HARRY W. EICHENLAUB, PETITIONER V. DAVID ALAN YURKY, ET AL.

   No. 85-236

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the United States as amicus curiae supporting petitioner

            TABLE OF CONTENTS
   Questions Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument
      A pretrial detainee has no automatic right to a hearing
      before an independent tribunal in connection with an
      inter-facility transfer for security reasons
   Conclusion

                          QUESTION PRESENTED

   Whether a pretrial detainee has an automatic right under the Due
Process Clause to a hearing before an independent tribunal in
connection with his transfer from one custodial facility to another.

                     INTEREST OF THE UNITED STATES

   The issue in this case is whether a pretrial detainee has an
automatic right under the Due Process Clause to a hearing before an
independent tribunal in connection with his transfer from one
custodial facility to another.  The Court's resolution of this issue
may affect the rights of federal pretrial detainees, of whom several
hundred are transferred each year from one facility to another (see
pages 11-12 note 10, infra).  /1/

                               STATEMENT

   1. On December 23, 1981, respondent was arrested in Pennsylvania on
state charges of criminal conspiracy and criminal complicity.  He was
placed the next day in the Clinton County Jail (CCJ) in Lock Haven,
Pennsylvania, a minimum security institution.  Pet. App. 4a;  J.A. 50.
 At that time, the warden, petitioner Harry Eichenlaub, /2/ was
informed by state police that respondent was connected with the
Palestine Liberation Organization and had knowledge of the martial
arts.  On January 8, 1982, petitioner was also informed by state
police that respondent had a passport to Lebanon, that the court
planned to increase his bail from $100,000 to $300,000 because he had
been charged with two additional robbery counts, and that federal bank
robbery charges would be filed against him on January 10.  /3/ Pet.
App. 4a-5a;  J.A. 42, 54-55, 78.

   On January 8, 1982, petitioner obtained oral approval from the
Deputy Commissioner of the Pennsylvania Bureau of Correction and from
the Clinton County President Judge for emergency transfer of
respondent from CCJ to the State Correctional Institution at
Huntingdon (SCIH), /4/ on the ground that respondent posed a security
risk if he remained at CCJ (Pet. App. 5a).  /5/ That day, respondent
was transferred to SCIH, was informed in writing that he was
considered a security risk, and was placed in administrative custody
pending review by the Program Review Committee of the prison (id. at
5a-6a, 4b).

   On January 11, 1982, the Program Review Committee, in accordance
with state prison policy, /6/ interviewed respondent and, based on the
documents prepared in connection with his inter-facility transfer,
determined that he should remain in administrative custody because he
was a security risk (Pet. App. 6a-7a, 5b).  He remained in
administrative custody for 30 days before being placed in the general
prison population (id. at 18a, 5b;  see J.A. 119a, inserted between
J.A. 120 and J.A. 121).  His state trial was held on May 18-19, 1982
(Pet. App. 5b;  J.A. 47-48).  During the period of administrative
custody, respondent was permitted to make two telephone calls, and
during his period of pretrial incarceration he was able to communicate
freely with his attorneys by mail and they were free to visit him at
SCIH (Pet. App. 17a-18a).

   2. On May 20, 1982, respondent filed a pro se civil action pursuant
to 42 U.S.C. 1983 in the United States District Court for the Middle
District of Pennsylvania, alleging that petitioner, the warden and
deputy warden of SCIH, and others had violated several of his federal
constitutional rights (J.A. 22-36).  In particular, he claimed that
his transfer from CCJ to SCIH violated procedural due process;  that
his assignment to administrative custody violated his procedural and
substantive due process rights;  and that his detention at SCIH denied
him his Sixth Amendment right to effective assistance of counsel (J.A.
22-36;  Pet. App. 5b-6b).  He sought compensatory and punitive damages
from the offending officials and an "(i)njunction against future
transfer of pre-trial detainees to (SCIH)" (J.A. 26-27).

   The district court granted petitioner's motion for summary
judgment.  The court rejected respondent's claim that he was denied
procedural due process by the inter-facility transfer because the
Program Review Committee told him only that he was transferred as a
security risk without informing him of the underlying reasons for that
determination (Pet. App. 6b-10b).  The court found that the notice
provided met the requirements of Cobb v. Aytch, 643 F.2d 946, 961 (3d
Cir. 1981) (en banc), on which respondent had relied (Pet. App.
9b-10b).  The court found, moreover, that in any event respondent's
inter-facility transfer did not deprive him of any federally protected
right (id. at 11b-12b).  In this regard, the court found that
petitioner had a rational basis for the emergency transfer of
respondent to the state facility and that petitioner had followed
well-defined procedures in accomplishing that end.  /7/ The court also
found that the transfer did not deny respondent the right to effective
assistance of counsel, because he was able to communicate with his
attorney while at SCIH (id. at 18b-19b).

   The district court also rejected respondent's challenges to his
placement in administrative custody (Pet. App. 12b-18b).  The court
found that, although respondent did, under the principles of Hewitt v.
Helms, 459 U.S. 460 (1983), acquire a liberty interest in remaining in
the general prison population, he received sufficient notice and
hearing to meet procedural due process requirements (Pet. App.
12b-15b).  The court also found that respondent's assignment to
administrative custody did not violate any substantive due process
right because it was consistent with Pennsylvania regulations
concerning the use of administrative custody pending determination of
an appropriate security classification (id. at 15b-18b).

   3. The court of appeals vacated the district court's decision in
part and remanded (Pet. App. 1a-20a).  It held that, under Cobb v.
Aytch, supra, a pretrial detainee's transfer from a county jail to a
state prison implicates a federal constitutional liberty interest and
that respondent was entitled to, but had not received, a prompt
post-transfer hearing before an independent tribunal after his
emergency transfer (Pet. App. 8a-10a).  The wrongful denial, the court
stated, was petitioner's responsibility (id. at 10a-13a).  However,
the court of appeals affirmed the district court's judgment that
respondent had not been denied effective assistance of counsel (id. at
17a-18a).

   The court of appeals also found that respondent had a protected
liberty interest under Hewett v. Helms, supra, in remaining in the
general prison population and that the district court had erred in
finding that respondent had sufficient notice of the charges that
resulted in his placement in administrative custody and sufficient
opportunity to defend against them (Pet. App. 13a-17a).  /8/

                          SUMMARY OF ARGUMENT

   1. A defendant who is properly detained pending trial (see Gerstein
v. Pugh, 420 U.S. 103 (1975)) does not have any general liberty
interest in not being transferred from one detention facility to
another.  Just as a convicted inmate has no protected expectation that
he will be incarcerated in (or will remain in) any particular prison,
a properly detained criminal defendant has no protected expectation
that he will be sent to any particular facility in the first instance,
nor does the fact that he was initially assigned to one facility
create a protected expectation that he will remain here.  Cf. Olim v.
Wakinekona, 461 U.S. 238 (1983);  Montanye v. Haymes, 427 U.S. 236
(1976);  Meachum v. Fano, 427 U.S. 215 (1976).  Prison authorities
have historically been free to house both convicted defendants and
pretrial detainees in any facility permitted by applicable statutes
and regulations, and the courts have traditionally declined to
interfere with custodial authorities in their exercise of discretion
in such matters, particularly as such discretion relates to security.
Cf. Block v. Rutherford, No. 83-317 (July 3, 1984);  Bell v. Wolfish,
441 U.S. 520, 540, 546-547 (1979).

   2. Pretrial detainees do, of course, have specific rights that may
not be violated by a transfer.  Pretrial detainees may not be
"punished" and must be afforded the rights, particularly as guaranteed
by the Sixth Amendment, necessary to ensure a fair trial.  But these
rights do not generate a general liberty interest in where defendant
is detained and do not require a transfer hearing before an
independent tribunal in every instance.  Whether a defendant is being
punished or has been denied his right to effective assistance of
counsel or a speedy trial must be determined on the facts of each
case.  See, e.g., United States v. Loud Hawk, No. 84-1361 (Jan. 21,
1986) (speedy trial);  Block v. Rutherford, supra (punishment);
United States v. Cronic, 466 U.S. 648 (1984) (effective assistance of
counsel);  Bell v. Wolfish, supra (punishment).  Such determinations
may be made administratively, upon petition for writ of habeas corpus,
in a separate suit, or at or after trial, as appropriate.  There is no
reason to suppose, and it would be greatly disruptive to assume, that
all transfers of detainees so threaten one or more of these rights as
to require a hearing before an independent tribunal.  Cf. United
States v. Goodwin, 457 U.S. 368, 380-384 (1982);  Leary v. United
States, 395 U.S. 6 (1969).

   Here, respondent failed to demonstrate a violation of any
substantive right.  The lower courts did not find, and there is no
reason to suppose, that his transfer effected punishment or was not
for a legitimate -- here, a security -- purpose.  There is no
allegation that the conditions of confinement were improper or that
the right to a speedy trial was infringed.  Finally, the district
court and court of appeals both found that respondent was not denied
the effective assistance of counsel.

                               ARGUMENT

 A PRETRIAL DETAINEE HAS NO AUTOMATIC RIGHT TO A HEARING BEFORE AN
INDEPENDENT TRIBUNAL IN CONNECTION WITH AN INTER-FACILITY TRANSFER FOR
SECURITY REASONS

   1. The court of appeals ruled that respondent was entitled to a
hearing before an independent tribunal because he had a liberty
interest in not being transferred from one facility to another.  This,
we submit, was error:  there is no general liberty interest in being
detained in, or remaining in, a particular facility.  A liberty
interest protected by the Due Process Clause may be derived from the
Clause itself or from state law.  Hewitt v. Helms, 459 U.S. 460, 466
(1983);  Meachum v. Fano, 427 U.S. 215, 223-227 (1976).  But the
decision below is not based on any Pennsylvania state law liberty
interest in being detained in a particular facility.  /9/ And just as
a convicted defendant has no federal constitutional right to be
imprisoned in a particular facility or not to be transferred to
another facility -- see, e.g., Olim v. Wakinekona, 461 U.S. 238
(1983);  Montanye v. Haymes, 427 U.S. 236 (1976);  Meachum v. Fano,
supra;  Ex parte Karstendick, 93 U.S. 396, 400, 404 (1876);  cf. Howe
v. Smith, 452 U.S. 473 (1981) -- so a pretrial detainee should not be
deemed to have a general right to be placed, or to remain, in a
particular facility.

   A judicial officer having found probable cause that a defendant
committed a crime, the state may detain him.  See Gerstein v. Pugh,
420 U.S. 103, 114, 116-117 n.18, 117 n.19, 119 (1975).  In this case,
the district court found that respondent was validly detained pending
his trial (Pet. App. 9b), and the court of appeals did not disturb
this finding.  Accordingly, respondent's initial confinement at CCJ
was valid.

   This Court has repeatedly held that prison officials holding
convicted prisoners and pretrial detainees have broad discretion to
take security measures without judicial review.  "(T)o hold * * * that
any substantial deprivation imposed by prison authorities triggers the
procedural protections of the Due Process Clause would subject to
judicial review a wide spectrum of discretionary actions that
traditionally have been the business of prison administrators rather
than of the federal courts." Meachum v. Fano, 427 U.S. at 225
(convicted prisoners).  "(A) prison's internal security is peculiarly
a matter normally left to the discretion of prison administrators."
Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981) (convicted
prisoners).  "(L)imited restriction(s) (are) * * * a rational response
by prison officials to * * * obvious security problem(s)" (Bell v.
Wolfish, 441 U.S. at 550) (pretrial detainees), and have been
consistently upheld for convicted and unconvicted inmates alike in the
face of a variety of constitutional claims.  The Court has "repeatedly
said both that prison officials have broad administrative and
discretionary authority over the institutions they manage and that
lawfully incarcerated persons retain only a narrow range of protected
liberty interests." Hewitt v. Helms, 459 U.S. at 467.  See also Olim
v. Wakinekona, 461 U.S. at 245;  Procunier v. Martinez, 416 U.S. 396,
405 (1974).

   This Court has recognized that pretrial detainees may post security
problems equal to those posed by convicted prisoners and that dealing
with these problems is a matter over which prison officials have broad
discretion.  Block v. Rutherford, No. 83-317 (July 3, 1984);  Bell v.
Wolfish, 441 U.S. 520, 540, 546-547 (1979).  In Wolfish, the Court
stated, "There is no basis for concluding that pretrial detainees pose
any lesser security risk than convicted inmates.  Indeed, it may be
that in certain circumstances they present a greater risk to jail
security and order." 441 U.S. at 546 n.28.  The security concerns to
which this Court has referred in holding that prison officials must
have broad discretion in maintaining safety and order in prisons (see,
e.g., Hewitt v. Helms, 459 U.S. at 467-468, 472-473) are, therefore,
applicable to pretrial detainees as well.

   Since respondent had been validly detained pending trial, and since
he plainly had no inherent constitutional right to be detained in any
particular institution in the first instance, it follows that his
initial detainment at one facility could not give him a protected
general liberty interest in remaining in a facility that the
authorities believed was not secure enough for him.  On the contrary,
the custodial officials had an obligation to the other prisoners at
the jail, to its guards, and to the general public to exercise their
discretion to protect others against respondent's potential
dangerousness.  See, e.g., Martin v. White, 742 F.2d 469 (8th Cir.
1984).  Other courts of appeals have approved transfers of pretrial
detainees without hearings where the transfers were for legitimate
government reasons.  See, e.g., Turner v. Stumbo, 701 F.2d 567,
570-572 (6th Cir. 1983);  Cummings v. Roberts, 628 F.2d 1065, 1069
(8th Cir. 1980);  Feeley v. Sampson, 570 F.2d 364, 376-377 (1st Cir.
1978).

   2. Pretrial detainees do, of course, have specific rights that may
not be violated by a transfer.  Pretrial detainees may not be
"punished" and must be afforded the rights, particularly as guaranteed
by the Sixth Amendment, necessary to ensure a fair trial.  But any
alleged violation of a specific right can be adjudicated at trial or
in another proceeding addressed to the specific claim.  There is no
need for automatic review by an independent tribunal of every
inter-facility transfer on the speculation that a specific right may
be violated.  /10/

   The primary constitutional difference between the conditions under
which pretrial detainees and convicted prisoners may be confined is
that a pretrial detainee may not be detained for the purpose of
punishment.  See Block v. Rutherford, slip op. 7;  Schall v. Martin,
467 U.S. 253, 269 (1984);  City of Revere v. Massachusetts General
Hospital, 463 U.S. 239, 244 (1983);  Bell v. Wolfish, 441 U.S. at 535
& n.16 (1979);  Ingraham v. Wright, 430 U.S. 651, 671-672 n.40 (1977).
 He may, however, be detained for the purpose of securing his
appearance in court, protecting the judicial process against
obstruction, and protecting the public against further dangerous
criminal activity.  See, e.g., 18 U.S.C. (Supp. II) 3142(f);  Schall
v. Martin, 467 U.S. at 264-274;  Bell v. Wolfish, 441 U.S. at 533-534,
537, 539.  As this Court explained in Bell v. Wolfish, 441 U.S. at 530
(citation and footnote omitted):

         "(I)f a particular condition or restriction of pretrial
      detention is reasonably related to a legitimate governmental
      objective, it does not, without more, amount to "punishment."
      Conversely, if a restriction or condition is not reasonably
      related to a legitimate goal -- if it is arbitrary or
      purposeless -- a court permissibly may infer that the purpose of
      the governmental action is punishment that may not
      constitutionally be inflicted upon detainees qua detainees.

   In addition, a pretrial detainee is, like anyone charged with a
crime, entitled under the Sixth Amendment to reasonable access to
counsel in order to prepare his defense (see Maine v. Moulton, No.
84-786 (Dec. 10, 1985), slip op. 8-10;  Brewer v. Williams, 430 U.S.
387, 398-399 (1977);  Powell v. Alabama, 287 U.S. 45 (1932)) and to a
speedy trial (see United States v. Loud Hawk, No. 84-1361 (Jan 21,
1986), slip op. 7-8;  United States v. MacDonald, 456 U.S. 1, 8
(1982);  United States v. Marion, 404 U.S. 307, 320 (1971)).

   It is possible, of course, that in a particular instance the
transfer of a pretrial detainee will effect a violation of a specific
right -- will punish him, delay his trial, or deny him effective
assistance of counsel.  But no specific right of respondent was
violated here, and the hearing itself should not have been made a
matter of substantive right.

   There is no reason to presume that an inter-facility transfer will
have more than a de minimis effect on the detainee's conditions of
confinement or that it will be made for other than legitimate (often
security or overcrowding) reasons.  See Block v. Rutherford, slip op.
7;  Bell v. Wolfish, 441 U.S. at 537-540 & n.21, 542-543 & n.25;  cf.
Ingraham v. Wright, 430 U.S. at 674.  An automatic hearing is,
moreover, unnecessary to protect the rights of a particular detainee
who believes he is being punished.  /11/

   Similarly, the courts can provide remedies for interference with
the right to counsel and the right to a speedy trial wherever actual
interference with those rights has occurred, but should not intervene
in broad theoretical anticipation of such interference.  See, e.g.,
Nix v. Whiteside, No. 84-1321 (Feb. 26, 1986) (effective assistance of
counsel);  United States v. Loud Hawk, supra (speedy trial);  Block v.
Rutherford, supra (punishment);  Strickland v. Washington, 466 U.S.
668, 690 (1984) (effective assistance of counsel);  United States v.
Cronic, 466 U.S. 648, 657-662 (1984) (effective assistance of
counsel);  Barker v. Wingo, 407 U.S. 514 (1972) (speedy trial);  Bell
v. Wolfish, supra (punishment).  See also United States v. Colombo,
777 F.2d 96, 100-101 (2d Cir. 1985).  There is no reason to require a
hearing in connection with every inter-facility transfer in
anticipation of a wrong that has not been alleged, much less shown.
Cf. United States v. Goodwin, 457 U.S. 368, 380-384 (1982);  Leary v.
United States, 395 U.S. 6 (1969).  See also Mackey v. Montrym, 443
U.S. 1, 14 (1979) (citation omitted) (the procedures required by due
process "must be shaped by 'the risk of error inherent in the
truthfinding process as applied to the generality of cases' rather
than the 'rare exceptions'");  Matthews v. Eldridge, 424 U.S. 319, 344
(1976) (same).  The rights of pretrial detainees can be protected on a
case-by-case basis.

   Here there is no evidence that the purpose of respondent's transfer
was punitive or was not the asserted, legitimate government purpose of
prison security.  /12/ Respondent did not allege that his transfer
denied him the right to a speedy trial.  Although he claimed below
that the transfer resulted in the deprivation of his Sixth Amendment
right to effective assistance of counsel, both the district court and
the court of appeals rejected the claim and he did not cross-petition
for certiorari on the issue here.  /13/ Thus, "(t)he predicate for
invoking the protection of the Fourteenth Amendment * * * is totally
nonexistent in this case." Meachum v. Fano, 427 U.S. at 227.  Without
this predicate, respondent's due process claim cannot stand.  "Process
is not an end in itself.  Its constitutional purpose is to protect a
substantive interest to which the individual has a legitimate claim of
entitlement." Olim v. Wakinekona, 461 U.S. at 250 (citation omitted).
Here, respondent has no legitimate claim of entitlement to protect a
substantive interest, and hence no claim that he was denied due
process.

                              CONCLUSION

   For the foregoing reasons, the judgment of the court of appeals
should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   LOUIS R. COHEN

      Deputy Solicitor General

   ROGER CLEGG

      Assistant to the Solicitor General

   KAREN SKRIVSETH

      Attorney

   MARCH 1986

   /1/ The court of appeals' opinion states more than once that this
transfer was from a county jail to a state prison (Pet. App. 8a-13a);
respondent's interrogatories stress this aspect of the transfer as
well (J.A. 55-56, 62-63).  It is not clear whether the court meant to
find a protected liberty interest requiring a hearing in connection
with all transfers of pretrial detainees or only in connection with
transfers to institutions with a higher level of security.  We believe
either ruling would be error.

   /2/ Eichenlaub died after the petition was filed with this Court.
Insofar as he was a party in his official capacity, substitution of
his successor is automatic.  See Sup. Ct. R. 40.3.

   /3/ Federal charges were never in fact filed.  Respondent was
convicted of the state charges on May 19, 1982, and is currently
serving his prison sentence at the State Correctional Institution at
Huntingdon, Pennsylvania (J.A. 47-48).

   /4/ Huntingdon is about 60 miles from Lock Haven (Pet. 12).

   /5/ An August 10, 1981, memorandum from the Commissioner of the
Pennsylvania Bureau of Correction to the supervisors of county prisons
and jails (J.A. 120-131) states that county prisons and jails may
request transfer of an inmate to a Bureau of Correction facility for
"reasons of overcrowding, security, medical purposes, or other
existing conditions when the prison cannot furnish proper and
sufficient accommodations for the care, custody, control, and safety
of the inmates" (J.A. 120-121).  A pretrial detainee is entitled under
state law to notice and to a hearing if he does not consent to the
transfer, but the hearing may be held by the prison's Program Review
Committee after an emergency transfer (J.A. 122, 124).

   /6/ See August 10, 1981, memorandum (page 3 note 5, supra;  J.A.
122, 124).

   /7/ The court also dismissed this claim against the warden and
deputy warden of SCIH, finding that they had no authority to bar
respondent's transfer and so could not be sued under 42 U.S.C. 1983
with regard to that transfer (Pet. App. 11b-12b).

   The question whether respondent was entitled to a hearing before a
tribunal independent of the prison system rather than before the
Program Review Committee was not addressed by the district court.

   /8/ No further review has been sought on the administrative custody
issue, which is now on remand to the district court.

   The court of appeals also remanded "to the District Court for its
determination of whether to grant (Respondent's) Motion for Partial
Summary Judgment and/or whether to hold a trial on any of the issues
raised in the pleadings, such as issues of liability, qualified
immunity, and damages" (Pet. App. 19a-20a).

   /9/ The Third Circuit stated in Cobb v. Aytch, 643 F.2d 946,
953-957 (1981) (en banc), that in Pennsylvania a convicted prisoner
has no state-created liberty interest in remaining in the same
facility;  the court in that case did not disturb the trial judge's
finding that pretrial detainees had no such state law interest either.
 In the present case, it is unclear whether the court of appeals found
such a state law right (see Pet. App. 9a n.1), but the court plainly
did not rely on such an interest.  Cf. Olim v. Wakinekona, 461 U.S.
238, 244 n.5 (1983).

   /10/ Any requirement that a hearing be held by an independent
tribunal in connection with every transfer of a pretrial detainee
would have a substantial impact on federal, state, and local custodial
systems and on the courts.  According to the Bureau of Prisons, in
fiscal year 1984, 229 unsentenced (pretrial and posttrial) detainees
were transferred between federal facilities a total of 298 times, and
in fiscal year 1985, 330 such detainees were transferred 430 times.
In the federal system, moreover, pretrial detainees historically were
housed primarily in local jail facilities while awaiting trial (U.S.
Dep't of Justice, Federal Prison System Program Statement No. 7331.2,
Section 1 note (Nov. 10, 1980);  U.S. Dep't of Justice, U.S. Marshals
Manual Section 8.12-1(b) (Sept. 1983));  today, more than half of
federal pretrial detainees are still housed in state and local
facilities under contract with the United States Marshals Service.
Figures on the number of transfers involving federal prisoners in
state and local facilities are unavailable, but these transfers occur
regularly (for a variety of purposes) and number substantially more
than the intrafederal transfers.  The Marshals Service has no
provision for notice and hearing regarding transfer of a pretrial
detainee within the institution or to another institution;  the Bureau
of Prisons provides for hearing only in certain instances (none
common), such as when a pretrial detainee is charged with a violation
of institution rules (28 C.F.R. 551.116).

   /11/ The pretrial detainee faced in a particular case with the
denial of a constitutional right will not be without recourse.  He may
invoke administrative remedies, file a motion for a pretrial order
from the trial judge, seek a writ of habeas corpus, or file a separate
action.  See Preiser v. Rodriguez, 411 U.S. 475 (1973);  cf. 18 U.S.C.
3164(c);  United States v. Accetturo, 783 F.2d 382 (3d Cir. 1986);
United States v. Colombo, 777 F.2d 96 (2d Cir. 1985).

   /12/ See, e.g., Pet. App. 11b.  Respondent asserted in his
complaint (J.A. 31, 32, 35-36) that the transfer "punished" him
without due process, but he has apparently never elaborated on this
assertion.

   /13/ The court of appeals relied on its earlier decision in Cobb v.
Aytch, 643 F.2d 946 (3d Cir. 1981) (en banc), in holding that
respondent had been denied due process.  In Cobb, however, the court
found actual violations of the Sixth Amendment right to counsel, an
allegation explicitly rejected by both the district court and the
court of appeals in this case.  (The court in Cobb did, however, grant
broad injunctive relief in the class action there.)