inadequate personality with emotional instability.” The Board of Officers also considered the opinion of one Second Lieutenant Jack Buchwald that Peppers was a “gold brick,” that he had been involved in several fights with noncommissioned officers and was untrustworthy. The Board found that Peppers’ character was “poor” and that he was “unfit to associate with enlisted men,” and recommended a “blue” discharge, which recommendation was accepted and became the decision of the Army.

At the time of his discharge Peppers’ Army disciplinary record included: (1) sentence by a special court-martial to forfeiture of $18.00 pay per month for four months plus confinement for four months at hard labor for being “disorderly in uniform in a public place,” with the execution of the sentence suspended insofar as it related to confinement; (2) sentence by a summary court-martial to forfeiture of $18.00 pay plus confinement for thirty days at hard labor for being absent without leave, with the execution of the sentence suspended insofar as it related to confinement; and (3) five periods of absence without leave totaling sixty-seven days for which he served seventy-three days in confinement in informal or “company” punishment without trial, or while awaiting review of trial. In the district court Peppers contended that his service record was not before the Board of Officers which recommended his discharge but there has been no finding as to this contention and the record before us does not conclusively demonstrate that the Board was unaware of his service record.

In 1946, Peppers, acting pro se, applied to the War Department Discharge Review Board to have his discharge changed to “honorable.” In his submitted statement to the Review Board Peppers did not deny the various fights and absences without leave which had led to his disciplinary record in the Army but rather sought to justify these occurrences by giving his version of their factual background. In the final paragraph of his statement Peppers claimed: “At the discharge board I was told the blue discharge would not interfer [sic] with me getting a defense job and that was untrue, I feel injustice was done in that very much.” On May 29, 1947, the Review Board found that the action of the discharge board had been in accordance with AR 615-360, Section VIII, that the discharge board’s action was amply supported by the evidence, and that no additional evidence of sufficient weight and credibility to warrant reversal had been adduced. The Review Board accordingly denied the requested relief.

Approximately twenty years later, on June 26, 1967, with the assistance of the American Legion, Peppers filed an application with the Army Board for Correction of Military Records for a change of his discharge to “honorable.” The Correction Board referred the matter to the Army Discharge Review Board for a “rehearing” of its decision of May 29, 1947. On December 5, 1967, the Discharge Review Board conducted a hearing at which Peppers appeared together with his representative as furnished by the American Legion. Peppers testified at length as to his version of the incidents which led to his discharge. He again claimed that at the time of the discharge proceedings in 1943 he was told that a “blue” discharge would not affect his employment opportunities, and contended that the discharge hearing was a mockery since “there was no counselling, no person to guide you at all whatsoever.” On December 12, 1967, the Discharge Review Board concluded that Peppers was properly discharged and that his application for relief should be denied.

On February 20, 1968, Peppers reapplied to the Army Board for Correction of Military Records for correction of his discharge. This Correction Board, upon review of the records, declined to afford Peppers another hearing, 32 C.F.R. § 581.3(c)(5) (1968), and on October 3, 1968, denied relief, noting that insufficient evidence had been presented to indicate probable material error or injustice.

On April 5, 1971, Peppers brought this action in the district court to have his “blue” discharge set aside and to compel the Army to correct his military records in order to change the character of his discharge to honorable. The court accepted jurisdiction under 28 U. S.C. § 1361. Peppers filed a motion for summary judgment and, in an affidavit in support thereof, asserted that his “disciplinary difficulties were the result of ignorance, very limited education, and inability to communicate with his superiors, complicated by his financial inability to care for his wife and children.” He again claimed that he was told at the discharge hearing that the “blue” discharge would not interfere with his obtaining civilian employment and claimed, additionally, that his superiors “further wrongfully connived and abetted in obtaining his wrongful discharge by failing to give him either mental or physical examination before discharge.” Peppers stated that he had never met Capt. Frankfurth, the “neuropsychiatric consultant,” and that Capt. Frankfurth was not present at the discharge hearing, at least to Peppers’ knowledge. ’ He asserted that statements in his service record to the effect that he had at the discharge hearing verified the purported testimony of Capt. Frankfurth and Lt. Buchwald were incorrect. Further, Peppers claimed: “As a result of these false and misleading statements and acts, deponent offered no defense or objection at the discharge hearing, and was deprived of his rights by fraud and de-eeipt [sic] in violation of due process of law.”

After a hearing, the district court vacated the 1943 discharge and remanded the case to the Army for further proceedings with th^ direction that Peppers be given an honorable discharge if further proceedings were not instituted within 180 days. The Court stated, “After reviewing the entire record, the Court concludes that irrespective of the facts concerning plaintiff’s conduct, the procedure used by defendants, namely the discharge hearing and surrounding circumstances, was a blatant violation of due process.”

The district judge found due process denial in the following respects: (1) Peppers was ignorant, uneducated and without counsel, and thus unable to conduct a proper cross-examination of the witnesses against him; (2) he did not understand the consequences of a “blue” discharge and it was “probable” that he was misled as to its effect on his ability to obtain civilian employment; (3) there was no evidence that the Army gave Peppers a physical or mental examination before discharge; (4) Peppers “stated that” Capt. Frankfurth was not present at the discharge hearing, and “he also denies that” he verified the testimony of Capt. Frankfurth and Lt. Buchwald; and (5) due to Peppers’ education and background the Army should have taken extra precautions on his behalf, i. e., he “should have received psychiatric evaluation and the benefit of counsel and a Chaplain.” All of these violations and inadequacies as found by the district court concerned the 1943 discharge hearing.

This court has had occasion to consider a claim of violation of due process rights in connection with the discharge of a Navy enlisted man and to examine and apply pertinent statutory provisions and regulations. In Reed v. Franke, 297 F.2d 17 (4 Cir. 1961), a Navy enlisted man (Reed) sought to prevent his separation from naval service with a “general discharge under honorable conditions” which was unacceptable to him. The pertinent regulations under which he was to receive his discharge made no provisions for a hearing prior to discharge. Reed argued that the failure to provide such a hearing constituted a denial of due process. In holding against Reed, this court stated, 297 F.2d at 26-27:

It is true that the regulations, pertinent here, make no provision for a hearing such as Reed contends he should be given prior to his general discharge from the Navy. But Congress has provided for a review of discharges and dismissals from military departments under 10 U.S.C. § 1553. This statute contemplates a mandatory hearing, upon request after discharge, before a board of five members, at which hearing the person requesting review is permitted to appear in person or by counsel. Such review shall be based upon all available records of the military department concerned and such other evidence as may be presented. Witnesses shall be permitted to testify either in person or by affidavit. Certainly at such a hearing Reed would be entitled to present rebutting testimony and to have the decision based upon the record of the matters considered at the hearing. The board is granted the authority (except in case of a discharge or dismissal resulting from the sentence of a general court martial) to change, correct or modify any discharge or dismissal, and to issue a new discharge in accord with the facts presented to the board. Thus the reviewing board is empowered to nullify the action taken if determined to be erroneous and, in lieu thereof, to order an honorable discharge.
Under 10 U.S.C. § 1552, the Secretary of a military department is authorized to correct any military record when he considers it necessary to correct an error or remove an injustice. By this section there is no provision made for a formal hearing at which the serviceman or his counsel may be present and the procedure is not mandatory, yet a civilian board may be called to act in behalf of the Secretary in considering the matter.
There is no constitutional right to a particular form of remedy. A fact-finding hearing prior to discharge is one way to protect plaintiff’s alleged rights, but it is not the only means of protection and Congress has provided other ways of preventing injustices and correcting errors in connection with military discharges. By statute, Reed is provided an opportunity to avoid the injury he claims he will suffer when the discharge becomes effective.
The fact that the hearing provided by statute does not precede, but follows, Reed’s separation from the service does not make the hearing inadequate. The statutory review is a part of the protective procedure and due process requirements are satisfied if the individual is given a hearing at some point in the administrative proceedings. . . . Those fundamental requirements of fairness which are of the essence of due process in the proceedings pursuant' to the pertinent regulations are met by the provisions of the statutes above noted.

The text of 10 U.S.C. § 1553 was changed in 1962, the year following the Reed decision, but the nature and extent of the hearing, provision for which is made in that section, were not substantially altered.

If the procedures established by 10 U.S.C. §§ 1552 and 1553 are sufficient to satisfy the requirements of due process where there is no hearing whatsoever prior to discharge, as in Reed, supra,, a fortiori those procedures under those sections would satisfy the requirements of due process where, as in the instant case, a hearing prior to discharge is held but is found to be inadequate.

We hold that the review of Peppers’ discharge by the Discharge Review Board in 1947 and the reconsideration thereof in 1967 after a full hearing, together with the review in 1968 by the Army Board for Correction of Military Records, effectively served to remedy any possible violation of due process which may have been inherent at the 1943 discharge proceedings.

As to the postdischarge proceedings themselves, it is clear in view of Peppers’ Army disciplinary record that the rulings of the Army Discharge Review Board and the Army Board for Correction of Military Records cannot be considered arbitrary and capricious. Beyond that determination this court has no power to look. Haines v. United States, 453 F.2d 233 (3 Cir. 1971); Ragoni v. United States, 424 F.2d 261 (3 Cir. 1970).

Reversed.

      . The Army Board for Correction of Military Records is established pursuant to 10 U.S.C. § 1552. See 32 C.F.R. § 581.3 (b)(1) (1967). Normally, application for relief to this Board must be made within three years after the asserted error or injustice is discovered, but a failure to file within the three-year period may be excused if the Board finds it to be “in the interest of justice.” 10 U.S.C. § 1552 (b); 32 C.F.R. § 581.3(c)(2) (1967). Peppers requested that such a finding be made in his case.

      . The Army Discharge Review Board is established pursuant to 10 U.S.C. § 1553. See 32 C.F.R. § 581.2(a)(1) (1967). Normally the Discharge Review Board is precluded from considering requests for changes made more than fifteen years after the date of discharge. Here, however, the Correction Board referred Peppers’ application to the Discharge Review Board for a “rehearing” of the latter’s 1947 determination.

      . Peppers’ affidavit contained a number of additional factual assertions which were intended to supplement the administrative record and to support his contention that he had been treated unfairly by the Army. Noted in this opinion are only those assertions which appear to have been relied upon by the district court in reaching the conclusion, as hereinafter set forth in the text, that Peppers had been denied administrative due process of law.

      . It was at this hearing that Peppers contended that his service record was not before the Board of Officers which recommended his discharge.

      . In reaching the conclusion that Peppers had been denied due process of law the district judge relied in part upon factual claims not presented by Peppers at the administrative level. Such reliance was improper and must be disapproved. “The [district] court’s function . . . was confined to a review of the evidence submitted to the Board for Corrections.” Sanford v. United States, 399 F.2d 693, 694 (9 Cir. 1968).


author: WALLACE, Circuit Judge:

text:
    James G. COCKRUM, Plaintiff-Appellant, v. Charles E. WHITNEY and Philip C. Loucks, Defendants-Appellees.
    No. 26609.
    United States Court of Appeals, Ninth Circuit.
    May 9, 1973.

      D. Patrick McKittrick (argued), Paul & Tucker, Hilley & McKittrick, Great Falls, Mont., for plaintiff-appellant.
    Chester L. Jones, County Atty. (argued), Virginia City, Mont., Ward A. Shanahan (argued), Gough, Booth, Shan-ahan & Johnson, Helena, Mont., Charles F. Angel (argued), Berg, O’Connell, Angel & Andriolo, Bozeman, Mont., Ronald F. Waterman, Missoula, Mont, (argued), for defendants-appellees.
    Before ELY, TRASK and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

James Cockrum brought this civil rights action under 42 U.S.C. § 1983, alleging that the defendants, Charles Whitney and Philip Loucks, violated his rights under color of law. He claimed that this violation resulted in serious personal injuries. After a three-day trial, the jury returned a verdict against both defendants for $169,500.00. Judgment was entered accordingly.

Whitney and Loucks then moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court granted the former motion, set aside the verdict and directed entry of judgment for both defendants. It failed to rule on the motion for a new trial. Compare Fed.R.Civ.P. 50(c). We affirm in part and reverse in part.

During the early morning of September 2, 1966, Cockrum drove through Twin Bridges, Montana. Whitney, the town marshal, testified that he noticed a car travel erratically at high speed through the town. He gave chase and Cockrum was soon aware of his presence.

When Cockrum reached Sheridan, Montana, he parked his car and awaited the appearance of the pursuing vehicle. Whitney soon arrived and pulled up in front of Cockrum’s car. Cockrum got out of his car and stood by the open door.

Whitney emerged from his unmarked car, a 1954 Buick, wearing old clothes and an old hat. His badge and gun were covered by a coat. He approached Cock-rum, failed to identify himself and then told Cockrum to come with him. Cock-rum, unaware of Whitney’s identity, grabbed a wine bottle and hit Whitney on the head. He turned to get back in his car and Whitney shot him.

Loucks was the sheriff of Madison County. Whitney, in addition to his Twin Bridges town marshal assignment, was a special deputy sheriff whose services were limited to special occasions and service of process. Loucks’s only connection with the events of this case was to relay an FBI notice to the bank in Twin Bridges on the previous afternoon.

At the trial, Cockrum testified that he was frightened, that Whitney looked like a bum and that he grabbed the bottle and hit him. Whitney said that his mind went blank and that he did not remember the shooting. The parties agreed that Whitney was acting under color of law.

In setting aside the verdict and granting the judgment n. o. v., the trial judge held that the shooting was not Whitney’s fault but was caused by Cockrum’s bottle blow." He found that the marshal reacted to an unjustifiable battery, that he was privileged to use force to resist the attack and that the force was not excessive under the circumstances.

The standards for granting a judgment n. o. v. and for a directed verdict are the same. Standard Accident Ins. Co. v. Winget, 197 F.2d 97, 100 (9th Cir. 1952). Neither should be granted unless “the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict . . .” Brady v. Southern Ry., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). See also Washington v. United States, 214 F.2d 33, 40-41 (9th Cir.), cert. denied, 348 U.S. 862, 75 S.Ct. 86, 99 L.Ed. 679 (1954). Upon appeal, we are “bound to view the evidence in the light most favorable to [Cockrum] and to give [him] the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962).

The trier of fact could draw one of two inferences from the evidence: Whitney unjustifiably shot Cockrum or that Whitney was justifiably provoked into shooting him. It is the jury, not the judge, which “weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. . . . Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Tennant v. Peoria & P. U. Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L. Ed. 520 (1944). See also Continental Ore, supra, 370 U.S. at 700-701, 82 S.Ct. 1404.

Here the trial judge did reweigh the evidence, selecting one inference over the one chosen by the jury and essentially holding that Whitney acted in self-defense to an unjustifiable battery. As to Whitney, this constituted reversible error.

The trial judge also ordered the verdict against defendant Loucks set aside. Since there was no evidence that Whitney was, at the time of the incident, acting as a special deputy sheriff, that ruling was correct.

We affirm the judgment in favor of Loucks. We reverse the judgment in favor of Whitney and remand the case to allow the district judge to rule on Whitney’s motion for a new trial and such additional proceedings as may be necessary. See Gordon Mailloux Enterprises, Inc. v. Firemen’s Ins. Co., 366 F. 2d 740, 741-742 (9th Cir. 1966).

Affirmed in part and reversed in part.

      . Cockrum also argued that Loucks was negligent in liis training and supervising of Whitney. See Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 365 (1971), rev’d on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). We express no opinion on that theory of liability because there were no facts to support it.


author:
PER CURIAM.
      BRIGHT, Circuit Judge

text:
    Gale Hearold JOHNSON, Appellant, v. John A. DAILEY, Appellee.
    Nos. 72-1646, 72-1719.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 11, 1973.
    Decided May 17, 1973.

      Bright, Circuit Judge, dissented and filed opinion.
    John W. Windhorst, and Phillip H. Martin, Minneapolis, Minn., filed appendix, appellants’ brief and appellants’ reply brief.
    Thomas F. Daley, Jr., Davenport, Iowa, and Gene R. Krekel, Burlington, Iowa, filed brief for appellee.
    Scott P. Crampton, Asst. Atty. Gen., and Meyer Rothwacks and Elmer J. Kelsey and Carolyn R. Just, Attys., Dept, of Justice, Tax Div., Washington, D. C., filed brief for appellee, Commissioner.
    Before GIBSON, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

Gale Hearold Johnson appeals from the dismissal of his civil rights complaint brought in the United States District Court for the Southern District of Iowa under 28 U.S.C. § 1343 and 42 U. S.C. § 1983 and § 1985. The principal issue on appeal is whether Johnson’s claim for relief is barred by a two-year state statute of limitation. We find that Johnson’s action was barred, and affirm.

Johnson was found guilty of second degree murder in Des Moines County, Iowa, in 1934, and he was sentenced to life imprisonment. John A. Dailey, the appellee herein, was the prosecuting attorney. Subsequently Johnson brought a habeas corpus action claiming that the Iowa alibi instruction used at his trial was unconstitutional, that the State had suppressed evidence favorable to Johnson, and that the State had intentionally used false evidence in the prosecution. This Court affirmed the dismissal of Johnson’s habeas corpus action. Johnson v. Bennett, 386 F.2d 677 (8th Cir. 1967). The Supreme Court granted certiorari, Johnson v. Bennett, 390 U.S. 1002, 88 S.Ct. 1247, 20 L.Ed.2d 102 (1968). Thereafter this Court decided Stump v. Bennett, 398 F.2d 111 (8th Cir.), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968), in which we held that an alibi instruction similar to that challenged by Johnson was unconstitutional. The Supreme Court then remanded Johnson to this Court for reconsideration in light of Stump. Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L.Ed.2d 415 (1968). This Court in turn found the alibi instruction challenged by Johnson to be unconstitutional. Johnson v. Bennett, 414 F.2d 50 (8th Cir. 1969). Johnson was released from custody on August 23, 1969.

Approximately three years later, on April 28, 1972, Johnson filed the complaint in this action, the essence of which may be summarized in Johnson’s own words:

“That on November 13, 1934, Defendant Dailey did knowingly and wanton-nessly, maliciously prosecute Plaintiff for murder by use of fabricated facts and falsified evidence, and was unlawfully convicted, and sentenced December 10th, 1934, to life imprisonment.
“Plaintiff has and will continue to suffer great mental anguish and physical pains for the rest of his life as a direct and indirect result of the said Defendant’s . . . illegal acts and unlawful conduct.” (Emphasis supplied.)

The trial court, finding that the latest possible date the claim for relief could have accrued was August 23, 1969, held Johnson’s claim barred by a two-year state statute of limitations. On July 2, 1972, a second complaint was filed by Johnson which contained allegations similar to those in the first complaint. This complaint was dismissed as barred by the statute of limitations and precluded by the trial court’s earlier order. Johnson appealed and the cases were consolidated.

First, since neither 42 U.S.C. § 1983 or 42 U.S.C. § 1985 define the time within which suits thereunder must be brought, we must look to the most applicable Iowa statute of limitations to determine whether this action is barred. See e. g., O’Sullivan v. Felix, 233 U.S. 318, 322-323, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Savage v. United States, 450 F.2d 449, 450-452 (8th Cir. 1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1327, 31 L.Ed.2d 585 (1972); C. Antieau, Federal Civil Rights Act § 85 at 111 (1971); Annot., 98 A.L.R.2d 1160, 1161-1162 (1964). It is arguable that Iowa has two statutes of limitation which conceivably might apply:

2. Injuries to person or reputation —relative rights — statute penalty. Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within two years.
4. Unwritten contracts — injuries to property — fraud—other actions. Those founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years . . . Iowa Code Ann. § 614 ¶ 2, 4 (Supp. 1973). (Emphasis supplied.)

Second, it must be determined which of these two statutes apply by characterizing the basis of the claim for relief. The case of Savage v. United States, supra, 450 F.2d at 451-452, is instructive:

“The deprivation of civil rights claims focus entirely on what was said and done by the various defendants in instigating and encouraging the return of the indictment charging Savage with mail fraud. It is alleged that this indictment was returned solely because the defendants conspired to put erroneous and defamatory material before the Grand Jury. In this factual setting it is the Minnesota statute governing the timeliness of defamation and malicious prosecution actions which, in our view, best speaks to the general type of wrong and conduct sought to be prevented and deterred by §§ 1983 and 1985(3).” But cf. Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970).

Actions for malicious prosecution in Iowa appear to be governed by the two-year statute of limitation quoted above. See Wolfe v. Murphy, 113 F.2d 775, 776 (8th Cir.), cert. denied, 311 U.S. 700, 61 S.Ct. 138, 85 L.Ed. 454 (1940); MA-KA-TA-WAH-QUA-TWA v. Rebok, 111 F. 12, 13 (C.C.N.D.Iowa 1901); Brooks v. Seevers, 112 Iowa 480, 84 N.W. 517 (1900); cf. Clark v. Figge, 181 N.W.2d 211, 215 (Iowa 1970). Since this action may be properly characterized as one in the nature of malicious prosecution it is therefore barred by the two-year statute of limitations.

For the reasons hereinbefore expressed the orders dismissing Johnson’s action are affirmed.

BRIGHT, Circuit Judge

(dissenting).

I dissent. I believe this case to be controlled by our decision in Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970). There we held that the Arkansas one-year statute of limitations for false imprisonment or assault and battery did not apply to a civil rights action against state police who allegedly wrongfully arrested appellant and beat him into unconsciousness. We concluded that either the three-year limitation for actions “founded on any contract or liability, express or implied,” or the five-year general statute of limitations should apply. Ark.Stat.Ann. §§ 37-206, -213 (1962). Quoting from the Ninth Circuit case of Smith v. Cremins, 308 F.2d 187, 190 (1962), we adopted the following reasoning:

“Section 1983 of the Civil Rights Act clearly creates rights and imposes obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course give rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under Section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability. As Mr. Justice Harlan recently suggested, ‘a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even thqugh the same act may constitute both a state tort and the deprivation of a constitutional right.’ ” [Glasscoe, supra, 431 F.2d at 865.]

Following this same reasoning in this case, I would apply Iowa’s five-year general statute of limitations. Iowa Code Ann. § 614 ¶ 4 (Supp.1973). To apply Iowa’s two-year statute of limitations governing common law actions in contract or tort or actions for a statute penalty as opposed to statutorily created liability, seems to me too narrow a characterization of the breadth of the cause of action and remedy intended under the Civil Rights Act.

To the extent that Savage v. United States, 450 F.2d 449, 451 (8th Cir. 1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1327, 31 L.Ed.2d 585 (1972), may be deemed inconsistent with Glasscoe, I would follow Glasscoe as the more persuasive authority. See Baker v. F & F Investment, 420 F.2d 1191, 1197-1198 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 42, 27 L.Ed.2d 49 (1970); Wakat v. Harlib, 253 F.2d 59, 62-64 (7th Cir. 1958); Lazard v. Boeing Co., 322 F. Supp. 343, 345-346 (E.D.La.1971).


author: WALLACE, Circuit Judge: ELY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Judi Ann HOLTZ, Defendant-Appellant.
    No. 72-1965.
    United States Court of Appeals, Ninth Circuit.
    April 18, 1973.

      Ely, Circuit Judge, filed dissenting opinion.
    James E. Dálzell (argued), Tucson, Ariz., for defendant-appellant.
    Sarah Ann Bailey, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appel-lee.
    Before ELY and WALLACE, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, United States District Judge, Portland, Oregon, sitting by designation.

   WALLACE, Circuit Judge:

Judi Ann Holtz appeals her conviction for smuggling merchandise in violation of 18 U.S.C. § 545. After her not-guilty plea and denial of her motion to suppress evidence, she waived a jury and, subsequent to trial, the court found her guilty. We affirm.

On February 2, 1972, Holtz crossed the border at Nogales, Arizona, in an automobile with two male companions. At the port of entry, an inspector questioned the three, noticed they were unkempt, anxious and uneasy and directed them to the secondary area of inspection.

At secondary, another inspector noticed that one of the men was very nervous and “strung out” and that he kept blinking his eyes. He observed that the driver was suspicious-looking and subdued and that Holtz also seemed nervous. He became more suspicious when he noted that the car had New Mexico license plates, yet the occupants had no luggage and had declared no purchases. He ordered all three out of the car and commenced to search it. Although he found nothing, he thought he could smell marijuana. He then searched Holtz’s purse and found a contraceptive. Concurrently, he noticed that one of the men was increasingly nervous.

He next asked all three for identification. The men had none, but all three gave a name and address. He entered this information into a Bureau of Customs computer which identified one of the men as a known associate of a heroin dealer in New Mexico. At this point, the inspector called for assistance from another inspector. They examined the arms of both men and found fresh needle marks. A strip search of the two men was then conducted, but no contraband was found. /During the strip search, one of the men became so sick that he vomited.

The officers then ordered a strip search of Holtz. The inspectress conducting the search required Holtz to take off her clothes. As part of the search, she asked Holtz to bend over and spread her buttocks; then she saw part of a rubber prophylactic hanging down from Holtz’s vaginal area. The inspec-tress stated that the prophylactic was readily viewable and that she finished removing it from Holtz’s vagina.

Tests later determined that the prophylactic contained heroin. This heroin was the basis of the merchandise count. Holtz’s motion to suppress was denied and the heroin was introduced into evidence against her.

In her appeal, Holtz raises two issues. First she asserts that there were no objective, articulable facts, derived from her actions and appearance which produced a real suspicion justifying a strip or skin search. Second, and alternatively, she argues that this was in fact a body cavity search and that, even if there were such a real suspicion, there was not the required clear indication that she was carrying contraband.

Her first contention misconstrues the effect of our prior cases. Admittedly, objective articulable facts are required for a strip search. United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967). Further, the required real suspicion must be directed specifically at the person to be searched. Henderson, supra, at 808. However, we have not limited the perimeters from which the objective articulable facts may be taken. Indistinguishable from this case is our holding that those facts derived from “the companions of the subject of the strip search can be considered in determining when such a search may be justified.” United States v. Gil de Avila, 468 F.2d 184, 186 (9th Cir. 1972). See United States v. Shields, 453 F.2d 1235, 1236 (9th Cir.), cert. denied, 406 U.S. 910, 92 S.Ct. 1615, 31 L.Ed.2d 821 (1972). Here, the nervousness of Holtz and her companions, the fact that one was a known associate of a heroin dealer in New Mexico, the New Mexico car without luggage or purchases, and the fresh needle marks on the companions’ arms are objective facts to be considered by an experienced customs inspector. Suspicion further focused on Holtz when a strip search demonstrated that her companions were not carrying contraband. When coupled with the inspector’s personal knowledge that male users or addicts commonly use a female companion as a carrier, there existed the necessary real suspicion which permitted a strip search of Holtz.

Consequently, we consider her alternative contention. Its resolution turns on the question of where a strip search ends and a- body cavity search begins. She argues that the search was in fact a vaginal or body cavity search, that a mere real suspicion will not support such a search and that the required clear indication was absent. See Henderson, supra, 390 F.2d at 808. The government asserts that the inspectress searched no more than the skin area near the vagina, that there was no body cavity search and that a real suspicion was sufficient. At first blush, the arguments of both parties appear to find support in our prior decisions. However, a close reading of those cases indicates that the search in this case was not a body cavity search and, therefore, this search must be upheld.

One of the first important cases which touches upon the demarcation between the two types of searches was Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967). Customs officers conducted a strip search of Rivas, but he refused to spread the cheeks of his buttocks to permit an observation of his rectum. Later officers restrained Rivas while a doctor conducted a rectal examination with gentle probing. The doctor found and extracted from Rivas’s rectum a rubber-enclosed packet of Percodan tablets, a narcotic. This court upheld the search. In defining the test to be applied, we held that “a search involving an intrusion beyond the body’s surface” required a clear indication or plain suggestion. Id. at 710 (emphasis added).

Our next significant case, and upon which Holtz primarily relies, was Henderson v. United States, supra. Mrs. Henderson was stopped at the border, taken to the customs office and then to a room, and required to take off her clothes. An inspectress “made a visual examination of her body and demanded that she bend over and, with her hands pull her buttocks apart and up to permit inspection of her vagina.” 390 F.2d at 809 (emphasis added). Mrs. Henderson refused to do so and the inspectress concluded she was hiding something. She was then taken to a doctor who forcefully extracted about three ounces of hei • oin from her vagina.

This court overturned the search by the inspectress finding that it violated the Fourth Amendment. We held that “if in the course of the search of a woman there is to be a requirement that she manually open her vagina for visual inspection to see if she has something concealed there, we think that we should require more than a mere suspicion.” 390 F.2d at 808 (emphasis added). That the decision turned upon the requirement of a manual opening of the vagina is clear from its reliance upon Rivas, supra, and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Each of those cases involved an intrusion into the body, and each required a clear indication as a justification. Furthermore, in Henderson we noted that the inspectress had not found “anything, such as vaseline, around her vagina.” 390 F.2d at 809. Thus Henderson did not rule invalid a visual inspection of the surface of the vaginal area. Only an examination by means of a manual or visual intrusion into the cavity itself was forbidden, absent a clear indication.

The pattern of our subsequent eases has maintained the differentiation between the two types of searches developed in Rivas and Henderson. For example, cases involving anal searches have consistently allowed inspection of the area around the rectum as part of a strip search, yet have required satisfaction of the clear indication test for a probe of the cavity itself. See United States v. Sosa, 469 F.2d 271 (9th Cir. 1972); United States v. Velasquez, 469 F.2d 264 (9th Cir. 1972); United States v. Summerfield, 421 F.2d 684 (9th Cir. 1970); United States v. Castle, 409 F.2d 1347 (9th Cir.), cert. denied, 396 U.S. 975, 90 S.Ct. 443, 24 L.Ed.2d 443 (1969). In Sosa the strip search includ-b ed a request that the defendant spread his buttocks and there was a subsequent observation of grease on them. 469 F 2d at 272. We specifically held that “inspection of the surface of the body in the anal area is permissible in a skin search.” Id. at 273. In Velasquez we reached the same result. 469 F.2d at 266. In Summerfield we noted that certain evidence of narcotics usage “plus the sight of foreign material in appellant’s rectum during the skin search constituted the ‘clear indication’ necessary” for a later rectal probe. 421 F.2d at 685. Finally, in Castle, during the strip search, an agent “wiped the area of the defendant’s rectum” and detected “an oily substance which resembled vaseline.” 409 F.2d at 1348. This evidence, together with other reliable information, provided the necessary clear indication for a doctor’s rectal examination.

In these cases, we have allowed, as part of the strip search, a spreading of the buttocks and a visual observation of the area of the rectum. Furthermore, we have allowed the evidence gained while viewing the rectal area during the strip search to assist in providing the clear indication required for a subsequent body cavity search or probe. These cases clearly indicate that requiring Holtz to bend over and spread her buttocks would be part of a strip search and that a subsequent observation of the area thus exposed would not be a body cavity inspection. With Holtz in this position, the inspectress saw an object protruding from her vagina. Obviously the inspectress need not have confined her gaze to the rectal area. Contraband could have been taped to Holtz’s thigh or crotch, which also are not body cavities. Therefore, it would be anomalous and inconsistent with our other Fourth Amendment cases if we were to uphold .an initial rectal area view yet overturn a ¡further observation and seizure of an / object in plain view.

Our prior cases involving vaginal searches are not inconsistent with this holding. In Morales v. United States, 406 F.2d 1298 (9th Cir. 1969), we held the seized evidence inadmissible because a clear indication was lacking. The customs officials in that case required the defendant “to bend over and expose her vaginal area.” 406 F.2d at 1299. Relying upon Henderson, supra, we held “that when the cavity to be searched is a vagina,” a clear indication must exist. 406 F.2d at 1299-1300. Unfortunately, the Morales decision does not explain how the defendant exposed her vaginal area.

This case differs from Morales in that there is no evidence that this inspectress was in the process of a vaginal cavity search. The facts of this case are closer to those of United States v. Shields, supra. There we upheld the seizure of a condom which was observed partly protruding from the suspect’s vagina. That case involved an inspection which “was confined to the surface of appellant’s body — excluding the vaginal area — until after the protruding condom was observed.” 453 F.2d at 1237.

In the present case, Holtz was required to bend over and spread her buttocks. The inspectress then saw a prophylactic hanging down from her vaginal area. There was no evidence that Holtz was requested to or that her actions exposed the vaginal cavity itself to the invasion and intrusion regulated by Rivas and Schmerber, supra. There was no evidence that Holtz manually opened her vagina as in Henderson and Morales, supra. And finally, there is no basis in the present facts for distinguishing the anal search cases such as Sosa, Velasquez, Summerfield and Castle, supra. Therefore, we hold that the discovery of the prophylactic here occurred during a strip search and that only a real suspicion was necessary. That test was adequately met.

Affirmed.

ELY, Circuit Judge

(dissenting):

I respectfully dissent. Here, again, we confront a disgusting and saddening episode at the Mexican border involving the disrobing and search of a woman by United States border police. That the woman so degraded herself as to offend the sensibilities of any decent citizen is not questioned. Nevertheless, if we are to continue to safeguard the innocent and virtuous from the potential degradation and humiliation of “strip searches”, we cannot permit our revulsion at one woman’s acts to induce our Court to depart from its established principles. “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).

In 1969,1 took note of

“the disturbing, even appalling, information that ‘80 to 85 percent’, at least four fifths, of all border transients whose bodily cavities are invaded by the border police are innocent of the suspected wrongdoing. Morales v. United States, 406 F.2d 1298, 1300 n. 2 (9th Cir. 1969).”

Thompson v. United States, 411 F.2d 946, 948 (9th Cir. 1969) (original emphasis). Now, four years later, we have updated information. Recent hearings conducted by California’s Representative Edward Roybal disclosed the following information drawn from an available sample:

“[0]f the 1,800 women stripped and searched [during a certain period] only 285 [approximately 16 percent] were found carrying any contraband, and very few concealing it in body cavities.
“[S]everal women testifed that they were subjected to humiliating body, cavity probes by nonmedical personnel under the most unsanitary conditions.”

Metropolitan News, June 28, 1972, at 1, col. 3 (emphasis added). The distinguished Congressman reached this conclusion :

“It became evident from the testimony presented not only by the accusers but by customs officials as well that the procedures used at the border have failed to protect a person’s right to privacy. .■ . .”

Id.

I remain firmly persuaded that rudimentary concepts of fundamental fairness, the right to be free from unreasonable searches and seizures, and the right of privacy emanating from various constitutional guarantees compel antecedent judicial authorization for a border cavity search. Authorization would not, of course, be conditioned upon a finding of probable cause but only upon a showing of a clear indication or plain suggestion that contraband may be located in a body cavity. Thompson v. United States, supra, at 947; Huguez v. United States, 406 F.2d 366, 383, 384 (9th Cir. 1968) (concurring opinion); Blefare v. United States, 362 F.2d 870, 880-888 (9th Cir. 1966) (dissenting opinion). While our Court has not yet adopted this view, it is encouraging to note the number of commentators who share my position. E. g., Comment, Intrusive. Border Searches—Is Judicial Control Desirable? 115 U.Pa.L.Rev. 276 (1966) ; Note, 21 Rutgers L.Rev. 513 (1967) ; 18 Case W.Res.L.Rev. 1007 (1967); 19 Fla.L.Rev. 374 (1966). See Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007 (1968). While the Supreme Court has not yet chosen to address this problem, my position is, I believe, suggested by dicta in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966):

“[W]e are satisfied that the test chosen [extraction of blood samples] to measure petitioner’s blood-alcohol level was a reasonable one. [F]or most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing.
“Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment— for example, if it were administered by police in the privacy of the station-house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
“ . The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions."

384 U.S. at 771-772, 86 S.Ct. at 1836 (emphasis added) (footnotes omitted).

I am well aware, of course, that the search challenged here was, at least at its inception, a strip search and not a cavity probe, and that, consequently, reasonableness must be measured against strip search standards. Compare, e. g., United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. 1970) (strip search) with Henderson v. United States, 390 F.2d 805 (9th Cir. 1967) (cavity probe). But I am equally aware that a strip search presents similar potential for abuse. Moreover, it requires no exceptional imagination to recognize that the judicial demarcation between justification for strip searches and cavity probes may, to the average border policeman, likely become obscure. That strip searches sometimes, according to the police seem to “reveal” objects protruding from cavities, thereby obviating the stricter requirements for cavity probes, does not assuage my concern for the countless numbers of innocent travelers who may be subjected to abusive humiliation.

In undertaking to protect innocent men and women, our Court has adopted stringent requirements for a strip search. In United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970) (emphasis added), Judge Hufstedler, for our Court, wrote:

“In Henderson v. United States (9th Cir. 1967) 390 F.2d 805, 808, we recognized that, even though probable cause is not required to initiate a border search, ‘mere suspicion’ would not justify initiating a strip search. The customs official must have ‘at least a real suspicion, directed specifically to that person,’ to sustain such a search. But neither Henderson nor our decisions following it have further defined the ‘real suspicion’ test stated there. We do so now.
“ ‘Real suspicion’ justifying the initiation of a strip search is subjective suspicion supported by objective, ar-ticulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law.
“The objective, articulable facts must bear some reasonable relationship to suspicion that something is concealed on,.the body of the person to be searched; otherwise, the scope of the search is not related to the justification for its initiation, as it must be to meet the reasonableness standard of the Fourth Amendment.” [Citing Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring)].

While the record before us may give rise to a reasonable suspicion that appellant was keeping company with undesirable characters, I cannot perceive sufficient “objective articulable facts [that bore] some reasonable relationship to suspicion that something was concealed on the body . . .’’of appellant. Surely her nervousness could not be such a fact, for I daresay even the most law-abiding travelers are often nervous in the presence of border guards. Many fear, if not denudation and the possible gouging and probing of their recta and vaginae, the possibility that they may have innocently forgotten to declare some small foreign article placed in their ransacked luggage. The majority also notes with significance that the automobile in which appellant was riding bore out-of-state license plates and that appellant made no purchases in Mexico. It frankly escapes me how these admittedly objective facts gave rise to a reasonable suspicion that the appellant was concealing contraband on her person.

Finally, my Brothers appear to ascribe some importance to the discovery of a condom in the woman’s purse. To infer from this that another contraceptive containing contraband might have been concealed within one of her body cavities reflects either startling naiveté or an unwillingness to recognize the sexual mores of many of our citizens in these times. Moreover, even if the inference be possible, it is irrelevant to the reasonableness of a strip search, since such a limited search could never confirm or dissipate the suspicion arguably raised.

Appellant was, in effect, stripped and searched becauge of her nervousness, her choice of companions, and her decision not to buy any souvenirs in Mexico. If these be objective, articulable facts sufficient to justify one of the most overwhelming personal incursions allowable under law, then the dignity and sanctity of the individual in our society stand gravely threatened.

I would reverse.

      . This court upheld the strip search in Gil de Avila, supra, on quite similar facts.
      In analyzing whether the test of real suspicion was met, the dissent inadvertently failed to specify that Holtz’s companions were nervous and one was “strung out;” the absence of luggage; the detection of an odor of marijuana; the lack of any identification; the information received from the computer; the fresh needle marks on Holtz’s companions; and the vomiting by one of them. Any one of the factual findings (as the appearance of a condom in Holtz’s purse) may not necessarily point towards the conclusion of attempted smuggling. But it is the totality of facts before an experienced inspector which leads to the real suspicion. The concern of the dissent that Holtz suffers from her choice of companions overlooks our holding in Gil de Avila.

      . The dissent in Henderson also described the body cavity search as one “involving intrusion beyond the body’s surface.” 390 F.2d at 811.

      . These later cases are consistent not only with Henderson and Rivas, supra, but also with older cases. See Denton v. United States, 310 F.2d 129 (9th Cir. 1962); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960), cert. denied, 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265 (1961); Blackford v. United States, 247 F.2d 745 (9th Cir. 1957), cert. denied, 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586 (1958).

      . Henderson stated the rule that, where “there is to be a requirement that she manually open her vagina for visual inspection,” the body cavity test must be met. 390 F.2d at 808.

      . This court has noted before the ambiguity of the factual description in Morales. See Shields, supra, 453 F.2d at 1237.

      . These statistics reflect the experience of a physician, who according to the records of our court, frequently assists the border police in their searches of bodily cavities. I think it not unreasonable to believe that in situations wherein the police may not seek medical assistance, an even greater percentage of innocent persons are offended.

      . I think, moreover, that my Brothers may have overlooked the significant threat to our national fiscal interest. It is not unlikely that many victims of border abuse have legitimate claims for substantial damages against our Government. See District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) (dictum) ; Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

      . The second paragraph in the majority’s first footnote, which was added after my dissent was originally circulated, serves —if no other purpose — to emphasize the substance of my greatest concern. If the addition is intended to bolster the majority’s legal posture by fleshing out our Circuit’s definition of “objective, articula-ble facts”, then the impetus is misdirected. I have little doubt that, as my Brother Wallace ably and carefully observes, prior decisions of this Court demonstrate that the combination of factors cited by the majority constitute “objective, articulable facts”, sufficient under our Court’s current approach, to legitimize the search of appellant. But the focus of my concern is that the flimsy cast some of our decisions, including the majority’s opinion here, have given to “objective, articulable facts” provides the innocent with but a fragile shield with which to fend off offensive, if not abusive, bodily invasions by the border police.


author: MULLIGAN, Circuit Judge:

text:
    Nancy A. GILLIN, Plaintiff-Appellant, v. FEDERAL PAPER BOARD COMPANY, INC., Defendant-Appellee.
    No. 575, Docket 72-1907.
    United States Court of Appeals, Second Circuit.
    Argued March 16, 1973.
    Decided May 11, 1973.

      Lewis M. Steel, New York City (Gretchen White Oberman, New York City, of counsel), for plaintiff-appellant.
    Donald F. Keefe, New Haven, Conn. (Tyler, Cooper, Grant, Bowerman & Keefe, New Haven, Conn., of counsel), for defendant-appellee.
    Susan J. Johnson, Washington, D. C. (William A. Carey, General Counsel, Julia P. Cooper, Associate General Counsel, Beatrice Rosenberg and David W. Zug-schwerdt, Attys., Washington, D. C., of counsel), for United States Equal Employment Opportunity Commission, ami-cus curiae.
    Before HAYS, MULLIGAN and OAKES, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from a judgment entered on May 30, 1972 in the United States District Court for the District of Connecticut, dismissing damage claims for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970), after a nonjury trial on January 5, 1972 before the Hon. M. Joseph Blumenfeld, Chief Judge. On May 26, 1972, the court filed a memorandum decision containing its findings of fact and conclusions of law. Appellant Nancy Gillin (Gillin) contends that the district court erred in rejecting her claims that her former employer, Federal Paper Board Co., Inc. (Federal), denied her a promotion and a salary commensurate with her duties because of her sex and retaliated against her when she filed discrimination charges with the United States Equal Employment Opportunity Commission (EEOC). Affirmed in part, reversed in part and remanded.

Federal operates paper mills and carton plants in Connecticut and elsewhere in the United States. In 1961 it established a New England Transportation Department which was a freight hauling operation for both raw materials and finished products. A number of trucks were leased and a terminal established in New Haven, Connecticut. During the same year, appellant, who had been an employee of Federal in New Haven since 1957, was appointed administrative assistant to the traffic manager, Mr. Aaron Denenberg. Her new duties included responsibility for the accounting functions of the Department, personnel and payroll records and the purchasing of office supplies. When Denenberg was away, Gillin was in charge of the daily office operation. In April, 1962, Denen-•berg resigned after having expanded the Department by leasing additional trucks which were operated from a terminal in Sprague, Connecticut. Thereafter, the New England transportation operation was placed under the jurisdiction of a vice-president, Mr. Hesser, who was general traffic manager for the mills in the Western Division. Eventually in 1965 Mr. Varsho was appointed traffic manager of the New England Division trucking and freight operations.

On March 15, 1966 Varsho informed Gillin that he was being promoted to the position of general traffic manager. She indicated her interest in the job he was vacating but was advised by Varsho that it “was more suited to a man” and “wasn’t suitable for a woman.” Gillin countered by calling his attention to the Civil Rights Act of 1964 and on March 24, 1966, she filed her complaint with the EEOC alleging sex discrimination since she had not been considered for the traffic manager’s position.

I

As a result of her charges, the EEOC conducted investigations and compiled a 260 page investigative report. Prior to trial the parties requested the district court to rule on the admissibility of this report as a business record under 28 U. S.C. § 1732. On February 15, 1970, Hon. Robert C. Zampano filed his opinion:

[The investigative report] is a mishmash of self-serving and hearsay statements and records which contain conflicting opinions, comments and inferences drawn by investigators, potential witnesses, and unidentified persons. This maze of material would thwart rather than ease the trier’s efforts. Credibility of the witnesses will play a major role in resolving the conflicting positions of the parties here; justice requires that the testimony of the witnesses be given in open court, under oath, and subject to cross-examination. On the record before this Court the tests of need, reliability, and trustworthiness have not been met and, therefore, [the report] as a unit is not admissible as a business record under 28 U.S.C. § 1732.

52 F.R.D. 383, 385.

His decision, however, did not preclude the appellant from introducing any portion of the document which might be found admissible on other grounds. See 52 F.R.D. at 384. Judge Blumenfeld adhered to these guidelines at trial.

On appeal it is urged that the failure to admit the EEOC investigative report constituted error. Appellant’s only authority for finding the document admissible is Smith v. Universal Serv., Inc., 454 F.2d 154 (5th Cir. 1972), which is clearly distinguishable. In that case the court held admissible as a business record under 28 U.S.C. § 1732, not the lengthy investigatory report sought to be introduced here, but rather the decision of the EEOC containing a summary of the investigation. The EEOC deision in that ease takes up little more than a page of the court’s opinion in which it is set forth. See 454 F.2d at 158-160. A comparable document was ruled admissible by Judge Zampano in this case (52 F.R.D. at 384-385) and was received into evidence as a plaintiff’s exhibit. Moreover, the investigator who compiled that portion of the investigative report favorable to the appellant, was permitted to testify from it on trial and there is no showing of any prejudice from the report’s exclusion. Under these circumstances we find no reason at all to disturb the district court’s judgment on this ground. See Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972).

II

Appellant claims that she was discriminated against because she was denied a salary commensurate with her duties. We believe that the finding of the trial court that this position is “wholly unsupported” is correct. There is no evidence of sex bias with respect to wages. Mr. Varsho, her supervisor, who refused to consider her for promotion (see III infra), in fact recommended in October, 1965 that she be given a $600 raise, praising her efficiency and pointing out that she was receiving less than some of her subordinates. While even after receiving the raise, she was earning slightly less than one male dispatcher she was supervising ($128.65 per week as compared with $136.90 per week), there is no proof that her occasional supervisory responsibility properly merited a higher salary than that of a subordinate whose skills might well command more in the job market. It is not at all unusual that those.who direct or supervise, are paid less than those whose particular job skills or experience may be worth more to the employer. It should also be noted that Gillin was entitled to overtime while dispatchers were not. Suffice it to say that the record here is barren of proof either that her salary was incommensurate with her duties or that if this was the case that the disparity was due to her sex. See Ammons v. Zia Co., 448 F.2d 117, 119-120 (10th Cir. 1971); cf. Arkansas Educ. Ass’n v. Board of Educ., 446 F.2d 763, 770 (8th Cir. 1971).

Appellant’s claim that her employer retaliated against her for filing charges with the EEOC by demoting her and ultimately discharging her, was rejected by the district court and properly so in our view. The facts upon which appellant rests her claim of retaliatory demotion are that prior to 1966 she had neither punched a time clock nor been paid for overtime hours, and that in May of 1966, subsequent to the filing of her discrimination charges, she was directed to begin punching the clock and not to work overtime hours without permission. This resulted in a reduction of her hourly work week and a commensurate reduction was made in her work load, but her weekly salary remained unchanged.

If this is to be characterized as a demotion, it is clear that the change was not precipitated by the EEOC complaint, but rather by a determination of the Wage and Hour Division of the United States Department of Labor in January-1966 that Gillin was a non-exempt employee and thus entitled to overtime wages. While it did take Federal several months to act on the Department’s findings, there was testimony that Gil-lin’s employment status was altered in accordance with usual company procedures and Gillen testified that the company’s only alternative to putting her on restricted hours was to give her a promotion.

The evidence concerning Gillin’s termination of employment at Federal is in conflict. The only thing that is undisputed is that she was fired in July, 1966. Mr. George Sweezey, her supervisor at that time, testified regarding several instances where Gillin was uncooperative and was the source of continuing dissension in the office. He further stated that after a discussion with her in which he tried to straighten things out, she informed him that she had been advised by her lawyers and that it would be helpful to her discrimination case if she could get fired. He then made out a “blue slip” stating “uncooperative” as the reason for discharge. Gillin denied this, taking the largely unsupported position that her employment was terminated in retaliation for her claim of discrimination against Federal.

It is clear from Judge Blumenfeld’s opinion that he chose to credit Sweezey’s recollection of events. He heard the testimony of both Gillin and Sweezey and had an opportunity to observe their demeanor and assess their credibility. We have no basis to say that his assessment was wrong.

HI

Appellant urges further that Federal’s refusal to consider her for promotion to the position of New England Traffic Manager constituted employment discrimination on the basis of sex. We are fully in accord with the finding below that Sweezey who ultimately was awarded the position, was clearly better qualified for the job than Gillin. We see no point in detailing his background which is set forth in the opinion below. In any event, appellant does not seriously dispute that Sweezey was the superior applicant. The suggestion that he was overqualified and that the job requirements ultimately enumerated were determined subsequent to Gil-lin’s EEOC complaint, does not at all justify the position that the qualifications were artificially augmented in order to eliminate Gillin. The position to be filled carried substantially greater responsibilities and demanded commensur-ably higher qualifications than those required of predecessor incumbents. The requirements were clearly job related and there is no proof at all of artificial inflation except for the post hoc ergo propter hoc thesis of appellant. We have no quarrel either with the finding below that Gillin was not qualified. While Gillin was in charge of the traffic operation when her superiors were absent, her experience was primarily administrative and clerical and not operational. Her intermittent supervisory responsibility did not preclude Federal from selecting an obviously superior applicant to assume the permanent and expanding job responsibility which the employer envisioned. But it does not follow that although the company violated no law in hiring Sweezey, it was not guilty of sex discrimination against Gil-lin.

Federal does not now and did not at any time seek to avail itself of the statutory defense that sex was “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . .” 42 U.S.C. § 2000e-2(e)(1) (1970). Therefore Gillin was entitled to be treated as any other applicant for the position without any regard whatever to sex. She was not given equal treatment and the record establishes that Federal’s refusal to consider her for the position was not due simply to her lack of qualification but her sex as well.

While the evidence reveals that Mr. Kennedy, Federal’s Vice-President, Secretary and General Counsel, had the ultimate responsibility for filling the job in question, Varsho had the task of making recommendations. He did not recommend Gillin, and Kennedy only interviewed the one applicant, Sweezey, who was hired. In fact, Varsho testified that he “didn’t consider her for the job.” Varsho’s role here was crucial and his testimony indicates that although he did not believe Gillin to be qualified for the post, in deciding not to consider her, he was unquestionably also motivated by the fact that she was a female. See Robinson v. Lorillard Corp., 444 F.2d 791, 797 (4th Cir. 1971), petition for cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971) and 404 U.S. 1007, 92 S.Ct. 651, 30 L.Ed.2d 655 (1972).

He advised Gillin when she expressed her interest in the position that it was not suited to a woman and was more suitable to a man. He indicated to the EEOC investigator that he would have placed the job newspaper advertisement in a column specifically directed to males, had such been available. On trial while he conceded that a woman might handle the job under special circumstances, he adhered to the view that the traffic manager’s position was a “man’s” post. He stated that “ [i]t would be an extreme case that a woman could ever take on a truck fleet operation and do it properly.” He further testified:

Q. So you are satisfied that Miss Gillin’s femininity hurt her and also her qualifications weren’t there, right ?

A. Correct.

Q. All right. And that had her qualifications been there her femininity still would have hurt her?

A. Yes, it might have.

Whether or not Varsho’s position be characterized as Victorian or male chauvinism is not germane. See Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 236 (5th Cir. 1969). The fact is that she was not treated on an equal footing with male applicants. In fact two of her male subordinates were given the interview by Varsho which was denied Gillin.

Equality of footing is established only if employees otherwise entitled to the position, whether male or female, are excluded only upon a showing of individual incapacity.
Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1225 (9th Cir. 1971) (emphasis added).

While the ultimate prize was won by the male who had superior qualifications, this in our view does not purge Federal of its prior discriminatory act of refusing to consider her at all not solely because of lack of qualification but because she was a woman. While Gillin did not have all of the qualifications for the position, she fell clearly within the group entitled to initial consideration especially in a company which purported to have a policy of promoting from within. Having had some familiarity with and experience in most if not all the facets of the position, the refusal of Varsho to consider her because she was a woman, is clearly a mischief which the statute was designed to prevent. We hold therefore that the court below was in error in not considering this point and in assuming that Sweezey’s superior qualifications presumably cured the previous act of discrimination. In sum we find no wrong in hiring Sweezey instead of Gillin but we hold that Federal did transgress by failing to consider Gillin not simply because she was not qualified but also because she was a woman.

We find it necessary to remand to the district court because we have no basis at all on the record before us, to determine what damages, if any, should be awarded to the appellant. The complaint here makes no special request for equitable relief and in view of our discussion of the law there is no justification for any injunctive remedy. However the plaintiff has sought damages in the sum of $250,000 without any allocation among the various statutory violations alleged. The court below had no occasion to reach the damage question finding no liability. The issue was not argued or briefed in this court. While it is difficult to determine the basis for compensatory damages here (see King v. Laborers Local 818, 443 F.2d 273, 278-279 (6th Cir. 1971); Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1259-69 (1971)), we think that appellant should be afforded the opportunity to establish her theory of damages in the trial court.

      . Title VII of the Civil Rights Act of 1964 was recently amended by the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103.

      . The EEOC conducted two investigations into Gillin’s charges. The first did not disclose any impropriety in Federal’s actions. After the second, however, the EEOC rendered a decision that “[Reasonable cause exists to believe that [Federal] violated sec. 703(a)(1) and sec. 704(a) of the Civil Rights Act of 1964 as alleged.” EEOC conciliation efforts failed and this suit was commenced.

      . Gillin amended her complaint on May 23, 1966 and again on July 26, 1966 adding the further charges that Federal, in retaliation for the filing of the original complaint, demoted and ultimately fired her.

      . The report in question contains the material gathered in both EEOC investigations :
      (a) pages 8-15, the field report of investigator Ring who concluded that violations occurred, (b) pages 16-176, the underlying material accumulated by Mr. Ring to support his conclusion, (c) pages 177-188, the field report of in-investigator Ilolt who found that no violations existed, and (d) pages 189-260, the underlying material compiled by investigator Holt to support his determination.
      Gillin v. Federal Paper Board Co., 52 F.R.D. 383, 385 (D.Conn.1970).

      . 42 U.S.C. § 2000e-2(a) (1970) provides: It shall be an unlawful employment practice for an employer—
      (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
      (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

      . 42 U.S.C. § 2000e-3(a) (1970) provides:
      It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this sub-chapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.

      . See note 5 supra.