author: SPRECHER; Circuit Judge. FAIRCHILD, Circuit Judge

text:
    FRIENDSHIP MEDICAL CENTER, LTD. and T.R.M. Howard, Plaintiffs-Appellants, v. The CHICAGO BOARD OF HEALTH et al., Defendants-Appellees.
    No. 74-1070.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 11, 1974.
    Decided Oct. 30, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1438.

      Julian B. Wilkins and Robert L. Graham, Chicago, 111., for plaintiffs-appellants.
    Richard L. Curry, Corp. Counsel and Ann Acker, Asst. Corp. Counsel, Chicago, 111., for defendants-appellees.
    Before SWYGERT, Chief Judge, and FAIRCHILD and SPRECHER, Circuit Judges.
   SPRECHER; Circuit Judge.

The question presented is whether the Chicago Board of Health may promulgate and enforce regulations which describe in substantial detail conditions, equipment, and procedures that medical facilities offering abortions must comply with, without regard to the trimester of pregnancy involved.

I

Friendship Medical Center, Ltd. is a medical corporation organized pursuant to the laws of Illinois, which owns and operates a medical facility that offers abortions to pregnant women. Plaintiff Howard is the president of Friendship, a member of its board of directors, a shareholder, as well as a physician who practices through the facilities which Friendship operates. The defendants are the Chicago Board of Health and the members of that Board.

Plaintiffs brought this suit for alleged violations of 42 U.S.C. § 1983 seeking an injunction against enforcement, and a declaration that the regulations promulgated by the defendant are unconstitutional. Plaintiffs-appellants appeal from the decision of the district court denying them standing to assert as one of the grounds for invalidating the regulations a woman’s fundamental right of privacy, and the order granting the defendant’s motion to dismiss for failure to state a claim upon which relief could be granted. Friendship Medical Center, Ltd. v. Chicago Board of Health, 367 F.Supp. 594, 607 (N.D.Ill.1973).

The plaintiffs urge on this appeal that: (a) they have standing to challenge the abortion regulations on the grounds that the regulations unconstitutionally restrict their patient’s rights to personal and marital privacy; (b) the abortion regulations are an invalid and overbroad enactment infringing unreasonably upon fundamental rights because of their failure to exclude the first trimester; and (c) they are invalid because of their stringent and sweeping requirements which are not legitimately related to recognized governmental objectives to protect maternal health.

The defendants contend that not only do the plaintiffs lack standing, but also that the Supreme Court’s recent abortion decisions do not proscribe attempts by state or local governments to impose safety regulations that are reasonably related to their interest in protecting the health of those seeking abortions.

On January 22, 1973 the United States Supreme Court rendered its landmark decisions on abortion. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Shortly thereafter in May of 1973 the defendants adopted Regulations for Abortion Services for the City of Chicago.

The regulations require that an abortion be performed by a licensed physician and in a facility that complies with its provisions. Each facility is required to keep records in regard to the admission and discharge of patients, medical histories, results of tests, social services offered and other patient progress notes. Chicago Board of Health Regulations on Abortion Services, section IV(a), [hereinafter cited as Abortion Regulations]. It must also prepare monthly reports which are to include the number of patients that requested, and were either given or denied abortions, and the name and address of patients who developed complications following the abortion and a description of such complications. Abortion Regulations, supra, section IV(b).

All equipment and supplies must be maintained in proper working order, and necessary solutions, drugs and medications must be available. There must be a knee or foot controlled sink immediately adjacent to the room where the abortion is performed, an elevator that can accommodate a stretcher if any abortion service is located above ground level, anesthesia and such other equipment as is necessary to treat for hemorrhage, shock, cardiac arrest, and other emergencies. Abortion Regulations, supra, sections VI, VIII, IX (c). Each abortion service is required to have facilities for registration, medical evaluation and examination, post-operative recovery and suitable furnishings and accommodations, including waiting and dressing rooms. Abortion Regulations, supra, sections IX, XII.

In addition every non-hospital abortion service must have a written affiliation agreement with a licensed Chicago hospital allowing the use of its laboratory facilities and providing for the treatment of its patients requiring emergency care. The abortion service must have immediately available organized transportation facilities capable of transporting patients to the affiliated hospital within fifteen minutes. Abortion Regulations, supra, sections 1(d), VII, X. The regulations also require that an abortion service be supervised by a physician who is either a qualified obstetrician or surgeon; that there be at least one registered professional nurse with post graduate experience in obstetric or gynecological nursing on duty at all times while the abortion service is in use and that there be a social service unit available to the patients of the service. Abortion Regulations, supra, sections XIII(b), XIV(b), XV.

Finally, the Chicago Board of Health requires that a complete medical history be obtained including not only a pelvic examination, but also the following laboratory tests on every patient: hemato-crit, Rh factor, complete urinalysis and blood grouping. Abortion Regulations, supra, section XVI(c). There is also required to be an interval of at least twenty-four hours between the initial examination and the termination of the pregnancy to permit review of all laboratory tests “and to permit and encourage thorough consideration and a firm decision by the patient regarding termination of pregnancy.” Abortion Regulations, supra, section XVI(e).

The regulations themselves provide for the closing of any abortion service that either fails to register or which, if it continued in operation would be in violation of any of the Board of Health’s regulations. Abortion Regulations, supra, section XIX. In addition certain of the named defendants, as well as other employees of the defendant Board have been given “full police powers” as well as the “right to arrest”- any individual that does not comply with the provisions of the health code. Municipal Code of Chicago, ch. 9, § 5.

II

The district court while allowing the plaintiffs to challenge the Abortion Regulations on substantive and procedural due process and equal protection grounds, refused to allow them to attack the regulations as violative of a woman’s right of privacy as delineated in Roe and Doe. Friendship Medical Center, supra at 600. In our view the district court viewed plaintiffs’ right to challenge the Board of Health’s regulations too narrowly.

The initial inquiry in determining if the plaintiffs have the requisite standing to maintain this action is whether they have alleged such a personal stake in the outcome of the controversy so as to assure that there exists “concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In the present case it is clear that both the individual and corporate plaintiff have a sufficient interest at stake to allow them to proceed with this action. Both plaintiffs allege that the regulations, which are aimed directly at them, restrict their rights to treat medical matters relating to abortions. This allegation can be fairly read to charge that the Abortion Regulations deprive Dr. Howard of his asserted right to offer abortions without substantial restrictions during the first trimester. In the instant case the defendants, pursuant to the Abortion Regulations, have the power to deny authorization to those seeking to operate an abortion facility as well as the power to order the closing of any facility that it deems not in compliance with its regulations. Surely, those subject to such deprivations through the use of governmental power have a sufficient interest to maintain this type of action. See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940).

The president of the board of health, the assistant to the president of the board of health, the secretary of the board of health, the commissioner of health, and all physicians, employes or inspectors who may be designated by the board of health shall have full police powers and shall have the right to arrest or cause to be arrested any person who violates any of the health provisions of this code.

In addition the defendants, pursuant to the Municipal Code of Chicago, have full police powers and the power to arrest. See note 6 supra. Whether proceedings brought under this section are characterized as quasicriminal, as the defendants asserted at oral argument, or criminal in nature, it is clear that they involve a deprivation of liberty. The plaintiffs in their action are the ones subject to this deprivation and accordingly have a requisite interest in attacking the validity of the challenged regulations.

The defendant takes the position that the Supreme Court’s decision in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), precludes the granting of standing to an individual who is merely threatened with prosecution, and that this is especially so where as in the instant case the plaintiffs have in fact complied with the challenged regulations and have received approval to operate their clinic from the Chicago Board of Health. We cannot agree that the threat of prosecution is so insufficient to deprive plaintiffs standing. While it is true that for the immediate present the plaintiffs are safe from any sort of prosecution because of their compliance with the Abortion Regulations, these regulations have a continuing effect. It is precisely this continuing restrictive effect placed on the plaintiffs by the regulations which is the basis of their complaint. In this case, unlike Poe, we are dealing with recently enacted ordinances that have potentially very real criminal sanctions. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), makes it very clear that physicians faced with criminal liability for the performance of an illegal abortion do have a sufficient interest to challenge the validity of the state’s law.

We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not he required to await and undergo a criminal prosecution as the sole means of seeking relief.

410 U.S. at 188, 93 S.Ct. at 745 (emphasis added).

Defendants contend, however, that despite the plaintiffs’ interest in challenging the regulation, they cannot assert as one of the grounds of invalidity that the regulations violate a woman’s right of privacy in deciding whether to abort a pregnancy. The district court relying on Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) agreed with this contention. In Tileston the Supreme Court held that a physician was without standing to assert the rights of his patients in an action to declare a state anti-birth control statute unconstitutional. The Court said:

The sole constitutional attack upon the statutes under the Fourteenth Amendment is confined to their deprivation of life — obviously not appellant’s but his patients’. There is no allegation or proof that appellant’s life is in danger. His patients are not parties to this proceeding and there is no basis on which we can say that he has standing to secure an adjudication of his patients’ constitutional right to life, which they do not assert in their own behalf.

318 U.S. at 46, 63 S.Ct. at 494.

The Supreme Court has on a number of occasions distinguished its Tileston holding. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), a physician was found to have standing to assert the constitutional rights of married individuals with respect to the state statute forbidding the use of contraceptives. Similarly, in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the Court found that a physician had the requisite standing to assert the rights of unmarried persons denied access to contraceptives. Admittedly, both Griswold and Eisenstadt rely in part on the fact that actual criminal convictions were involved. This fact, however, does not remove the present case from their mold. Although this case does not involve a present criminal prosecution, in our view the fact that the challenged regulations are aimed and operate directly on the plaintiffs, and are of a continuing nature, with potentially very real criminal consequences is sufficient to allow plaintiffs to assert the rights of their patients. Doe v. Scott, 321 F.Supp. 1385, 1387-1388 (N.D.Ill.1971) (three-judge court) vacated on other grounds, 410 U.S. 950, 93 S.Ct. 1423, 35 L.Ed.2d 683 (1973); Crossen v. Breckenridge, 446 F.2d 833, 839-840 (6th Cir. 1971).

Griswold and Eisenstadt are based in part on the type of relationship that existed between the plaintiff and the individual whose rights he is seeking to assert. In the abortion context the Supreme Court has recognized the need for patients to consult with their attending physician. Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 733, 35 L.Ed.2d 147. As such, the attending physician is integrally involved in the abortion decision itself. This is not, therefore, a case where one party seeks to raise the rights of another with whom he has only marginal involvement. Rather as the Court recognized in Griswold the rights being asserted were “likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to [the one whose rights are raised]. . . .” 381 U.S. at 481, 85 S.Ct. at 1680. The assertion by a third party of another’s rights in appropriate circumstances is not a new principle. In Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), the Supreme Court allowed a seller of land to defend an action for damages for breach of a racially restrictive covenant on the grounds that the covenant violated the equal protection rights of prospective non-Caucasian purchasers. The Court said:

Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another’s rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained.

346 U.S. at 257, 73 S.Ct. at 1035. See also Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).

It is not at all inconceivable that women who seek abortions will be dissuaded from challenging restrictions on their right to one during the first trimester, and will instead enter facilities that comply with the Board of Health’s regulations. This would then leave unchallenged, except for the efforts of these plaintiffs, the allegedly impermissible restrictions on a pregnant woman’s right of privacy.

Finally, there is another reason why we believe that plaintiffs should be permitted to assert the rights of pregnant women. To the extent that a woman’s right to an abortion during the first trimester is a fundamental one, it would be a wholly undesirable situation for physicians to be placed in the position of guessing at the risk of criminal liability whether they could honor and give effect to that right.

For all of the foregoing reasons we believe the district court erred when it ruled that the plaintiffs could not attack the validity of the Abortion Regulations on the basis of right of privacy as espoused by the Roe decision.

Ill

Having decided that the plaintiffs do have standing to claim the Abortion Regulations unduly infringe upon the privacy of their patients, it is next necessary to consider whether the regulations can stand in light of the Supreme Court’s decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 755, 35 L.Ed.2d 147 (1973).

In Roe the Court struck down as unconstitutional a Texas statute which made it a crime to procure or attempt an abortion except for the purpose of saving the life of the mother. The Court based its holding on a woman’s fundamental right of privacy. It stated:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

410 U.S. at 153, 93 S.Ct. at 727 (emphasis added).

The Court went on to say, however:

[T]hat the right, nonetheless, is not absolute and is subject to some limitations, and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.

410 U.S. at 155, 93 S.Ct. at 728.

The Court in the course of its opinion made it very clear that prior to the end of the first trimester governmental concern with respect to maternal health could not be sufficient to overcome a woman’s right to decide to abort a pregnancy.

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free ofn interference by the State.

410 U.S. at 163, 93 S.Ct. at 731 (emphasis added).

The regulations that we have previously summarized are quite extensive and are applicable to any place or facility in which abortions are performed without regard to the trimester involved. For the following reasons our reading of the foregoing language compels us to conclude that the Abortion Regulations adopted by the Chicago Board of Health cannot stand.

The defendants contend that notwithstanding the above language, that since their regulations are reasonably related to legitimate state interests — protecting the health and safety of the mother— that they therefore do not run afoul of any constitutional prohibition. They concede that the Supreme Court found that the abortion procedure, at least during the first trimester, was no more dangerous than normal childbirth. Roe, supra, at 149, 93 S.Ct. at 725. They argue, however, that the Supreme Court used this fact to hold only that it was state laws prohibiting all, or the great majority of abortions that could no longer be justified by maternal health considerations. Thus, they conclude that the Supreme Court in Roe and Doe passed no judgment on the question of whether there was a sufficient governmental interest during the first trimester to place reasonable health and safety requirements on the abortion procedure. We do not view the Supreme Court’s language as narrowly.

It is true that a state and under appropriate authorization, local governmental units have broad powers to establish and enforce standards for the purpose of protecting the health of its citizens. Barsky v. Board of Regents, 347 U.S. 442, 449, 74 S.Ct. 650, 98 L.Ed. 829 (1954). Under traditional analysis, exercise of the police power need only bear some rational relationship to a legitimate governmental interest. Williamson v. Lee Optical, Inc., 348 U.S. 483, 488-91, 75 S.Ct. 461, 99 L.Ed. 563 (1955). It is quite conceivable that under this standard the Abortion Regulations would be upheld, although on the record before this court there is no basis for determining whether the regulations are even reasonably related to a valid state concern.

The Supreme Court, however, has determined that where fundamental rights are involved regulations limiting these rights may be sustained only by a “compelling state interest.” Kramer v. Union Free School District, 395 U.S. 621, 627-28, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Despite the laudable goals of the Chicago Board of Health in attempting to set comprehensive safety standards for all abortion procedures, Roe will not allow these regulations to stand. The Court’s language makes abundantly clear that it is not until “from and after” the first trimester that a state may regulate abortions by regulations “reasonably relate[d] to the preservation and protection of maternal health.” Roe, supra, 410 U.S. at 163, 93 S.Ct. at 732.

If there was any doubt as to whether the Supreme Court was declaring broad health and safety regulations for first trimester abortions impermissible, it was cleared up by the Court’s description of what became permissible after that period. It was only after the “compelling point” that the Court said permissible state regulations could include requirements as to the specialty qualifications of the person who is to perform the abortion, the type of facility where it might be performed and similar types of regulations. Roe, supra, 410 U.S. at 163, 93 S.Ct. at 731-732. That the Court was referring to health and safety type regulations, is supported by another section of its opinion.

The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that "insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

410 U.S. at 150, 93 S.Ct. at 725 (emphasis added).

In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 755, 35 L.Ed.2d 147 (1973), the Court decided that the Georgia statute requiring that abortions be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals (JCAH) could not withstand constitutional scrutiny. After holding that the JCAH accreditation requirement was not reasonably related to the purposes of the Act in which it was found the Court stated:

This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish.

410 U.S. at 194-95, 93 S.Ct. at 749 (emphasis added).

We are not the first court to conclude that the fundamental right of privacy as described in Roe and Doe is expansive enough to include within its purview governmental regulations that seek to regulate abortion facilities during the first trimester. In Word v. Poelker, 495 F.2d 1349 (8th Cir. Feb. 20, 1974), the Eighth Circuit in striking down a St. Louis ordinance similar to the one involved here said:

The city ordinance in question here reflects no recognition of the fundamental rights involved and the commensurate restrictions on state action.
•X* * # -X* -X-
We hold that St. Louis city ordinance No. 56579 is, by reason of its failure to exclude the first trimester of pregnancy, an invalid and over-broad enactment infringing unreasonably upon fundamental rights.

Id. at 4. See also Coe v. Gerstein, 376 F.Supp. 695 (S.D.Fla. Aug. 13, 1973).

The appellees seek to escape the mandate of Roe and Doe by contending that they were premised on state interference with a woman’s right of privacy, at least in the first trimester, to decide to abort a pregnancy, and that the challenged regulations in the instant case do not affect the “abortion decision.” We disagree. The regulations by their very nature restrict the abortion decision and affect whether and in what manner an abortion will take place. The decision whether or not to abort a pregnancy cannot be made in a vacuum without regard to who will perform the operation, where and under what conditions it will be performed, and what procedure will be followed. All these are involved in any abortion decision and it is precisely these elements of the decision that the regulations challenged here seek to control. The language in Roe and Doe makes very clear that even after the decision to abort a pregnancy is made that decision must be able to be “effectuated by an abortion free of interference by the State.” Roe, supra 410 U.S. at 163, 93 S.Ct. at 732.

Roe and Doe compel us to conclude that the fundamental right of privacy includes, at least during the first trimester of pregnancy, the right to be free from governmental regulations that have an effect on the abortion decision. One look at the challenged regulations, summarized previously, show that they regulate during the first trimester precisely the type of things that the Supreme Court has said cannot be regulated until after that “compelling point.”

There is another reason as well why the Chicago Board of Health’s regulations cannot stand. The district court in its opinion stated that:

[P]hysicians performing abortions are selected from their profession to be subject to special regulations; but such discrimination is not unlawful when, as in this case, it is not arbitrary, unreasonable or unrelated to the governmental interests involved.

367 F.Supp. at 603.

We disagree with this reasoning of the district court.

It is clear that:

The Equal Protection Clause . does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 563, 64 L.Ed. 989 (1920).

Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225 (1971). Roe established that the decision to abort a pregnancy during the first trimester was within a woman’s right of privacy, which right has been held to be fundamental. Roe, supra 410 U.S. at 155, 93 S.Ct. at 727, accord, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Where fundamental rights are involved, it is impermissible to treat differently two classes which do not differ on any ground related to the purpose of the challenged statute. Doe v. Bolton, 410 U.S. 179, 194, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Given the Supreme Court’s acceptance of the medical fact that the mortality rate of women receiving legal abortions is “as low as or lower than the rates for normal childbirth,” Roe, supra 410 U.S. at 149, 93 S.Ct. at 725, there would seem to be little justification for more extensive governmental regulations, purportedly based on health considerations, for one procedure than the other. Doe v. Hale Hospital, 500 F.2d 144 (1st Cir. 1974).

The Chicago Board of Health’s Rules on Abortion Services regulate comprehensively physicians who perform abortions, while at the same time leaving other medical procedures, often much more complex and dangerous in terms of the patient’s health, up to the good judgment of the physician. The challenged regulations describe what equipment and supplies must be available, what medical tests must be performed, a minimal time interval between initial examination and termination of the pregnancy and what post-operative care shall be rendered.

The Chicago Municipal Code section on dispensaries does not regulate other medical procedures as extensively; instead it leaves these matters to the discretion of the physician. The Board of Health has offered no sufficiently compelling reason to justify this difference in treatment. Similar reasoning was employed by the Supreme Court when it struck down the Georgia provision requiring two-doctor concurrence before an abortion could be authorized. The Court said:

[N]o other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited to us. If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies.

Doe v. Bolton, 410 U.S. 179, 199, 93 S.Ct. 739, 751, 35 L.Ed.2d 201 (1973).

Recently, the Eighth Circuit when dealing with regulations that were similar to the one’s challenged here said:

We think that this myriad of requirements is unduly restrictive of a physicians’s right to administer his judgment as to an operation that is now established to be, within the first trimester of pregnancy, safer than childbirth. We are referred to no other single surgical procedure where doctors are required to “prove up” their overall fitness as they are here.

Word v. Poelker, supra at 6, 495 F.2d at 1351.

Thus, because the defendant treats differently without a compelling reason medical procedures which in terms of health risks are not distinguishable and because this difference in treatment affects adversely fundamental rights, the challenged regulations cannot be allowed to remain in effect.

IV

We have determined that given the “fundamental right” status of a woman to terminate her pregnancy during the first trimester, that in no circumstances could we allow to stand regulations, purporting to promote maternal health, that are more expansive than regulations that are applied to other medical procedures of the same risk and complexity. There is nothing to indicate in this case, that the Chicago Board of Health seeks to regulate any other medical procedure except in the most general of terms. Furthermore, any proposed regulation, even if applied universally to all similar medical procedures, because of the fundamental right of a woman to procure an abortion during the first trimester, would have to meet a compelling governmental interest requirement. Thus, any general health regulations which would apply to first trimester abortions would have to be limited so as to give effect to the fundamental rights as established by Roe and Doe-, that is not be burdensome on a woman’s right to decide to abort a pregnancy. By this we mean that in all probability nothing broader than general requirements as to the maintaining of sanitary facilities and general requirements as to meeting minimal building code standards would be permissible.

We do not, however, completely rule out the possibility that there exist some inherent aspects of an abortion procedure which make it unique from other medical procedures of substantially the same risk. For such aspects, the Board of Health may be able to show that a narrowly drawn health regulation is compelling. Again we should point out that the state will bear a heavy burden in justifying any such regulation, both with respect to showing the existence of a unique medical complication and with respect to showing that the problem is of such a nature as to be beyond the general scope of a doctor’s professional judgment.

Because it is clear that the challenged regulations here, even if interpreted in a limited manner, could not meet the standards we have set for the first trimester of pregnancy, we declare them invalid.

We reverse the judgment of the district court and remand with directions to enter an order consistent with this opinion granting plaintiffs’ requested relief.

FAIRCHILD, Circuit Judge

(concurring) .

I agree that plaintiffs have standing to challenge the Board of Health regulations as infringing upon their patients’ right to privacy. I agree that language in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 755, 35 L.Ed.2d 147 (1973) must mean that regulations of the type here involved, exclusively applicable to abortion procedures and applicable whether or not an abortion is within the first trimester, violate the right to privacy. I respectfully disagree, however, with two propositions set forth in Part IV of this court’s opinion.

First, the majority indicates, apparently as dictum, that any general regulation of a broad class of medical and surgical procedures within which abortion would fall, must satisfy a “compelling governmental interest requirement” before it can be applied to abortions during the first trimester and therefore would probably be limited to general sanitary and structural codes. I do not believe that Roe requires such a result. While recognizing that abortion during the first trimester is as safe as normal childbirth and that special State interest in protecting the patient from an inherently dangerous surgical procedure has thus largely disappeared during this period, the Supreme Court noted that:

“Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.” Roe v. Wade, supra, 410 U.S. at 149-150, 93 S.Ct. at 725.

This language indicates, I believe, that special regulation aimed expressly or in fact at abortions, including those conducted during the first trimester, such as in the present case, impermissibly limits the patient’s constitutional right to privacy by imposing a burdensome, extra layer of requirements upon a surgical process deemed indistinguishable from similar medical procedures. Nevertheless, regulation of the safety of all these procedures, incidentally including first trimester abortions, through imposition of generally applicable regulations, would seem to be a valid exercise of the State’s interest in protecting health and need only satisfy the traditional tests of judicial scrutiny imposed in this area. Barsky v. Board of Regents, 347 U.S. 442, 449, 74 S.Ct. 650, 98 L.Ed. 829 (1954).

Second, while I agree that it is inappropriate to save the regulations under consideration here by construing them as excluding abortions performed during the first trimester, I do so because of the difficulty and confusion which would probably result from such exception by construction. The majority, however, in rejecting the saving-by-construction course asserts that there is no basis in the record for a determination as to which of the regulations, even if so limited, are reasonably related to a valid State interest. This places the burden of establishing the constitutionality of challenged regulations on the State. In the case, however, of regulations of the period after the first trimester, when the State has a “compelling interest” in regulation of the abortion procedure, Roe v. Wade, supra, 410 U.S. at 163, 93 S.Ct. 705 such regulations are, in my opinion, entitled to presumptive validity, and the burden of establishing lack of reasonable relationship to permissible objectives should be left with the charging party. Compare, Morales v. Schmidt, 494 F.2d 85, 88 (7th Cir. 1974) (Stevens, J., concurring).

With the exception of the above issues, I concur in Judge Sprecher’s thoughtful opinion.

      . 42 U.S.C. § 1983 reads as follows:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . The district court determined that it had jurisdiction over the cause pursuant to 28 U.S.C. § 1331, 367 E.Supp. 598-599, and the defendants have not pressed this point on appeal. The district court also rejected the defendants' contention that the case was moot because the plaintiff had in fact complied with the challenged regulations. The court found that the regulations had “a continuing regulatory effect on the plaintiffs” and thus rejected the mootness claim. 367 E.Supp. at 601. As with the jurisdictional claim, the defendants have abandoned this argument on appeal.

      . Because of our disposition of the case, we have found it unnecessary to consider appellants’ arguments that the abortion regulations deny procedural due process and are unduly vague.

      . The regulations have been set out as an appendix to the district court’s opinion. Friendship Medical Center, Ltd. v. Chicago Board of Health, 367 F.Supp. 594, 608-621 (N.D.Ill.1973).

      . The terms qualified obstetrician and qualified surgeon are defined as follows :
      Qualified Obstetrician means:
      (1) A licensed physician who is a diplómate of the American Board of Obstetrics and Gynecology; or who submits evidence to the Chicago Board of Health that his training and experience qualify him for admission to the examination by such Board; or
      (2) A licensed physician who is a Fellow of the American College of Surgeons in the specialty of Obstetrics and Gynecology; or The American College of Obstetrics and Gynecology.
      (3) A Doctor of Osteopathy who holds a license to practice medicine in the State of Illinois and who is certified by the American College of Osteopathic Obstetricians and Gynecologists, or who submits evidence to the Chicago Board of Health that his training and experience qualify him for admission to the examination by such Board, or who submits evidence of completion of an approved residency in obstetrics and gynecology.
      Qualified Surgeon means:
      (1) A licensed physician who is a Diplómate of the American Board of Surgery, or who submits evidence to the Chicago Board of Health that his training and experience qualify him for admission to the examination by such Board ; or
      (2) A licensed physician who is a Fellow of the American College of Surgeons; a Doctor of Osteopathy who holds a license to practice Surgery in the State of Illinois and who is certified by tire American College of Osteopathic Surgeons, or who submits evidence to the Chicago Board of Health that his training and experience qualify him for admission to the examination by sucli Board or who submits evidence of com-jdetion of an approved residency in surgery.
      Abortion Regulations, supra, sections 1(f), (g).

      . Section 9-5 of the Chicago Municipal Code states:

      . Abortion Regulations, supra, section II provides:

        Registration, Requirements and Standards:

      (a) No person shall maintain or operate or present himself as maintaining or operating an Abortion Service unless he has first registered such service with the Chicago Board of Health. Registration shall be made on forms furnished by the Chicago Board of Health and shall contain the information required therein. The Board of Health has the right of refusal to register any service that does not comply with the regulations of the Abortion Service. Any change in ownership, physician in charge, staff physicians, staff qualifications, extent of operations, location or affiliate hospital shall be reported to the Chicago Board of Health.

      . Abortion. Regulations, supra, section XIX provides:

        Closing Abortion Service:

      Whenever an inspection determines that an Abortion Service lias failed to register in accordance with Section 11(a) of these regulations or continued operation of such an Abortion Service would be found to be in violation of any of the sections of the Abortion Service regulations, the Board of Health may direct the Commissioner of Health to order the discontinuance of operations until the Abortion Service is registered or until the Board of Health is satisfied that the violations are corrected, such order shall be served in writing personally, upon the owner or person in charge.

      . As the Court said in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973):
      [In Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) ] a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice or the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one liad ever been prosecuted under it. Georgia’s statute, in contrast, is recent and not moribund. Furthermore, it is the successor to another Georgia abortion statute under which, we are told, physicians were prosecuted. Tlie present case, therefore, is closer to Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), where the Court recognized the right of a school teacher, though not yet charged criminally, to challenge her State’s anti-evolution statute. 410 U.S. at 188-189, 93 S.Ct. at 746.

      . Similarly, the Court in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) said:
      And so here the relationship between Baird and those whose rights he seeks to assert is not simply that between a distributor and potential distributees, but that between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so.
      405 U.S. at 445, 92 S.Ct. at 1034.

      . In the same regard the Court said:
      As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
      410 U.S. at 159, 93 S.Ct. at 730.

      . Defendants at oral argument contended that the regulations would not be applicable to an individual practitioner’s office. We disagree with their assertion. Section 1(a) defines an “Abortion Service” as “a place or facility in which abortions are performed,” and section 11(e) states:
      An abortion shall be performed only by a physician . . . in an Abortion Service operated in accordance with the provisions of these regulations.
      Abortion Regulations, supra, section 11(c).

      . The precise language of the Court is “requirements as to the qualifications of the person who is to perform the abortion.” Roe, supra 410 U.S. at 163, 93 S.Ct. at 732. While it might be possible to interpret this language to mean that the state cannot require that a physician perform an abortion during the first trimester, we believe the better view of this language is to the effect that after the first trimester the state may require that a physician with a specialty is required to perform all abortions. This view is supported by the fact that throughout the opinion the Court considers the physician as playing an integral role in any abortion decision. Furthermore the Court went on to say, without reference to the trimester involved that “[t]he state . . . may proscribe any abortion by a person who is not a physician. ...” Roe, supra 410 U.S. at 165, 93 S.Ct. at 733.

      . There is at least one part of the Doe opinion that might be read as allowing limited health regulations on facilities offering abortions during the first trimester. The Court said:
      We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests. We hold that the hospital requirement of the Georgia law, because it fails to exclude the first trimester of pregnancy . .. is also invalid.
      410 U.S. at 195, 93 S.Ct. at 749 (emphasis added).
      We find however, that the language at best only implies that health regulations may be imposed on abortion facilities and that this implication flies in the face of the more direct and controlling language that we have set out in our opinion.

      . The Supreme Court’s conclusion that regulations during the first trimester must be essentially limited to requiring a licensed physician has not escaped criticism.
      The fact that childbirth causes more women to die than do first-trimester abortions obviously does not warrant the Court’s conclusion that state controls over first-trimester abortion procedures must be limited to requiring a licensed physician, or indeed that such controls must be limited to whatever state regulations exist governing medical practice generally. For it is conceivable that even very early abortions would in some particular category of cases pose substantial and distinctive risks to maternal life or health unless specified procedures were complied with. So long as procedural requirements defended in terms of health are not used as a subterfuge to forbid early abortions on other grounds, the argument for their imposition by law seems compelling enough to justify their promulgation and enforcement.
      Tribe, The Supreme Court 1972 Term— Foreward: Toward a Model of Roles In Due Process of Life and Law, 87 Ilarv.L.Rev. 1, 30 (1973).

      . We use the local ordinances on dispensaries for comparison purposes as opposed to the ordinance on hospitals (Municipal Code of Chicago, cli. 137) because the Supreme Court has clearly decided that any state regulation requiring hospitalization for the performance of an abortion during the first trimester is impermissible. Doe v. Bolton, 410 U.S. at 195, 93 S.Ct. at 739.

        From the definition of dispensaries, it seems clear that the requirements of the ordinance would be applicable to abortion clinics. Municipal Code of Chicago, ch. 118, § 1.1. It should be noted, however, that the dispensary provisions do not purport to cover a doctor’s office. Id. § 1.2.
      The only restrictive requirements placed on dispensaries are: a requirement that complete medical records be kept, Id. % 6; the reporting of all contagious, epidemic, or communicable diseases, § 7; and a general requirement that: “Every person conduct-
      ing or operating a dispensary shall keep the rooms, equipment, and apparatus of such dispensary in a clean and sanitary condition.” Id. § 8.

      . Similarly, a three-judge district court said:
      Plaintiffs assail the regulation [requiring hospital affiliation] on several grounds. Their leading argument is that Roe and Doe exempted first-trimester abortion facilities from any licensing requirements that do not apply to medical facilities generally. We agree. [Citations omitted.] Under Roe and Doe, if North Carolina may regulate the performance of first-trimester abortions at all, it may do so only to the extent that it regulates tonsillectomies and other relatively minor operations. . . . Doctors may perform other medical procedures — including minor surgery and obstetrical delivery, which is considered more dangerous than first-trimester abortion — [footnote omitted] away from hospitals, with neither a transfer agreement nor active staff privileges. [Citation omitted.] That the state is ordinarily willing to leave such matters to the professional judgment of the attending physician strongly suggests that the program for regulating abortion clinics is a thinly disguised effort to evade Roe and Doe.

      Hallmark Clinic v. Department of Human Resources, 380 F.Supp. 1153 (E.D.N.Cal. 1974).

      . See note 16, supra.

      . From and after the first trimester according to the Supreme Court in Roe, the state has a legitimate interest in maternal health and “may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” 410 U.S. at 163, 93 S.Ct. at 732. Even if the challenged regulations here were interpreted as applying only to the period after the first trimester, there is no basis in the record upon which this court could make a determination as to which of these regulations were reasonably related to a valid state interest.
      While under a rational relationship type test a municipal ordinance pursuant to its police powers will be given great deference, Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 6 L.Ed.2d 363 (1961), it must be remembered that at the end of the first trimester a woman does not lose completely her right of privacy. See note 11, supra. The Supreme Court held in Roe that at that point a legitimate state interest in the health of the mother accrues. Thus, any regulation dealing with maternal health after the end of the first trimester must not only be reasonably related to a valid health purpose, but must have appropriate regard to the still existing right of privacy of the mother. Exactly where this balance is to be struck will have to be decided on a case by case basis.

      . It goes without saying, that any such generally applicable regulation including first trimester abortion procedures within its scope, which fail reasonably to relate to safety concerns presented by this type of medical procedure, would fail.


source: Caselaw Access Project

author: HUFSTEDLER, Circuit Judge: MERRILL, Circuit Judge. BARNES, Circuit Judge

license: Public Domain

text:
    Helen Ann BOWERS, Plaintiff-Appellant, v. D. C. CAMPBELL et al., Defendants-Appellees.
    No. 72-1273.
    United States Court of Appeals, Ninth Circuit.
    Oct. 24, 1974.

      Russell W. Galloway, Jr. (argued), Legal Aid Society of Alameda County, Oakland, Cal., for plaintiff-appellant.

      Brian B. Denton, Asst. U. S. Atty. (argued), San Francisco, Cal., for defendants-appellees.
    Before BARNES, MERRILL and HUFSTEDLER, Circuit Judges.
   OPINION

HUFSTEDLER, Circuit Judge:

Bowers, a federal civilian employee, filed a complaint seeking injunctive and declaratory relief and back pay against the officers of the United States Air Station in Alameda, California (“NAS”), claiming that her removal from a trainee position, denial of later promotions, harassment, and reprimands were based on racial discrimination. Before she brought suit in the federal district court, she fully exhausted her administrative remedies. She then invoked federal jurisdiction under 42 U.S. C. § 1981, 28 U.S.C. §§ 1331, 1343(4), and 5 U.S.C. §§ 701-706.

The district court held that jurisdiction under 28 U.S.C. § 1331 was lacking because the matter in controversy did not exceed $10,000. Although the court recognized that jurisdiction was properly invoked under both 28 U.S.C. § 1343(4) and the Administrative Procedure Act (5 U.S.C. §§ 701-706), it characterized the action as a request for judicial review of an administrative proceeding. The court thereupon denied her a de novo trial on the merits of her civil rights action and confined its exercise of jurisdiction to a review of the administrative record. After reviewing the record, the court concluded that administrative rejection of her claims of racial discrimination was not arbitrary or capricious and that procedural errors had not been committed. Partial summary judgment was entered accordingly. The case comes before us on interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

The appeal presents the following issues:

(1) Does 42 U.S.C. § 1981 operating in conjunction with 28 U.S.C. § 1343(4) confer federal jurisdiction in this action charging federal officials with racial discrimination ?

(2) Is sovereign immunity a jurisdictional bar to her civil rights action?

(3) If jurisdiction lies under both the Civil Rights Act and the Administrative Procedure Act, is Bowers entitled to a trial de novo or a more restrictive form of judicial review on her civil rights claim ?

I

Bowers’ complaint stated a claim for relief under section 1981. Contrary to respondents’ contention, section 1981 applies to employment discrimination by federal officials; it is not confined to state or private action.

The Supreme Court has noted that “like the [Thirteenth] Amendment upon which it is based, § 1982 is not a ‘mere prohibition of state laws establishing or upholding’ racial discrimination in the sale or rental of property but, rather, an ‘absolute’ bar to all such discrimination, private as well as public, federal as well as state.” (District of Columbia v. Carter (1973) 409 U.S. 418, 422, 93 S.Ct. 602, 605, 34 L.Ed.2d 613.) Section 1981, like section 1982, is based on the Thirteenth Amendment and the Civil Rights Act of 1866. (Tillman v. Wheaton-Haven Recreation Ass’n (1974) 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 Both sections on their face prohibit all racial discrimination regardless of source, in contrast to 42 U.S.C. § 1983, based on the Fourteenth Amendment, which “deals only with those deprivations of rights that are accomplished under the color of the law ‘of any State or Territory.’ ” (District of Columbia v. Carter, supra, 409 U.S. at 424, 93 S.Ct. at 606.) The Supreme Court’s reasons for its broad, literal construction of section 1982 apply with equal force to section 1981. (See Macklin v. Spector Freight Systems, Inc. (1973) 156 U.S. App.D.C. 69, 478 F.2d 979, 993-994.)

Bowers properly invoked federal jurisdiction pursuant to 28 U.S.C. § 1343(4) to vindicate her rights under 42 U.S.C. § 1981. No monetary minimum is necessary to sustain jurisdiction under these circumstances. (Jones v. Alfred H. Mayer Co. (1968) 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189.)

II

Sovereign immunity poses no jurisdictional bar to Bowers’ action against the named NAS officials. If Bowers eventually prevails on her section 1981 claim, it will be because the federal officials have engaged in racially discriminatory employment practices that are forbidden by that section. “[Wjhere the [federal] officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief.” (Larson v. Domestic & Foreign Commerce Corp. (1949) 337 U.S. 682, 689, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628.)

Sovereign immunity may limit the relief to which Bowers may ultimately be entitled. (See, e. g., Beale v. Blount (5th Cir. 1972), 461 F.2d 1133, 1137-38.) But we have no occasion on this limited interlocutory appeal to speculate about the restrictions that may be imposed upon any relief that she may be granted.

Ill

More difficult is the question of the nature of the judicial review to which Bowers is entitled. We have discovered no case that has considered the appropriate standard of review when a plaintiff seeks relief in a civil rights action after unsuccessfully running the Civil Service Commission gauntlet.

Section 1981 actions and judicial review of claims of discrimination administratively processed and brought before the court under the Administrative Procedure Act are separate, coexisting remedies. Their coexistence reflects recognition of the perniciousness and depth of racial discrimination, as a result of which “legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” (Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147; cf. Oubichon v. North American Rockwell Corp. (9th Cir. 1973) 482 F.2d 569.)

In the action below the district court considered itself constrained to choose between a full de novo evidentiary hearing on Bowers’ section 1981 action or the highly restrictive review that is available under the Administrative Procedure Act. We do not think the choice of a proper standard of review is so limited. Rather, we should formulate a standard of judicial review that will accommodate the potentially conflicting policies that underlie affording civil rights actions to individuals and establishing administrative procedures to process discrimination claims.

Creation of an administrative forum through which employment grievances could be processed was a response to the need for dispute resolution mechanisms that would be cheaper and quicker than the courts, for alleviation of the judicial burden, and for fact finding by a body having familiarity with and expertise in the employment context in which the grievance arose. To fulfill these goals, among others, judicial review of determinations by agencies such as the Civil Service Commission has been severely circumscribed. (E. g., Benson v. United States (9th Cir. 1970) 421 F.2d 515; Taylor v. United States Civil Service Comm’n (9th Cir. 1967) 374 F.2d 466; Polcover v. Secretary of Treasury (1973), 155 U.S.App.D.C. 229, 477 F.2d 1223.)

However, the administrative route has not always been effective, and it has even been counterproductive in achieving the overriding purpose of destroying the evil of racial discrimination in employment. Congress has recognized the shortcomings of administrative handling of discrimination claims in federal employment. In response, it passed the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-16), which substantially upgraded administrative protections against such discrimination. Both Bowers and the Government recognize that the 1972 Act does not apply to the 1963 events involved here. However, we cannot ignore Congress’ determination that administrative performance in this area has been wanting.

Nor can we ignore the existence of the administrative structure. Bowers has had the benefit of adversary proceedings of a quasi-judicial nature. These proceedings are entitled to some dignity, and refusing to accord them this dignity would frustrate the policies favoring administrative resolution of employment grievances. Bowers’ case thus presents a very different problem from the somewhat analogous situation of a Title VII suit brought in absence of an EEOC determination that there is reasonable cause to believe that the Act has been violated. In that context, complainants have been held entitled to a full, de novo evidentiary hearing in their civil action, but this decision was made in light of the nonadversary nature of many EEOC proceedings. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 799, 93 S.Ct. 1817, 36 L.Ed.2d 668.)

We thus confront a situation in which neither of the alternatives considered by the district court satisfactorily accommodates the competing policy needs. Despite the caution with which we must approach the task of prescribing the scope of review to which Bowers is properly entitled, we must hold that the district court erred in confining itself to the restrictive scope of review of agency action sanctioned by the Administrative Procedure Act. The district court abandoned its section 1343(4) jurisdiction and held that when there was jurisdictional overlap, the more restrictive provisions of judicial review must prevail. That rationale, though plausible, does not fit the policy needs of this case and is inconsistent with the reasoning of the cases upholding the coexistence of independent Title VII and section 1981 actions. (E. g., Caldwell v. National Brewing Co. (5th Cir. 1971) 443 F.2d 1044; Macklin v. Spector Freight Systems, Inc., supra, 478 F.2d 979.) A requirement of a full de novo hearing would be equally inconsistent with the policy needs presented here.

The Supreme Court has, however, suggested a method of accommodating the competing policies underlying separate, overlapping remedies against discrimination in a comparable context. In Alexander v. Gardner-Denver Co., supra, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, the court held that an employee’s statutory right to a private action under Title VII is not foreclosed by prior submission of his or her claim of discrimination to arbitration under the nondiscrimination clause of a collective bargaining agreement. But, the court said, “[t]he arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate.” (Id. at 60, 94 S.Ct. at 1025. Footnote omitted.) Although it did not adopt any standards as to the weight to be accorded an arbitral decision, “since this must be determined in the court’s discretion with regard to the facts and circumstances of each case,” (id. at 60 n. 21, 94 S.Ct. at 1025), the Court noted that “[w]here an arbitral determination gives full consideration to an employee’s Title VII rights, a court may properly accord it great weight. This is especially true where the issue is solely one of fact, specifically addressed by the parties and decided by the arbitrator on the basis of an adequate record.” (Id.)

We adopt a similar approach. To assure that both the complainant and the appropriate government officials take seriously their responsibilities to attempt to resolve charges of discrimination without resort to litigation, the administrative decision and the record on which it is based must be accorded at least as much weight in the district court as that given to the arbitral decision in Alexander v. Gardner-Denver Co. On the other hand, the district court must bear the ultimate responsibility for determining the facts underlying the dispute. Imposition of a lesser duty would drain any significance from continuing access to 42 U.S.C. § 1981 and 28 U.S.C. § 1343(4). The district court cannot discharge its burden merely by deciding that administrative findings are supported by substantial evidence.

After the administrative record has been introduced into evidence, the court must consider the final agency determination in the light of the procedural fairness that was accorded to the claimant during the administrative proceedings and of the adequacy of the record in all other respects bearing upon the discrimination issues. If, in the exercise of its reasoned discretion, the district court finds the record wanting, it can disregard the administrative determination of fact and law on the discrimination issues. If it decides that the agency reached sound conclusions on the basis of proceedings that provided the claimant a full and fair opportunity to present his or her grievances, the court will accord it that deference which is appropriate under all of the circumstances of the case. Both the employee and the employer shall have the right to adduce additional evidence to supplement the administrative record. (Cf. Hackley v. Johnson (D.D.C.1973) 360 F.Supp. 1247, 1252-53.)

This hybrid form of original action, with a de novo decision by the district court based primarily on the administrative record (if it is deterimined to be fair and adequate) with provision for the admission of additional evidence should satisfy the policies underlying limited judicial review of agency employment decisions while assuring Bowers the full availability of her federal judicial forum for the final resolution of her discrimination claim.

Our disposition of these issues renders unnecessary consideration of the remaining contentions of the parties.

Bowers shall have her costs on appeal.

The cause is remanded to the district court for further proceedings consistent with the views herein expressed.

MERRILL, Circuit Judge.

I concur in Judge Hufstedler’s Opinion.

BARNES, Circuit Judge

(dissenting):

I dissent.

As the majority opinion points out, the main issue in this appeal is what scope of review should be exercised by the district court when it has jurisdiction over the subject matter of an action both as an appeal from a final agency decision under 5 U.S.C. § 704, and independently under 28 U.S.C. § 1343(4). It is clear from the statutes involved that if jurisdiction were predicated upon 5 U. S.C. § 704 alone, the narrow and restrictive review provisions of 5 U.S.C. § 706 would apply; and if the case were initially brought under 28 U.S.C. § 1343(4), and without an intermediary agency adjudication, there would be original jurisdiction in the Federal District Court, which would then hear the case as nisi prius. However, § 1343(4) does not specifically guarantee a plaintiff a de novo trial. A full judicial hearing is merely the result of that section’s grant of original jurisdiction when there has been no prior proceeding. In the case at hand we are faced with an overlap of jurisdictional provisions, but I cannot agree with the majority that this overlap should in effect allow plaintiff a second day in court — a hearing de novo — when she has already had a full quasi-judicial hearing of her case. A plaintiff is certainly not normally allowed one additional trial de novo for each and every jurisdictional basis he can discover for his lawsuit, but this is precisely what the majority is doing here by tinkering with the scope of review.

I think that the court below reached the better resolution in holding that even in the face of a claim of racial discrimination, the review of an agency’s decision is limited to that available under § 706. See Halsey v. Nitze, 390 F.2d 142, 144 (4th Cir.), cert. denied, 392 U.S. 939, 88 S.Ct. 2316, 20 L.Ed.2d 1399 (1968); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973); Thompson v. United States Dept. of Justice, Bureau of Narcotics and Dangerous Drugs, 372 F.Supp. 762 (N.D.Cal.1974); Handy v. Gayler, 364 F.Supp. 676 (D.Maryland 1973); Carr v. United States, 337 F.Supp. 1172 (N.D.Cal.1972).

The majority’s reliance upon Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) for theoretical support for their position is, I feel, misfounded. In that case the Court held that an employee’s statutory right to a trial de novo under Title VII of the Civil Rights Act of 1964 was not foreclosed by prior submission of his claim to final arbitration under a non-discrimination clause of a collective-bargaining agreement. That case (and for the same reasons Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th Cir. 1973)) is distinguishable from the instant case on two very fundamental bases.

First, the Court’s holding in Alexander was that where plaintiff had both a contractual right and a “distinctly separate” statutory right, the pursuance of one right did not foreclose action upon the other. In the case at hand, plaintiff has but a single right for which she has two overlapping statutory jurisdictional means by which to secure a vindication of that right. (See Appellant’s Opening Brief at 4-5.)

Second, in suggesting that on remand there ought to be a trial de novo at which the proceedings of the administrative agency are merely treated as evidence — a resolution the majority lifts whole cloth from Alexander — the majority fails to recognize that the Supreme Court tailored that solution for an entirely different type of situation from the one here presented. Arbitration, which was the matter before the Court in Alexander is not designed to resolve plaintiff’s rights under the statutes, but rather plaintiff’s rights under a contract. In Alexander plaintiff did not have a judicial type hearing or its equivalent concerning the merits of his statutory claim. Arbitration is a significantly different process from a judicial hearing, and one not adequate to safeguard or resolve all issues pertaining to plaintiff’s rights under the Civil Rights Act. A quasi-judicial proceeding coupled with review under § 706 however, is adequate to resolve plaintiff’s rights in.this matter, and is not so disparate from a full judicial hearing in Federal Court to be contrary to the spirit of the Civil Rights Act.

For a second reason, I am concerned by the majority’s holding in the instant case. 28 U.S.C. § 1343 is an exceedingly broad section, extending far beyond the cases of racial discrimination. To set forth, as the majority does, the general rule that a trial de novo is available, despite a prior agency proceeding, anytime the action could also have been brought under the rubric of § 1343, will, I fear, either givé any complainant two shots at a favorable result; or, will result in largely supplanting the provisions of § 706, hampering both judicial and administrative efficiency, and adversely affecting judicial respect for agency decisions. Moreover, I fear that we will be sacrificing these goals for little or no increase in the accuracy or fairness in the settlement of claims under the civil rights acts.

I would affirm.

      . She filed a complaint charging racial discrimination at NAS and participated in an extended series of hearings in 1964, 1965, and 1967. She processed her appeals through the Department of the Navy, the President’s Committee on Equal Employment Opportunity, and the Civil Service Commission Board of Appeals and Review: All of the proceedings terminated adversely to her.

      . Respondents contend that Bowers’ complaint cannot be founded on section 1981 because she did not specifically cite the section in the complaint. Their attempt to evoke wholly outmoded technical pleading rules is fruitless. She alleged all of the facts required to state a claim under section 1981. She was not required specifically to plead the statutory provision conferring jurisdiction. (Williams v. United States (9th Cir. 1969) 405 F.2d 951.) Moreover, respondents were fully aware of her reliance on section 1981 when the motions for summary judgment were filed.

      . We disregard developments that occurred after the district court retained jurisdiction and limited the scope of judicial review because none of them bears on the issues presented on this appeal.

      . The court further explained the history of §§ 1981, 1982:
      “The present codification of § 1981 is derived from Revised Statutes § 1977 (1874), which codified the Act of May 31, 1870, § 16, 16 Stat. 144. Although the 1866 Act rested only on the Thirteenth Amendment, . . . and, indeed, was enacted before the Fourteenth Amendment was formally proposed, . . . the 1870 Act was passed pursuant to the Fourteenth, and changes in wording may have reflected the language of the Fourteenth Amendment. . . . The 1866 Act was re-enacted in 1870, and the predecessor of the present § 1981 was to be ‘enforced according to the provisions’ of the 1866 Act. Act of May 31, 1870, § 18, 16 Stat. 144.” (410 U.S. at 439-440 n. 11, 93 S.Ct. at 1095; citations omitted.)

      . Bowers complains that the administrative procedures that she pursued did not give her fact-finding processes equivalent to those available in judicial proceedings, such as discovery, compulsory process, wide-ranging cross-examination, and strict evidentiary rules. Similar deprivations in the arbitral procedure considered in Alexander v. Gardner-Denver Co., supra, 415 U.S. at 57-58, 94 S.Ct. 1011, led the court to give de novo judicial review to the emjdoyee whose employment discrimination claim was decided adversely to him in the arbitration.
      The history of Bowers’ discrimination charges is eloquent evidence that her pursuit of administrative justice was neither quick nor cheap.

      . Dissatisfaction with administrative performance in the employment discrimination situation and with the limited nature of judicial review of charges of discrimination in federal employment was the primary reason for enactment of section 11 of the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-16). The 1972 Act established new remedies for federal employees confronted with employment discrimination. (See, e. g., 118 Cong.Rec. 4929 (1972) (remarks of the Act’s co-sponsor, Senator Cranston).) After providing essentially that all personnel actions affecting federal employees are to be free from discrimination and giving the Civil Service Commission (not the EEOC) a wide range of remedial tools to effectuate the statute’s explicit mandate, the 1972 Act provides that employees dissatisfied with the final administrative disposition of their complaints or with the failure of the Government to' take final action “may file a civil action as provided in section 2000e-5 of this title [Title VII’s private remedy provision], in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.” (42 U.S.O. § 2000e-16(c).)

      . Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) was not otherwise available to Bowers because the federal government is not included within the definition of “employer” under the Act. (42 U.S.C. § 2000e(b).)

      . Our decision here about the proper scope of judicial inquiry after agency action re-fleets only the policy issues raised by a section 1981 action brought by a federal employee. Different policy considerations may apj>ly to a suit by a federal employee authorized by 42 U.S.O. § 2000e-16 under the 1972 Act. (See note 6 supra.) We intimate no views concerning the proper scope of inquiry in such a case.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. ONE 1972 TOYOTA MARK II VIN RT 63016188, Marjorie Von Weise, Appellees.
    No. 74-1298.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1974.
    Decided Nov. 12, 1974.

      Thomas O’Hare, Atty., Dept, of Justice, Washington, D. C., for appellant.
    James F. Malone, St. Louis, Mo., for appellees.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and ROSS, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

Plaintiff United States of America brought this action pursuant to 21 U.S.C. § 881 and 28 U.S.C. § 1355 against defendant, One 1972 Toyota Mark II automobile, seeking forfeiture of the automobile to plaintiff. Mrs. Marjorie Von Weise, holder of the legal title to the automobile, intervened and filed answer denying any valid reason existed for forfeiture of the automobile. The case was tried to the court on stipulated facts. The court did not grant the forfeiture but instead ordered the automobile sold and directed the proceeds of the sale to be first applied on court costs and costs of seizure, forfeiture and sale with the remaining proceeds to be paid Marjorie Von Weise. This is an appeal by the plaintiff from such final judgment.

There is no disputed fact issue. Federal officers on January 5, 1973, saw Martha Von Weise and Stephen Deibel drive to 2936 Caddiefield Road, Ferguson, Missouri, in the defendant automobile and enter the premises. The officers saw Martha Von Weise deliver to Stephen Deibel 29.2 grams of cocaine, in violation of 21 U.S.C. § 841(a) (1). Martha Von Weise was subsequently arrested and voluntarily admitted that she had transported cocaine in the defendant automobile. Her voluntary plea of guilty to an indictment charging distribution of cocaine was accepted. She was convicted and sentenced.

The defendant automobile was prior to January 5, 1973, given by Marjorie Von Weise to her daughter Martha Von Weise as a birthday present. Marjorie Von Weise stated she retained legal title to the automobile for “insurance purposes only.” Her testimony is that the defendant car “was her daughter’s car in fact to use as she wished and that she did not exercise any control over the use of the car, except for the purpose of .adequately insuring the car, licenses and maintenance.” It is agreed that Marjorie Von Weise did not know the automobile was being used for the transportation of controlled substances and was not willfully negligent, and that she had no intention to violate any law.

For a reversal, the Government presents the following points: (1) The court erred in refusing to grant a judgment of forfeiture of the automobile to the United States. (2) The trial court has no authority or jurisdiction to grant remission or mitigation of the forfeiture and thus erred in ordering the proceeds of the sale after payment of court and forfeiture costs to Marjorie Von Weise.

We agree with the Government’s contention that the court erred in refusing to grant judgment of forfeiture and in awarding the net proceeds of sale above court and sale costs to Marjorie Von Weise. Under the stipulated facts heretofore summarized, plaintiff has established probable cause that defendant automobile was used to facilitate the transportation, sale, receipt, possession or concealment of a controlled substance. Upon such showing, the burden of absolving the vehicle from culpability rests on the defendant. Ted’s Motors Inc. v. United States, 217 F.2d 777, 780 (8th Cir. 1954). Such burden has not here been met. There is no evidence rebutting the Government’s case.

Twenty-one U.S.C. § 881 subjects to forfeiture vehicles used to facilitate transportation, sale, receipt, possession or concealment of a controlled substance such as cocaine. An exception that could be possibly pertinent here reads:

(B) no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any State.

Such exception clearly does not apply under the undisputed facts in this case. The possession of the automobile was lawfully in Martha Von Weise. She was authorized by Marjorie Von Weise to use the automobile at any time for any purpose that she desired. Martha Von Weise was in effect the equitable owner of the automobile. The automobile at the time of the transportation of the cocaine was not unlawfully in the possession of Martha Von Weise in violation of any state or federal criminal law. The language of the statute, including the exception, is clear and unambiguous. Consequently resort to legislative history is not available to change the clear meaning of the statute. Under the undisputed facts in this case, the exception does not apply.

The innocence, noninvolvement or lack of negligence of the owner in allowing the vehicle to be used for the forfeitable offense is no defense to the forfeiture action. United States v. One 1971 Lincoln Continental Mark III, 460 F.2d 273, 275 (8th Cir. 1972); United States v. One 1967 Cadillac Coupe Eldorado, 415 F.2d 647, 648 (9th Cir. 1969); United States v. One 1961 Cadillac, 337 F.2d 730, 732 (6th Cir. 1964); cf. Astol Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

The trial court has no authority or jurisdiction to remit or mitigate the forfeiture under the facts of this case. United States v. One 1958 Pontiac Coupe, 298 F.2d 421, 423 (7th Cir. 1962). The court in awarding Marjorie Von Weise the net proceeds of the sale of the automobile, above costs, was in effect mitigating the forfeiture.

The trial court’s reliance upon United States v. One 1969 Cadillac DeVille Convertible, 330 F.Supp. 1338 (E.D.Mo. 1971) , is misplaced. The court in that case at finding (3) determined that the relief awarded had been authorized by the Attorney General. The Attorney General has exclusive authority to remit or mitigate forfeitures. United States v. One 1970 Buick Riviera, 463 F.2d 1168, 1170 including n. 2 (5th Cir. 1972); United States v. Fields, 425 F.2d 883, 885 (3d Cir. 1970); United States v. One 1971 Porsche Coupe Automobile, 364 F.Supp 745, 747 (E.D.Pa.1973). In our present case there is no showing that application for mitigation was made to or granted by the Attorney General.

The intervenor does not challenge the law as above stated but bases her claim for affirmance on her contention that the court gave the plaintiff the relief it requested. Such contention lacks merit. It is true the Government in its claim for alternate relief asked that in event the Toyota was awarded to anyone other than the Government that all costs be taxed against the person claiming the automobile. However, plaintiff’s complaint and prayer clearly reflect that the Government’s primary claim was for the forfeiture of the automobile, in accordance with law. The trial court in no way based its judgment on the ground that it was giving the plaintiff the relief requested. We find nothing in the record to indicate that the intervenor raised the pleading issue in the trial court. Moreover, Rule 54(c), Fed.R.Civ.P., provides in pertinent part:

Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

In our present case plaintiff has demanded forfeiture of the defendant automobile and plaintiff is entitled to such relief.

The judgment appealed from is reversed. The case is remanded to the trial court with direction to enter judgment of forfeiture in favor of the plaintiff.