(dissenting):
Seldom, in a case of such importance, has so little been decided after so much *807time and the expenditure of so much effort by counsel and judges alike. With neither hesitation nor reluctance I dissent from a decision that is, without any question in my view, not only unwarranted in law or authority, but an abnegation of judicial duty. This appeal which was “expedited” by order of this court and was argued on July 19, 1973, ■more than six months ago, is not here being decided, since the majority’s “decision” decides nothing at all. After all of this time, after careful briefing and able argument, the case is sent back to the district court to “flesh out the record,” from which, inevitably, it will rise once again with our knowing no more about the legal issues than we do now. I do not believe that the case will simply disappear, as the majority apparently hopes. I believe we have a duty to decide it, one which the majority abjures.
It goes almost without saying that the majority’s opinion fails to reach the merits of the case: whether inmates involved in the Attica riot, which included “except for Indian massacres . the bloodiest one-day encounter between Americans since the Civil War,”1 would be denied due process by having to undergo disciplinary hearings before an officer of the prison unprotected by counsel, unable to call witnesses in their behalf, and unable to cross-examine or confront the witnesses against them — hearings in which their only allowed defense is to explain their own actions in their own words, with the result that to conduct that defense they may be forced to incriminate themselves. And between the majority opinion today and the intricacies of three-judge court procedure,2 this will be the second time that both the State and the inmate plaintiffs will have been denied a ruling on the merits. In Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973) (Nieves I), a wholly different panel was faced with the same claims presented to this panel. The plaintiffs and their class of prison inmates,3 who are subject to prison disciplinary proceedings as well as criminal prosecution, there were seeking an injunction against the enforcement of certain state regulations governing disciplinary hearings. This court, while not reaching the merits in its determination that a three-judge court had to be convened, stated unequivocally that the inmates’ claim of “unconstitutionality of the regulations as applied where both disciplinary and criminal proceedings against an inmate are in the offing — unquestionably raises grave constitutional issues.” Nieves I, 477 F.2d at 1113 (emphasis added) (footnote omitted). The district court on remand granted a motion to withdraw the request for injunctive relief, thereby making a three-judge court unnecessary,4 and entered a declaratory judgment dated May 23, 1973. Both parties then appealed from the order below, so that today we would be free to reach the inmates’ claims on the merits were it not for the majority’s present non-decision that these “unquestionably *808. . . grave constitutional issues” are, after all, only “hypothetical.” 5
These “grave constitutional issues” are only “hypothetical,” according to the majority, because “it is not known at this time what, if any, charges may be leveled against these particular inmates.” Such a determination flies in the face of the decision of this court in Nieves I, which did not find the issues hypothetical at all, although it had fewer facts before it than the present panel, but rather found the issues so substantial as to require the convening of a three-judge court to rule on the merits. The majority here is now saying that the court in Nieves I was wrong and that it should have dismissed the claims as hypothetical, or at least have remanded the case to “flesh out the record.” The majority, without acknowledging that it is doing so, is in effect rejecting the law of the case and overruling Nieves I, an action normally requiring an en banc court.
But this unwarranted and unauthorized action is inexplicable on the basis of the facts before us, unless the majority has simply closed its eyes to those facts, or unless, after six months, the facts have merely been forgotten. For instance, it is stated that “what, if any, charges may be leveled against these particular inmates” is “not known at this time.”6 This is simply not true. As for the disciplinary charges, they are stated in the Amended Complaint and admitted by the State in its Answer.7 They are even summarized in footnote 3 of the majority opinion. The State further admits in its Answer that disciplinary hearings will be held against these inmates, except as stayed by the court order, and that certain disciplinary hearings have already been held against inmates because of activities during the *809riot. Thus, it is known what the disciplinary charges are against these plaintiffs, and those charges, while certainly not exhaustive of all possible charges, are representative of a gamut of charges so as to present questions of law common to the members of the class, as found by the district court and reiterated in Nieves I. As to criminal charges, plaintiffs Sumpter, Merkel and Ortiz have already been indicted in six separate indictments on 100 counts of criminal activity ranging from Promoting Prison Contraband to Assault and Kidnaping.8 Plaintiffs Nieves and Roberts have not yet been indicted. „ At least 57 other inmates and former inmates have been indicted on some 1,300 counts of criminal activity.9 Moreover, as to the named plaintiffs, their indictments were handed down before the district court’s declaratory judgment and even before this court’s decision in Nieves I, so that it can hardly be said that the district court’s declaratory judgment was “somewhat hypothetical.”
The majority states in its opinion: “Once the nature of the charges are [sic] known, the accused should be given all necessary protection.” As shown above, at least as to three of the named plaintiffs, the nature of both the disciplinary and criminal charges is known. And these plaintiffs’ charges are representative of those of their class.10 The majority, ignoring these facts, then says that the “protection can be best formulated by the District Court in light of the facts before it.” That is precisely what the district court has already done and what is presented to this court for revieiv. That protection is what is being vacated by the majority on no legal basis, but merely to remand the case to search for facts already before the majority. The majority acknowledges Judge Henderson’s “lengthy” opinion, which is lengthy because — even though I disagree with some of it — it analyzes the merits in light of the facts in some depth.
In Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), this court did not deny due process to prison inmates in disciplinary hearings, but rather stated that the process due would depend on the circumstances and factual setting. 442 F.2d at 196. See Nieves I, 477 F.2d at 1113. The majority, while citing both of these passages, notes that plaintiffs and the members of their class *810are subject to a wide variety of disciplinary charges, see majority opinion at note 3 swpra, and concludes that it would be “premature” to determine the process due before learning what each inmate is charged with and what the possible disciplinary penalties are.
What the majority totally misses, however, is that the factual setting here which calls for special attention is not the charge or penalty in the disciplinary hearing at all; rather it is that an inmate’s only means of defending himself from the disciplinary charge according to the challenged regulations is to explain in his own words, unaided by counsel, what happened. Ordinarily this might well suffice, and the regulations as generally applied are not challenged here. In this set of circumstances, however, where the inmate is already indicted for serious crimes (as are three of the named plaintiffs and more than 57 other inmates) arising out of, or where the grand jury is engaged in an investigation of, the same incidents furnishing the basis for disciplinary charges, the inmate is forced to choose between possibly incriminating himself in the criminal proceeding or presenting no defense at all in the disciplinary hearing. Thus, this case does not turn on what the particular disciplinary or criminal charge may be, but rather on the dual jeopardy involved where the State is proceeding with both disciplinary and criminal actions against inmates involved in the Attica disturbance.
The majority, unable to sweep all the way under the rug this grave constitutional issue noted by this court in Nieves I, by the court below, and by a number of other courts,11 avoids the question of what process is due in this situation by suggesting that somehow the question is not yet ripe because of a “temporary injunction” the State consented to on November 26, 1971 (hereinafter the “1971 stay”). The majority lifts a passage out of context from the hearing that day to discover, or, more accurately, to imagine an intent by the State not to hold disciplinary hearings against anyone until the special grand jury makes its final report, and additionally a willingness by the State to “consider further stays as to those members of the class who are . . . targets.” By rejecting the record as presented to this court, the majority takes what it euphemistically calls “the cautious approach” of remanding the case to discover what the State’s intent was and what it is willing to consider now.12 Needless to say, this “cautious approach” will cost courts and counsel literally hundreds of extra hours to determine facts in respect to each inmate member of the class when in respect to representative members of the inmate class there are already sufficient facts before this panel to resolve the grave issues presented. One would suppose that, despite the majority, the merits will have to be passed upon by this court someday — perhaps sooner than later. But one must regret that in the busy Western District of New York the trial judges have to spend their time “fleshing out” an already sufficient record.
The intent of the State in consenting to the 1971 stay is clearly seen even in the language quoted by the majority once that language is viewed in context. On November 26, 1971, plaintiffs argued before the district court for a preliminary injunction against all disciplinary hearings arising out of the events at Attica. The State consented to such a temporary injunction except that it *811wished to be able to proceed with disciplinary hearings against any inmate cleared by the special grand jury, because such an inmate would not be subject to the possibility of self-incrimination. But it could not be known until the special grand jury had finished its work and made its report which inmates had been cleared and which indicted. Thus, the State consented to a temporary injunction pendente lite against all disciplinary hearings arising from events during the Attica disturbances, but if the special grand jury made its final report before the litigation ended, then the State would be free to proceed against anyone not indicted, and would discuss an extension of the temporary injunction pendente lite as to those indicted. The language quoted by the majority reflects this understanding as it is in the disjunctive, stating that the temporary injunction will last either until the special grand jury’s report or until the action’s determination. If there had been any doubt, which there was not until the majority’s invention of it, the district court’s order should have eliminated it:
Such stay, by agreement of the parties, is to continue either until the Special Grand Jury has made its report or until the merits of this action have been determined, whichever event occurs first.
Nieves v. Oswald, Civil 1971-526 (W.D.N.Y. Mar. 8, 1972) (emphasis added). Thus, it is absolutely certain that this 1971 stay can provide no basis for avoiding decision here on the clearly fabricated notion that the 1971 stay prevents the issue from being ripe until the grand jury makes its report — a claim never suggested by the State.
Moreover, even were it otherwise— and this makes the majority opinion border on the incredible — the 1971 stay was supplanted by a written stipulation between the parties on May 23, 1973, which stated that disciplinary proceedings would be stayed only “pending the final outcome of this litigation.” 13 No mention is made of the special grand jury at all. This stipulation, pursuant to which the judgment appealed from was entered, is what governs this case. It is beyond belief to suggest as the majority does that the State, which entered into the stipulation for the express purpose of expediting the appeal on the merits,14 intended thereby to destroy the plaintiffs’ “present standing” and consequently lose an adjudication on the merits.
The majority, however, does not let mere logic, plain language, or the intent of the parties stand in the way of a determination to avoid the merits. Rather the majority suggests that it may be the position of the State that “it will consider further stays as to those members of the class who are existing or potential targets,”15 reasoning that such “further stays” would save the inmates from any immediate threat and that thus their claims are not ripe for determination. *812For the third time, it must be questioned why the majority does not itself ask the State what it will consider, rather than wasting counsel’s and judges’ time and resources on a needless remand. It may, moreover, be questioned by what right the majority can suggest to the State a means by which it might destroy the ripeness of plaintiffs’ claims. While it may not be beyond judicial propriety to make suggestions aimed at settlement, or perhaps in some cases to mediate a controversy, a court cannot take sides, suggesting means to one party that will enable that party to avoid a possible adverse judgment by destroying the court’s jurisdiction or the justiciability of a claim.
More importantly, however, the majority does not explain the relevance of what the State might “consider” in the future to the present ripeness of the issues or the “present standing” of the plaintiffs. The present ripeness or standing is determined by the present adverse controversy. The State has admitted its intent to proceed with the disciplinary hearings and has never suggested its willingness to do otherwise.16 In such a situation the plaintiffs are under an immediate threat but for the stay pending the outcome of the litigation. Such a stay no more negates the justiciability of their claims than a preliminary injunction makes the need for a permanent injunction moot.
I have tried to demonstrate that the majority’s nondecision today results in a senseless waste of judicial resources, not only of this court both in Nieves I and the present case, but also of the district court, which attempted to do what the majority here commands it to do once again — fashion the necessary protection for the inmates in light of the facts. The majority in vacating the reasoned protections already worked out by the district court — protections which, to be sure, I think somewhat insufficient —gives no legal basis for its action. Rather it claims ignorance of facts before it; it finds an ambiguity in the record where none exists; and its “notions of sound federalism” are unexplained. I also think they are nonexistent in law.
On the merits, I think that the teachings of Sostre itself, when viewed in the light of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U. S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) —cases neither referred to nor apparently considered by the majority —compel us to reach essentially the results already reached in First Circuit, Seventh Circuit, Eighth Circuit and a host of recent district court cases simply noted here.17 The challenged New York regulations fall short of providing minimal due process to inmates threatened simultaneously with criminal proceedings and disciplinary hearings. It would be neither novel nor unwarranted for this court to specify, for the benefit of all parties concerned, as the court below already has done, in what ways the State’s regulations are deficient. Nor *813would such a decision by this court entail writing a code of prison regulations for the State of New York any more than Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), entailed writing a code of administrative law regulations for that state. But to the extent that New York’s regulations are deficient in providing prisoners in the situation of those at bar with minimal due process, this court should not flinch from its duty to declare them so with the attendant consequences.
Accordingly, with some dismay, I dissent.
. New York State Special Commission on Attica Official Report, xi (1972).
. B. g., Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973), petition for cert. filed, 41 U.S.L.W. 3555 (U.S. Apr. 9, 1973) (No. 72-1359).
. The class actually designated by the district judge in the order of May 23, 1973, presently under appeal is comprised of those inmates who may he subject to disciplinary charges and criminal charges stemming from the same incident or incidents occurring at the Attica Correctional Facility during the period September 9-13, 1971.
. Rosario v. Rockefeller, 458 F.2d 649, 651-652 n. 2 (2d Cir. 1972), aff’d, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1, rehearing denied, 411 U.S. 959, 93 S.Ct. 1920, 36 L.Ed.2d 419 (1973); Carter v. McGinnis, 351 F.Supp. 787, 789 n. 2 (W.D.N.Y.1972). See also Thoms v. Heffernan, supra note 2. Here the State as in Thoms was cooperative by stipulating to a stay of disciplinary proceedings penning resolution of this appeal, so that plaintiffs would not have to seek a temporary injunction, with consequent three-judge court convention, and so that the merits could be reviewed by this court more expeditiously.
. It may be questioned by what authority the district court may retain jurisdiction over this case to “flesh out the record,” as directed by the majority, when the case has been found too “hypothetical” to decide. My understanding has always been that if a case is too conjectural or hypothetical to present a ease or controversy, then a federal court has no jurisdiction over it. See O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (U.S. Jan. 15, 1974); Roe v. Wade, 410 U.S. 113, 127-129, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). On the other hand, a federal court presented with a case or controversy is bound to decide it, not to postpone decision until such time as further facts may make a decision easier or, for that matter, even better. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821) (Marshall, C. J.) :
It is most true, that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction, if it should .... Questions may occur which we would gladly avoid; but we cannot avoid them.
The majority, however, without citation to any authority whatsoever ignores these fundamental principles of federal jurisprudence and strikes off on what can be described at best as a novel approach to federal abstention.
. If indeed the majority does not know this and other facts it deems important to a decision on the merits, it is not clear why it is necessary to remand the case to determine them. It is not beyond the power or propriety of this court itself to check the public records of the Wyoming County Supreme Court or to communicate with both the parties and to ask them to supply such information. This could be achieved either through written communications or reargument. Cf. Brown v. Board of Education, 344 U.S. 141, 73 S.Ct. 124, 97 L.Ed. 152 (1952). In either case, this self-same panel could then actually decide the case presented to it. By rejecting these possibilities, the majority demonstrates not its “notions of sound federalism” but its desire to avoid decision, with a consequent waste of judicial time and resources.
. Plaintiff Ortiz has been charged with having thrown objects out of his cell and striking officers with the objects as well as cursing officers. Plaintiff Roberts has been charged with providing other inmates with weapons and carrying a gas mask and tear gas canister. Plaintiff Merkel has been charged with assaulting two correctional officers and acting in concert with others. Plaintiff Sumpter has been charged with threatening two correctional officers. Plaintiff Nieves has been charged with carrying a note. The other named plaintiffs are no longer inmates.
Merkel — Indictment No. 11.
6 counts of 1st Degree Assault
2 counts of Illegal Possession of Weapons as a Felony
2 counts of Promoting Prison Contraband
Ortiz — Indictment No. 7.
6 counts of 2d Degree Kidnaping
6 counts of 1st Degree Unlawful Imprisonment
6 counts of 1st Degree Coercion
5 counts of 2d Degree Assault
—Indictment No. 8.
9 counts of 2d Degree Kidnaping
9 counts of 1st Degree Unlawful Imprisonment
9 counts of 1st Degree Coercion
—Indictment No. 17.
2 counts of 2d Degree Assault
—Indictment No. 31.
2 counts of 2d Degree Assault
Sumpter — Indictment No. 8.
9 counts of 2d Degree Kidnaping
9 counts of 1st Degree Unlawful Imprisonment
9 counts of 1st Degree Coercion
—Indictment No. 9.
3 counts of 2d Degree Kidnaping
3 counts of 1st Degree Unlawful Imprisonment
3 counts of 1st Degree Coercion
The foregoing is a matter of public record of which we may take judicial notice. Brown v. Board of Education, 344 U.S. 1, 3, 73 S.Ct. 1, 97 L.Ed. 3 (1952); Bryant v. Carleson, 444 F.2d 353, 357-358 (9th Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 344, 30 L.Ed.2d 287 (1971); Wagner v. Fawcett Publications, 307 F.2d 409 (7th Cir. 1962), cert. denied, 372 U.S. 909, 83 S.Ct. 723, 9 L.Ed.2d 718 (1963). Verification is a local telephone call (212-488-4044) away from the United States Courthouse at Foley Square.
. This was reported in T. Wicker, Attica Reopened, N.Y. Times, Jan. 4, 1974, at 29, col. 1 (city ed.), but if that report were doubted it too is subject to easy verification.
. See note 3 supra.
. Bee, e. g., Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. Nov. 16, 1973); Sands v. Wainwright, 357 F.Supp. 1062, 1092-1093 (M.D.Fla.1973); Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157, 1167 (E.D.Wis.1973); Carter v. McGinnis, 351 F.Supp. 787, 792-795 (W.D.N.Y.1972); Clutchette v. Procunier, 328 F.Supp. 767, 783 (N.D.Cal.1971).
. Again, it is hard to understand why the majority is so reluctant to ask the State the very questions it directs the district court to ask. Either by letter or reargument — the majority not having asked any of these questions in initial argument — the majority could answer its own questions and thereby “flesh out” its own record which it finds so lacking.
. The entire stipulation is as follows :
1. It is hereby stipulated that the attached judgment may he entered by the Court in lieu of the previously entered injunctive order, to obviate the need for a three-judge court and to expedite the appeal from such judgment, without prejudice to the parties’ respective challenges to the substance of such judgment.
2. It is further stipulated that the disciplinary proceedings described in paragraph 1 of the attached judgment shall be stayed pending the final outcome of this litigation, but plaintiffs shall not assert the delay in holding such hearings resulting from such stay, as a basis for challenging such hearings when they are in fact held.
. See id.
. As explained above, this language in context in 1971 referred to the State’s willingness to consider further stays pendente lite if the special grand jury made its reports before the action was finally determined. It was not referring to any willingness to extend stays beyond the pendency of the litigation. Indeed, the State’s Answer admits that disciplinary hearings “will be held” against plaintiffs, and there has been no suggestion or indication that the State is forbearing from proceeding for any reason other than the stay pending the determination of this action.
. See id.
. See, e. g., Gomes v. Travisono, 490 F.2d 1209 (1st Cir. Dec. 28, 1973); Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. Nov. 16, 1973); McDonnell v. Wolff, 483 F.2d 1059 (8th Cir.), cert. granted, 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108 (U.S. Jan. 21, 1974); United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973); Rhem v. Malcolm, 371 F.Supp. 594 (S.D.N.Y. Jan. 7, 1974); Wesson v. Moore, 365 F.Supp. 1262 (E.D.Va.1973); Collins v. Hancock, 354 F.Supp. 1253 (D.N.H.1973); Batchelder v. Geary, No. C-71-2017 RFP (N.D.Cal. Apr. 13, 1973); Sands v. Wainwright, 357 F.Supp. 1062 (M.D.Fla.1973); Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157 (E.D.Wis.1973); Carter v. McGinnis, 351 F.Supp. 787 (W.D.N.Y.1972); Rankin v. Wainwright, 351 F.Supp. 1306 (M.D.Fla.1972); Colligan v. United States, 349 F.Supp. 1233 (E.D.Mich.1972); Stewart v. Jozwiak, 346 F.Supp. 1062 (E.D.Wis.1972); Nelson v. Heyne, 355 F.Supp. 451 (N.D.Ind.1972); Brown v. Schubert, 347 F.Supp. 1232 (E.D.Wis.1972); United States ex rel. Neal v. Wolfe, 346 F.Supp. 569 (E.D.Pa.1972); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.l971); Bundy v. Cannon, 328 F.Supp. 165 (D.Md.1971); Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971).