text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry Dean TURNER, Defendant-Appellant.
    No. 74-1033.
    United States Court of Appeals, Tenth Circuit.
    April 8, 1974.
    John Street, Tulsa, Okl., for defendant-appellant.
    Nathan G. Graham, U. S. Atty., Ben F. Baker, Asst. U. S. Atty., Tulsa, Okl., for plaintiff-appellee.
    Before HILL, BARRETT and DOYLE, Circuit Judges.
   PER CURIAM.

Larry Dean Turner was convicted of transporting forged and stolen securities in interstate commerce, in violation of 18 U.S.C. § 2314. On appeal, he contends the trial court improperly allowed the government to cross-examine him about a plea of guilty that did not result in a conviction. We affirm.

During the course of the trial, Turner took the stand and testified. On cross-examination, and over objection, he was asked if he had pleaded guilty in state court to previous felony charges. The trial court ruled this evidence was admissible for the purpose of impeaching Turner’s credibility.

Turner’s guilty plea in the state court resulted in a deferred judgment under 22 O.S. § 991c (Supp.1973), which provides :

Upon a verdict or plea of guilty, but before a judgment of guilt, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place the defendant on probation under the supervision of the State Department of Corrections upon the conditions of probation prescribed by the court. Such conditions may include restitution when applicable. Upon completion of the probation term, which probation term under this procedure shall not exceed two (2) years, the defendant shall be discharged without a court judgment of guilt, and the verdict or plea of guilty shall be expunged from the record and said charge shall be dismissed with prejudice to any further action. Upon violation of the conditions of probation, the court may enter a judgment of guilt and proceed as provided in Section I of this act. The deferred judgment procedure described in this section shall only apply to defendants not having been previously convicted of a felony.

Because his guilty plea resulted in a deferred sentence and not a judgment of guilt, Turner contends, it was not a conviction and therefore was improperly admitted into evidence in the case before us.

It is a well settled rule of law that only previous convictions, and not previous acts of misconduct not resulting in conviction, can be used for impeachment purposes. Tafoya v. United States, 386 F.2d 537 (10th Cir. 1967). Turner correctly contends that a deferred sentence is not a “conviction” under Oklahoma law. Belle v. State, 516 P.2d 551 (Okl.Cr.1973). In so doing he evidently assumes the evidentiary question is to be resolved by Oklahoma law. But neither the statutes nor decisional law of the forum state control the admissibility of evidence in any phase of a federal criminal action. United States v. Woodall, 438 F.2d 1317 (5th Cir. 1970), cert. denied 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712 (1971); United States v. Montgomery, 126 F.2d 151 (3d Cir. 1942), cert. denied 316 U.S. 681, 62 S.Ct. 1268, 86 L.Ed. 1754. The principles of common law, as interpreted by courts of the United States in the light of reason and experience; govern over state law and precedent.

Federal cases interpret the common law as allowing evidence of other convictions for impeachment purposes, 8 Moore’s Fed. Practice 26-3 (Supp.1973), and hold that a guilty plea is a confession of guilt and amounts to a conviction. Dalton v. Hunter, 174 F.2d 633 (10th Cir. 1949), cert. denied 338 U.S. 906, 70 S.Ct. 301, 94 L.Ed. 557; Lindsay v. United States, 134 F.2d 960 (10th Cir. 1943), cert. denied, 319 U.S. 763, 63 S.Ct. 1316, 87 L.Ed. 1714.

We find that Turner’s guilty plea does amount to a conviction, and was admissible for impeachment purposes.

Affirmed.

      . “Q. Mr. Turner, I would like to direct your attention to Hughes County, Oklahoma and ask you if, on August 5th, 1971, in the District Court of Hughes County, you entered a plea of guilty to one or more felonies?
      A. Yes, sir.
      Q. How many, please, sir?
      A. Ten.
      Q. And what were those felony charges?
      A. Burglary, grand larceny.”

      . Rule 26, F.R.Crim.P., provides in part: “The admissibility of evidence . . . shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”


source: Caselaw Access Project

author: SETH, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Joe TRUJILLO, Appellant.
    No. 73-1935.
    United States Court of Appeals, Tenth Circuit.
    Argued May 15, 1974.
    Decided June 6, 1974.
    Jack L. Love, Federal Public Defender, Albuquerque, N. M., for appellant.
    Harris L. Hartz, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., with him on the brief), for appellee.
    Before HILL, SETH and DOYLE, Circuit Judges.
   SETH, Circuit Judge.

Joe Trujillo appeals from his conviction by a jury on separate counts of possession of heroin with intent to distribute and distribution of heroin, both in violation of 21 U.S.C. § 841(a)(1). The charges stem from an incident in which the appellant purchased eleven “caps” of heroin with $50.00 he had obtained from an undercover narcotics agent. Following the purchase he delivered eight of the caps to the agent.

At the trial, several relatives and acquaintances of the appellant testified to his extensive history of paint sniffing and alcohol abuse, and to his erratic and unpredictable behavior when subjected to the influence of those substances. The appellant testified that prior to the incident in question he had sniffed half a can of paint and consumed a quantity of wine as well as a Coke containing some unknown drug, and that he was experiencing the effects of that activity throughout the transaction. A psychiatrist testified for the defense that the appellant was probably having difficulty in understanding reality and distinguishing right from wrong as a result of the various substances he had consumed.

The prosecution presented testimony from the agents involved that the appellant had not behaved abnormally, and from a second psychiatrist that the appellant was probably capable of understanding and controlling his conduct at the time of the offense. At the close of the evidence, the court instructed the jury on the defenses of diminished capacity and intoxication.

The sole question we are asked to consider is whether the jury should have also been instructed that it might find the appellant guilty of mere possession in violation of 21 U.S.C. § 844(a) as a lesser included offense. The theory which the appellant advances is that the jury might have perceived his mental state to be such that he could commit the offense of possession, but would be incapable of the offense of distribution or possession with intent to distribute. We are convinced such a distinction cannot be made. Both section 841(a) and section 844(a) use the terms “knowingly or intentionally” in describing the mental state necessary to commit offenses thereunder. While the specific objectives of the two actions differ, we can develop no gradation from the mental capacity necessary to allow knowing or intentional possession to that necessary to allow knowing or intentional distribution or possession with intent to distribute. There may be circumstances in which the specific intent to distribute essential to an offense under section 841(a)(1) is in doubt, yet the fact of knowing or intentional possession established. Such might be the case if the defendant were found in possession of a suspiciously large quantity of narcotics. In that event a lesser included offense instruction enabling the jury to convict the defendant of mere possession might well be appropriate. See, for example, United States v. Owens, 344 F.Supp. 1355 (W.D.Tex.1972). However, such circumstances are not present in this case.

Whether by reason of intoxication, drug abuse, temporary or permanent insanity, the appellant’s defense was mental incapacity. The court properly instructed the jury on the law relating to this defense, and in so doing characterized it as an absolute defense. We agree. The defendant was either capable of committing an offense or he was not. The matter was for the jury to resolve. We can find no viable theory of partial responsibility which would excuse some but not all of the defendant’s conduct.

A lesser included offense instruction is neither necessary nor appropriate unless justified by the evidence. It is not to be used to inject the element of mercy. United States v. Sinclair, 144 U.S.App.D.C. 13, 444 F.2d 888; See also Hanks v. United States, 388 F.2d 171 (10th Cir.). We find no circumstances justifying such an instruction in this case.

The judgment is affirmed.


author: PER CURIAM.

text:
    SPEAKMAN COMPANY, Plaintiff-Appellant, v. WATER SAVER FAUCET COMPANY, INC., Defendant-Appellee.
    No. 73-1562.
    United States Court of Appeals, Seventh Circuit.
    Argued April 23, 1974.
    Decided May 28, 1974.
    Rudolf E. Hutz, Wilmington, Del., J. Terry Stratman, Chicago, 111., for plaintiff-appellant.
    Charles B. Spangenberg, Chicago, 111., for defendant-appellee.
    Before SWYGERT, Chief Judge, FAIRCHILD, Circuit Judge, and SOLOMON, Senior District Judge.

       Senior District Judge Gus J. Solomon of the District of Oregon is sitting by designation.

   PER CURIAM.

Plaintiff-appellant, Speakman Company (Speakman), is the owner of United States patent No. 3,090,050 (Fraser patent), which described and claimed an eye and face washing device for cleansing acid and other corrosive substances from the eyes and face in emergencies.

Speakman filed an action against defendant-appellee, Water Saver Faucet Company, Inc. (Water Saver), for patent infringement. Water Saver denied infringement and filed a counterclaim to have all the claims of the patent declared invalid for obviousness under 35 U.S.C. § 103. Water Saver also asserted that the claims of the Fraser patent were invalid because they covered an aggregation or combination of old elements in which the alleged improvement performed no new function in the combination and in which all the elements performed their known and expected functions.

Claim No. 3 is typical of the claims:

“3. A fountain for continuously washing human eyes which comprises in combination:
(a) a source of water under pressure,
(b) a basin connected to a drain, said basin being large enough to receive the human face,
(c) at least two aerating nozzles having a water conduit therethrough and air ports in the sides thereof,
(d) said nozzles being equally spaced from each side of said basin,
(e) a pressure equalizer having conduits therefrom to each nozzle,
(f) a conduit from the pressure equalizer to said source of water, and
(g) a means in said last mentioned conduit to initiate the water flow.”

Speakman admits that there were several prior patented wash devices using all of the elements of the Fraser patent except that the nozzles on each side of the basin, although pressure controlled, were not aerated. Aeration is also old in the art. Speakman admits that Aghnides patent 2,633,343 described and claimed aerators and that by the early 1950’s “many millions of aerators had been sold for use in household applications such as on kitchen and bathroom faucets.”

Speakman asserts that the addition of this aerator in the nozzle on each side of the basin made the combination a patentable invention. The trial court disagreed. It stated:

“The Fraser device, when considered in light of prior art available to this court, is merely an obvious combination of old elements. Logan and Benson provide the assembly for an eye and face bath. Logan even suggested the need for a gentle (i. e., low pressure) stream of copious water. The Haws catalogue bridges the gap by using a bubbler in this type of device. The prior art, therefore, not only taught every feature in claims 3, 6 and 8-11; it also taught how to combine them to achieve an aerated eye-bath. Faced with this evidence, we are of the opinion that any practitioner in the art, particularly one of ordinary skill, would have been able to achieve the combination claimed by Fraser. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., Inc., 396 U.S. 57, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969); Sutter Products Company v. Pettibone Mulliken Corp., 428 F.2d 639 (7th Cir. 1970).”

We agree with the trial court.

Speakman calls attention to the court’s erroneous statement that the bubbler used in Haws was aerated, which statement was based on a definition from a dictionary not in evidence that a bubbler is “any of several devices in which air or gas is bubbled through a liquid.” Speakman argues that this misapprehension of the Haws bubblers caused the court to erroneously conclude that the Fraser patent was invalid.

There is no merit in this contention. Whether the bubbler in Haws was aerated does not alter the basis of the court’s conclusion that Fraser is merely an obvious combination of old elements. The error was inconsequential.

The file wrapper of the patent application of Fraser discloses that the claims were rejected four times on the basis of Logan, patent 2,775,774, Benson, patent 2,482,960, and Aghnides, patent 2,210,846. Speakman appealed to the Board of Appeals, but approximately two years later Speakman withdrew its appeal. Instead, Speakman filed a continuation-in-part application containing more detailed claims but raising essentially the same issues as those presented in the parent application. Again the claims were rejected by a new examiner, but later the claims were allowed and the patent issued.

Like the trial court, we fail to find a basis for this change of position by the Patent Office.

We agree with the trial court’s conclusion that commercial success is no substitute for invention and that “given the nature of the prior art, that plaintiff’s device would have been obvious to a person having ordinary skill in the art at the time the invention was made and that the defendant has overcome the presumption of validity by clear and convincing evidence.”

The judgment of the District Court finding the Fraser patent No. 3,090,050 invalid is affirmed.


author: CONTIE, District Judge.

text:
    Diane M. PLACE, Plaintiff-Appellant, v. Caspar WEINBERGER, H. E. W., et al., Defendant-Appellee.
    No. 73-2037.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 11, 1974.
    Decided May 15, 1974.
    Irving M. Stahl, Detroit, Mich., on brief for appellant.

      Gwenn L. Carr, Detroit, Mich., for appellee; Ralph B. Guy, Jr., U. S. Atty., Gwenn Brown, Asst. U. S. Atty., Detroit, Mich., on brief.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CONTIE, District Judge.

       The Honorable Leroy J. Coutie, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.

   CONTIE, District Judge.

The plaintiff-appellant, a female employed in the Pure Food and Drug Administration, filed a complaint in Federal District Court on September 13, 1972, alleging she was discriminated against because of her sex in the following respects :

(a) Her request for promotion had not been acted upon as rapidly as those of men similarly situated;
(b) She was being denied administrative leave of compensatory time for attending graduate level classes for job-related training while men similarly situated were granted such time;
(c) She was being denied compensatory leave or overtime pay for work accomplished outside of official duty hours while men similarly situated were granted such time; and
(d) She was unable to obtain details within her agency for the purpose of on-the-job training and for the purpose of advancement, although male employees had obtained such information.

Previously, plaintiff-appellant had filed a formal complaint with defendant-appellee Equal Employment Opportunities Commission (hereinafter E.E.O.C. or defendant-appellee) on September 24, 1971. Said administrative complaint was denied for failing to show discrimination. An appeal was taken to the Board of Appeals and Review, which affirmed the findings of the E.E.O.C., said affirmation being made after the date of the adoption of Title 42 U.S.C. § 2000e-16(c). Plaintiff thereafter filed the instant cause of action in District Court.

Plaintiff-appellant asserts that her federal court action is brought pursuant to Title 42 U.S.C. § 2000e-16(c) which was enacted March 24, 1972, approximately six months after the filing of the formal administrative complaint. The United States District Court was thus confronted with a complaint filed after the enactment of § 2000e-16(c), but resulting from a formal administrative complaint which was filed before said enactment..

It is the claim of the plaintiff-appellant that jurisdiction of the federal court claim is based upon Title 42 U.S.C. § 2000e-16(c) and/or on Executive Order 11478.

Defendant-appellee, asserting that the federal court did not have jurisdiction under either § 2000e-16(c) or the Executive Order, filed a motion to dismiss or in the alternative for summary judgment in the district court. On July 5, 1973, the United States District Court sustained defendant-appellee’s motion for summary judgment. The District Court determined that the defense of sovereign immunity was applicable and that Title 42 U.S.C. § 2000e-16(c) did not apply retroactively. The Court further found that Executive Order 11478 did not give plaintiff-appellant subject matter jurisdiction. In argument before this Court plaintiff-appellant contends that Title 42 U.S.C. § 2000e-16(c) should be applied retroactively.

The District Court characterized Title 42 U.S.C. § 2000e-16(c) as the creation of new rights formerly barred under the doctrine of sovereign immunity. Plaintiff-appellant asserts that in view of the facts that the E.E.O. Act of 1972 does not contain a statement as to how said Act should be applied and since the purpose of the Act is remedial in nature, said Act should therefore be given retroactive effect. In the alternative, plaintiff-appellant contends that the District Court has jurisdiction of her claim by-reason of the Civil Rights Act of 1964. In support of this alternative claim the plaintiff-appellant cites the case of Davis v. Washington, 352 F.Supp. 187 (Dist.Ct.D.C.1972).

This Court first notes that the Civil Rights Act of 1964 did not grant the courts jurisdiction over litigation involving federal employees.

Further, the Davis case is totally distinguishable. In that case the District Court for the District of Columbia was attempting to determine whether a police force promotional test was discriminatory in effect. The court therein stated that:

“While, strictly speaking, the claims raised here by plaintiffs against these governmental employers were not governed by Title VII of the 1964 Civil Rights Act until it was recently amended, the Court, as the parties basically agree, looks to the Act . for guidance as to the constitutional constraints on a public employer.”

We agree that the claims raised by plaintiff-appellant are not governed by Title VII of the Civil Rights Act of 1964.

We also agree that the Davis case does not stand for the proposition that Title VII grants federal courts jurisdiction in sex discrimination cases. A careful reading of that case indicates that the court therein did not find jurisdiction under either Title VII of the Civil Rights Act or the E.E.O. Act of 1972. Rather, that court determined that having taken jurisdiction, it would look to the above mentioned acts for guidance and guidelines. Davis v. Washington, supra, at 191. Thus, we conclude that the Davis case is distinguishable and that the District Court does not have jurisdiction of plaintiff-appellant’s claim under the Civil Rights Act.

Turning to the issues of sovereign immunity and the retroactive application of the E.E.O. Act of 1972, this Court is convinced that the District Court properly granted defendant-appellee’s motion for summary judgment on the grounds of the applicability of the doctrine of sovereign immunity. The law in this area is clear.

Waivers of sovereign immunity must be strictly construed. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Furthermore, a law is presumed to operate prospectively unless there is a clear expression to the contrary. Hassett v. Welch, 303 U.S. 303, 58 S.Ct. 559, 82 L.Ed. 858 (1938). An examination of Section 14 and Section 11 of the E.E.O. Act of 1972 indicates that Congress provided that said Act “shall be applicable in regard to charges pending before the Commission.” Thus, Congress clearly intended certain portions of the Act to operate retroactively and so indicated. We therefore conclude that by its silence as to other sections Congress intended such sections to have prospective application only. In support of this conclusion we note that the District Court relied upon Mosley v. United States, Civil 72-380-S (January 4, 1973 S.D.Calif.) and Freeman v. Defense Construction Supply Center, C72-241 (S.D.Ohio Filed October 17, 1972), in which the Act was held not to apply retroactively. We are convinced that this conclusion is sound.

The plaintiff-appellant relies upon Walker v. Kleindienst, 357 F.Supp. 749 (D.D.C.1973), wherein the Court stated that the 1972 Act was remedial and amendatory and that the Act should be construed to cover pending charges of discrimination in federal employment. The District Court in the Walker case further stated that said Act takes away no substantive right, but merely changes the tribunal that is to hear the case. However, this Court cannot agree with this conclusion. See Freeman v. Defense Construction Supply Center, supra; Johnson v. Froehlke, C.A. 72-677(H), (D.Md. Jan. 4, 1973).

The District Court in the instant case further determined that the plaintiff-appellant had not exhausted her administrative remedies relative to acts which occurred after the enactment of Title 42 U.S.C. § 2000e-16(c) and that, therefore, plaintiff-appellant’s action was barred by reason of her failure to exhaust her administrative remedies. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). Plaintiff-appellant asserts that the requirement of exhaustion of administrative remedies should not apply when the exercise of such remedies would be futile. Ogletree v. McNamara, 449 F.2d 93 (C.A.6 1971). In support of this argument, plaintiff-appellant contends that her claim is one of continuing discrimination and that the issues already presented to the E.E.O.C. are “nearly” identical. Therefore, she concludes that the futility principle of Ogletree is applicable.

However, this Court is of the opinion that by the statement in the complaint alone, it must be assumed there are new acts of discrimination. Such new acts may be similar in nature, but could hardly be precisely identical in all respects. A claimant cannot avoid a* requirement of the Act by the self-serving determination that the new facts are similar to prior alleged discriminatory acts, and that accordingly the same result would excuse her from administrative review. The facts as alleged by the plaintiff-appellant in her brief are not identical but, in her own words, are “nearly identical”.

The plaintiff-appellant relies upon Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1970), to buttress her argument that the alleged acts are continuing violations and therefore are exempt from administrative procedures. The Griggs case is clearly distinguishable in that it does not involve sovereign immunity and was decided March 8, 1971. Further, said case was based upon acts of a private employer and the violation of Title VII of the Civil Rights Act of 1964. See United States v. Carpenters Local 169, 457 F.2d 210 (C.A.7 1972), and United States v. Virginia Electrical and Power, 327 F.Supp. 1034 (E.D.Va.1971). These cases do not relate to the issue of sovereign immunity prior to the 1972 enactment of the E.E.O. Act.

Plaintiff-appellant’s final contention is that Executive Order 11478 confers subject matter jurisdiction on the District Court. However, we conclude that said Executive Order does not contemplate judicial review. In the case of Gnotta v. United States, 415 F.2d 1271 (C.A.8 1969), which was cited by this Court in Ogletree, supra, Judge (now Justice) Blackmun ruled that Executive Orders 11246 and 10925, the predecessors of 11478, did not provide for a judicial review by civil action. The plaintiff-appellant however relies upon Chambers v. United States, 451 F.2d 1045, 196 Ct.Cl. 186 (1971), in which the court therein concluded that inasmuch as Congress did not exclude a judicial review, one should have been contemplated.

It must be unequivocally stated that Gnotta and Chambers are irreconcilably in conflict. The Court has difficulty in applying the Chambers reasoning that by failing to contain expressions of exclusion that the Congress intended that there be review. We prefer the dissent of the Chambers case wherein the Court stated that the Court did not have jurisdiction and that no statute of Congress granted any right in favor of anyone against the United States. We therefore conclude that Executive Order 11478 does not provide subject matter jurisdiction to plaintiff-appellant.

For the reasons stated above, the judgment of the District Court is affirmed.

       Equal Employment Opportunity Act of 1972, Pub.L.No.92-261, 86 Stat. 103 (March 24, 1972).


author: WEICK, Circuit Judge. PHILLIPS, Chief Judge

text:
    J. D. THORNTON et al., Plaintiffs-Appellants, v. EAST TEXAS MOTOR FREIGHT et al., Defendants-Appellees.
    Nos. 73-1353, 73-1354.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 11, 1974.
    Decided May 21, 1974.
    See also, 6 Cir., 454 F.2d 197.

      Anthony J. Sabella, Memphis, Tenn., Gerald D. Letwin, E.E.O.C., Washington, D. C., as amicus curiae for plaintiffs-appellants, cross-appellees; William A. Carey, Gen. Counsel, Joseph T. Eddins, Acting Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reisehel, Attys., E. E.O.C., Washington, D. C., on brief.
    Harry A. Rissetto, Washington, D. C., L. N. D. Wells, Jr., Dallas, Tex., Howard R. Paul, Memphis, Tenn., for defendants-appellees, cross-appellants; James W. Watson, Memphis, Tenn., (Watson, Lewis & Knolton, Memphis, Tenn., of counsel), Richard C. Hotvedt, Washington, D. C. (Morgan, Lewis & Bockius, Washington, D. C., of counsel), on brief.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CONTIE  District Judge.

       The Honorable Leroy J. Contie, Jr., Judge, United States District Court for the Northern District of Ohio, sitting by. designation.

   WEICK, Circuit Judge.

These appeals deal with complicated issues of appropriate relief in an employment discrimination action.

Plaintiffs filed a class action in the District Court alleging that defendants East Texas Motor Freight (Company), Teamsters Local 667 (Union), Southern Conference of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America violated Title VII of the 1964 Civil Rights Act by discriminatory practices occurring at the company’s Memphis Terminal.

The District Court granted motions to dismiss Southern Conference of Teamsters and the International Brotherhood of Teamsters, with the result that the case proceeded against only the company and the local union. No error has been assigned with respect to that order.

The company employs both city drivers and over-the-road drivers who operate between different states. Both types of drivers operate basically the same kind of equipment, namely, tractors and trailers. Road drivers work much longer hours and spend more time away from home. Road drivers earn about $16,500 per year, while city drivers earn $12,500 per year.

At the time of trial the company employed at its Memphis terminal 105 road drivers (all white), and 131 city drivers (of whom 43 were black). The two kinds of drivers were covered by separate collective bargaining agreements and were on separate seniority lists.

From 1954 to 1972 it was company policy not to permit transfers from the position of city driver to road driver. Beginning in January, 1972, the company changed its policy, and permitted transfers to road positions by city drivers, but those city drivers who transferred lost their seniority for bidding and layoff purposes, but retained their seniority for compensation and fringe benefits, such as pension, vacation, and welfare purposes.

The District Court found that the past policy of no transfer, although the policy affected whites and blacks alike, was racially motivated and was not justified entirely by business necessity. The company had hired no blacks as road drivers. As a result the District Court found a violation of Title VII, and entered an order specifying relief.

In regard to seniority the Court ordered that black city drivers who specifically requested a transfer or who filed a charge with Equal Employment Opportunity Commission (EEOC) were entitled, upon transfer to a road position, to have their seniority commence from six months after the date of their request but not earlier than January 2, 1966. Black city drivers who made no prior request to transfer were held, upon later transfer, to have their seniority in the road position to be considered from eighteen months after the time such black city driver had qualified to be a road driver, but no earlier than July 1, 1970. After two years of city driving an employee was presumed to be qualified for a road position.

The District Court also granted back pay relief to those black drivers who could show economic loss for discriminatory failure to grant a transfer request. The period for such claims was limited to a time period beginning January 1, 1966, and ending January 1, 1972. The District Court referred to a Magistrate the determination of the amount of back pay or seniority rights due to specific blacks.

The District Court ordered the company to rescind its no-transfer rule and enjoined it and the union from engaging in discriminatory acts and practices at the Memphis terminal. The Court assessed attorneys’ fees against the company and the union, and relieved nine union members from payment of dues for a certain period of time, and relieved other minority union members from sharing in legal expenses and costs.

The plaintiffs appealed, asserting that the remedies granted were insufficient. The union cross-appealed. EEOC, as amicus curiae, filed a timely brief, supporting plaintiffs’ claims of inadequacy of relief. Plaintiffs filed a non-timely brief adopting the brief of EEOC.

SENIORITY

EEOC urges that the District Court should have granted a full seniority carry-over for transferees. It contends that transfers without full seniority carry-over place a burden on those transferring and thus perpetuate past discrimination.

We reject EEOC’s argument. We think the wisest course lies in following the reasoning of Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973), which case involved a factual situation much like the one in the case at bar. In Bing the Fifth Circuit followed the “rightful place” theory enunicated in its prior decision in Local 189, United Papermakers, etc., AFL-CIO v. United States, 416 F.2d 980 (5th Cir. 1969). Under this theory the black city drivers would be given opportunity to move into positions they would have occupied but for the wrongful discrimination against them.

As far as seniority is concerned, the “rightful place” theory requires the giving of enough seniority to insure that a black city driver will achieve the advancement and bidding rights that he otherwise would have enjoyed, and also that those discriminated against will have the protection against layoff which they would have were it not for discrimination.

The position urged by EEOC is inconsistent with the “rightful place” theory when applied to our case. The approach suggested by EEOC would give to those who transfer to road positions more seniority than they would have had in the absence of discrimination.

In the present case a city driver was presumed to be qualified to be a road driver after he operated, as a city driver, equipment similar to the road equipment, for two years (absent a showing to the Magistrate of earlier qualification). If city drivers were not qualified to be road drivers until they had worked for two years on a city position, their job seniority in the road line positions should not be dated any time prior to the fulfillment of the two year period of qualification. As the Court said in Bing:

Before that date [of qualification] discrimination could not have blocked their employment as road drivers. (Id. at 451).

Having rejected EEOC’s claim, we must still evaluate the propriety of the seniority relief given by the District Court. That relief gave to those drivers who requested a transfer or who filed an EEOC charge, a seniority date of six months after the time of request or charge. Those drivers who did not so register an indication of dissatisfaction were given seniority from a time eighteen months after a time when they were determined to be qualified.

This seniority relief is different than that granted in Bing where all drivers, regardless of whether they had requested transfer or made complaints, were given the same seniority rights dating from the time they possessed the experience necessary for them to qualify for a road job. The theory justifying such relief was that it would have been futile to make a request for transfer. Action which is futile ought not to be required as a prerequisite to recovery. Jones v. Leeway Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970); United States v. Sheet Metal Workers, Local 36, 416 F.2d 123, 132 (8th Cir. 1969); Lea v. Cone Mills Corp., 301 F.Supp. 97, 102 (M.D.N.C.1969), aff’d in pertinent part, 438 F.2d 86 (4th Cir. 1971); Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967).

In the present case it is clear that attempted transfers were refused automatically until January 1, 1972; however, unlike Bing, a transfer request was not the only mechanism by which the District Court decided to measure seniority. The filing of a charge with EEOC also would establish a commencement date for seniority purposes. We cannot say that such a filing and following it with court action was a futile gesture, especially when the suit turns out to be successful. The District Court stated that one of its reasons for determining earlier seniority for those drivers who actively sought an end to the company’s no-transfer policy, was that such persons should benefit more “than those who were merely passive and indicated no particular desire to transfer or made no effort to bring about . an end to this restrictive policy.” (Memorandum Opinion, Dec. 28, 1972, at p. 7). We also think there is something to be said for rewarding those drivers who protest and help to bring rights to a group of employees who have been the victims of discrimination. Such a decision by the District Court can hardly be considered an abuse of discretion, which must be shown before remedial relief of a court can be overturned.

Moreover, in Bing there was only one charge filed with EEOC. In the case at bar twenty-one city drivers of both races filed charges with EEOC. The controversy involved both labor relations and a racial dispute. Given the large number of charges filed, we think the District Court was entirely within its discretion in not granting seniority relief like that granted in a case where silence and futility of protest was the norm.

It may be impossible to put persons in their rightful place in a factual situation such as this where only an approximation may be possible. For example, we do not think the seniority relief granted in Bing is a strict application of the “rightful place” theory. An employee might have become qualified to be a road driver on a given date, but he may have had absolutely no desire on that date to become a road driver. Yet the Bing decision gave that employee a seniority date as of the time of his qualification.

The rationale in Bing was that silence might be caused by a belief in the futility of a transfer request. That may be true, but also it may be caused by no desire to transfer. The District Judge is in the best position to determine this issue. On the facts of this case we cannot say that the District Court erred in finding that the “rightful place” theory could be best implemented by looking to time of application for transfer or time of filing of charge.

The only remaining question on seniority is whether the seniority date of those black city drivers who requested transfer or who filed a complaint, should be delayed six months from the date of request. We think that this was a discretionary matter with the District Court, and we can find no abuse of discretion.

The dissent recognizes the difficulties confronting the District Judge in fashioning appropriate relief under the facts peculiar to this case, which are not the facts present in other cases cited.

The jobs of city and road drivers were treated as separate units and were covered by separate collective bargaining agreements. The company had never permitted transfers of either blacks or whites from city to road driver jobs, so it cannot be said that this policy was aimed at blacks only. Furthermore, the Court found that no black driver had ever applied “off the street” for an over-the-road job. In determining seniority the District Court had to be very careful not to dislodge existing over-the-road drivers who rightfully held their jobs and were properly performing them.

The legislative history of Title VII, as pointed out in the dissent, shows a clear Congressional intent to lodge wide discretionary powers in District Judges in fashioning remedies. In our judgment the District Judge did not abuse his discretion in fashioning the remedy in this case.

BACK PAY

The District Court allowed back pay relief to those black city drivers who were qualified and desirous of transfer and who could show economic loss as a result of failure to be transferred. The Court limited the period of the back pay award form January 1, 1966 to January 1, 1972. The District Court referred the case to a Magistrate who was to determine the amounts due to given individuals. EEOC challenges various portions of the guidelines given to the Magistrate by the District Court.

Before discussing the various claims raised by EEOC it is important to establish our standard of review over this question. In Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973), this Court held:

Congress evidently intended that the award of back pay should rest within the sound discretion of the trial judge. (Id. at 876).

This holding establishes that whether back pay should be awarded at all is a matter of discretion. Likewise we feel that after the decision to award back pay has been made, the formula of computation and the determination of recipients are also matters within the discretion of the District Court.

The District Court limited back pay relief to those drivers who had indicated a desire to transfer to over-the-road positions. EEOC urges that all black city drivers who have transferred or who are interested in transferring, should be entitled to make a claim for back pay, irrespective of any previous desire to assume a road position.

The District Court was of the view that a driver’s past expression of interest in a road position served as a good criteria to determine who was actually injured by the no-transfer rule. EEOC contends that such a futile act should not be determinative of back pay eligibility. We think the District Court action may be supported on several grounds.

First, the order of the District Court did not make back pay relief awardable only to those employees who had formally requested transfer or who had filed complaints, but to those drivers who had indicated a desire to transfer. This provides a flexible standard for the Magistrate to apply, which standard will make allowances for informal indications of interest. Second, there was a large number of black and white city drivers who protested against the no-transfer rule. This case was a far cry from many reported cases wherein the clear futility of an action led to a general lack of protest. Third, the prospect of a large back pay award invalidates present intention as an accurate indication of past intention. An employee who may not have wanted on-the-road employment in the late 1960’s because of the increased number of hours of work and time away from home, might well change his mind now if the prospect of a large back pay windfall is present. We do not think that the District Court abused its discretion in finding that past actions and indications are more accurate indicators of past intention than present actions.

In its order granting relief the District Court allowed to employees who qualified and who desired transfer, back pay relief for a time period commencing January 1, 1966, and ending January 1, 1972.

EEOC contends that the commencement date should be July 2, 1965, the effective date of Title VII and the 1964 Civil Rights Act. The impact of the six-months delay is minor since only two road drivers were hired between the effective date of the Act and December 31, 1965. EEOC further contends that the ending date should be extended to the date when the Court makes a final award of damages.

In our opinion, these issues likewise involve matters within the sound discretion of the District Court. We find no abuse of discretion.

INTERIM EARNINGS

The District Court ordered that back pay was to be reduced by the claimants’ earnings during the relevant time period. There is no specific mention in the District Court’s opinion of whether moonlight earnings will be deducted. EEOC contends that moonlight earnings should not be deducted. This position is contrary to the holding of the Fifth Circuit in Bing (at page 454) that moonlight earnings were “interim earnings” within the meaning of 42 U.S.C. § 2000e-5(g). That Court pointed out that the road driver who works from sixty to one hundred hours per week is unable to moonlight. The city driver who works fewer hours on his regualr job is able to moonlight and earn more than the road driver. In our opinion the Fifth Circuit, in ordering the deduction from the damage claim of the amount of moonlight earnings, correctly applied the statute and reached a just and equitable re- ' suit.

NOTICE

In its order of December 28, 1972, the District Court gave to any affected party sixty days within which to file a written claim, generally stating the basis of his claim. On January 15, 1973 the company sent to members of the class a copy of the District Court’s order. The company’s cover letter stated that the order was attached and instructed the recipent:

Read the enclosed carefully and take such action as may be necessary to protect your interest, if any.

EEOC challenges the form of this notice, not the legality of the District Court’s requirement that the class members make a response of some kind. EEOC urges that the notice was defective in that the company’s cover letter failed to inform recipients that certain action on their part was required to protect their rights. EEOC relies heavily on the notice in Bing, supra, where the cover letter itself told the employees what they were required to do to preserve their rights. See Bing supra, n. 3 for the precise notice sent. EEOC argues that in the case at bar the cover letter gave no indication of how to proceed but merely referred the recipients to the order, one paragraph of which told them exactly how to protect their rights. EEOC contends that such notice is insufficient since the recipients are not sophisticated litigants and the steps they were required to follow were buried in the back of a technical, complex order. The company contends that the notice was sufficient since it was written in clear, understandable language.

In our opinion the District Court had authority to require a response to the notice. It was not claimed that these truck drivers could not read or write. The plaintiffs were represented by counsel who did render assistance in providing names. Paragraph seven of the District Court’s order gave plaintiffs a right to participate in the wording of the notice:

Plaintiff’s counsel will also, and E. E.O.C. may, assist in providing names of those to whom notice will be sent and content of the notice in order that such persons may pursue their claim for relief or remedy under the terms hereof.

EEOC claims it was never given an opportunity to review the notice. Even so, there has been no violation of the District Court’s order. Only the plaintiffs’ counsel had a right to participate. EEOC made no request to participate in the preparation of the notice, and its participation was not mandatory under the order of the Court.

There has been no claim that plaintiffs’ counsel failed to take part in preparation of the notice. He did co-operate in providing names and addresses. Never did he object to the form of the notice. EEOC, as amicus curiae, has no independent standing by which it can avoid facing the effects of any actions by plaintiffs’ counsel.

UNION’S APPEAL

The local union has cross-appealed. It does not challenge the seniority relief given, but it protests an assessment of attorneys’ fees against itself. It also challenges the District Court’s action in relieving certain plaintiffs from payment of union dues for a given time and in relieving minority union members of their obligation to participate in the sharing of the cost and expense of this litigation. Finally, it challenges the District Court’s order enjoining the union from engaging in acts of discrimination.

The union contends that the District Court had no jurisdiction because none of the plaintiffs filed a charge with EEOC. Such a charge is essential to jurisdiction. LeBeau v. Libbey-Owens-Ford Co., 484 F.2d 798 (7th Cir. 1973), and Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969).

When Thornton and the other plaintiffs first filed charges with EEOC in 1966 the company was the only named respondent. Fragmentary records of EEOC indicate that Thornton and some others of the plaintiffs filed charges with EEOC in 1968 against both the company and the union. There was testimony by certain employees that they had not filed EEOC charges against the union. Plaintiff Rector so testified and the records confirmed that Rector had not filed a charge against the union. However, an affidavit was filed by Director Dixon of the Memphis office of EEOC, which affidavit stated that Thornton and eight other persons had filed charges against both the company and the union in 1968, but that these charges had been lost. This officer did indicate that the “Charge Control Action Memos” kept on each charge in the regular course of the business were the only-existing evidence of the filing of these charges. Since the charges have been lost, we can only infer that they may have related to the same matter as the previous charges against the company.

There is no dispute that in 1969 Thornton and eight other plaintiffs received from EEOC right-to-sue letters, in which the local union was named along with the company.

The union argues that even if charges were filed, it never received notice of them. The District Court considered the issue of jurisdiction over the union and found that the union had participated in conciliation discussions before EEOC, and clearly knew of the charges of discrimination. The District Court also expressed the view that individual plaintiffs should not be penalized for administrative laxity or ineptness on the part of EEOC.

We are of the opinion that the District Court had adequate basis to assert jurisdiction over the union. The law is clear that there are only two requirements that plaintiffs have to meet in order to give the District Court jurisdiction over the union: 1- There must be a filing of a charge with EEOC naming the respondent; and 2- There must be a suit filed in Federal Court within thirty days of receiving the right-to-sue letter. Local 179, United Textile Workers, AFL-CIO v. Federal Paper Stock Co., 461 F.2d 849, 850, 851 (8th Cir. 1972); Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1140 (5th Cir. 1971); Dent v. St. Louis-San Francisco Ry., 406 F.2d 399, 403 (5th Cir. 1969).

In addition, service of the EEOC charge upon the named defendants is not a jurisdictional prerequisite to institution of an action in the District Court. John v. ITT-Thompson Indus., Inc., 323 F.Supp. 1258, 1260 (N.D.Miss.1971); Logan v. General Fireproofing Co., 309 F.Supp. 1096, 1099 (W.D.N.C.1969); Holliday v. Railway Express Co., 306 F.Supp. 898 (N.D.Ga.1969). The basic rationale relied on in these opinions is stated clearly in Quarles v. Philip Morris, Inc., 271 F.Supp. 842 (E.D.Va.1967):

The plaintiff is not responsible for the acts or omissions of the Commission. He, and the members of his class, should not be denied judicial relief because of circumstances over which they have no control. {Id. at 846-847).

There is no doubt that the right-to-sue letters were received and that the suit was timely filed. The only dispute is whether a charge was filed against the union. The control cards clearly show that the union was named as a respondent in an EEOC charge. These cards, combined with union participation in conciliation discussions, are sufficient to support jurisdiction.

UNION DISCRIMINATION

The District Court made the following finding with respect to union discrimination :

Under all circumstances, we conclude that the defendant union acquiesced in the “no transfer” rule in question probably because of the fear of offending its white road driver members, despite the fact that both black and white city drivers complained about this policy. (Emphasis added).

The union contends that this finding is not supported by substantial evidence and is clearly erroneous.

It is noteworthy that there is no evidence or finding that the union connived or conspired with the company, or with anyone else, to discriminate against the plaintiffs. As we will point out, it is indeed very questionable whether the union ever acquiesced, let alone acquiesced for fear of offending its white driver-members, who were just as much interested in eliminating the no-transfer rule as were the black drivers.

The District Court further found that no black person had ever applied to the company “off the street” for a road job. The gist of the plaintiffs’ case was that the no-transfer rule of the company was discriminatory as to blacks. The fact is, however, that the no-transfer rule was applied by the company indiscriminately against both white and black drivers since the rule was adopted in 1954 and until the rule was eliminated in 1972.

It is argued that the rule nevertheless perpetuated past discrimination against blacks. But this was discrimination by the company against blacks, and not by the union.

The employment of drivers for city and for over-the-road driving was a management function exercised exclusively by the company and without interference by the union.

Traditionally, from the inception of collective bargaining, city and over-the-road drivers have been placed in separate units for collective bargaining purposes. The National Labor Relations Board has long held that this separation was appropriate. In Re Georgia Highway Express, 150 NLRB 1649 at 1651 (1965). Separate collective bargaining agreements cover each unit. There was no proof that the race of the persons involved ever had anything to do with the establishment or maintenance of these separate units.

The company contended that it had a legitimate business purpose for the adoption of its no-transfer rule. Although the equipment operated by drivers in the two units was substantially the same, the duties of the drivers and the driving conditions were much different. The company offered proof of its accident rating as a result of its rule, which rating was only slightly higher than one-half of the national average accident rating in the trucking industry. The District Court said:

No doubt the company has good business reasons for maintaining separate rosters for these drivers for some purposes, but it is abundantly clear also that many black city drivers have been absolutely denied an opportunity to gain the much better paying road driver positions by reason of this policy until 1972.

The same could be said, with equal force, concerning white city drivers who were not permitted to transfer.

It should be pointed out further that the collective bargaining agreements which were entered into between the Southern Conference, the International Brotherhood of Teamsters, and the company, contained no provision prohibiting transfers. These agreements were submitted to and approved by the union membership in 1964, 1967, and 1970. There is proof, however, that in 1967 the local union submitted to the bargaining committee a proposal to eliminate the no-transfer rule, but the company declined to accede thereto. The Southern Conference and the International Brotherhood of Teamsters, which are responsible for entering into the collective bargaining agreements, have been dismissed from this case. The local union ought not to be held liable for any act or dereliction on their part.

None of the plaintiffs ever filed a grievance against the company on account of its no-transfer rule, nor did the plaintiffs or any union member ever request the union to process a grievance against the company. This would indicate rather clearly that the union members, including the plaintiffs, were well satisfied with the collective bargaining agreements.

Under these circumstances the union could not be held liable for failure to perform duties under the agreement, such as the duty to represent fairly its members. Dill v. Greyhound Corp. 435 F.2d 231, 237-238 (6th Cir. 1970); Balowski v. International Union, UAW, 372 F.2d 829, 834 (6th Cir. 1967).

Plaintiffs’ claim, however, is for discrimination in employment, and is not based on the collective bargaining agreements, but it is brought under Title VII. Such claim is not barred because of failure to pursue remedies under the collective bargaining agreement. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (decided Feb. 19, 1974).

The type of discriminatory activity for which a union may be held liable is portrayed in Steele v. Louisville & Nashville R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). This case is a far cry from Steele.

It is indeed a serious matter for a local union to be charged with discrimination against its own members on account of their race, in violation of Title VII, particularly when all the proof shows that it had knowledge of the employer’s alleged discrimination, and that it did not initiate any action to stop it until 1967.

None of the plaintiffs or other union members ever requested the union to take action. A strike could have been called against the company, but a union does not ordinarily resort to that drastic procedure unless its members want to strike. There is no indication in the record that the plaintiffs or the other union members wanted to strike.

We think the plaintiffs did exactly what they wanted to do, namely, they filed a charge against only the company in 1966. It was not until 1968 that charges were filed against the union, and we do not really know what the charges were because EEOC has lost them. When ruling on the 1966-charges on July 31, 1968, EEOC in its decision never mentioned the union. The local union was included only in the right-to-sue letter sent to the plaintiffs.

The plaintiffs do not need an injunction against the union. They have an injunction against the company which caused the alleged violation by adoption of the no-transfer rule.

The District Court allowed $6500-at-torneys’ fees to counsel for plaintiffs, of which $2,000 was to be paid by the union. The District Court, on remand, may require the company to pay the entire fee.

We do not think it was appropriate for the District Court to remit membership dues to some of the plaintiffs for a certain period of time. These members received the benefits of the collective bargaining agreements and have never questioned the agreements. Furthermore, these members made no claim for such relief, nor for the union not to use their dues to pay costs and expenses of this litigation.

We are of the opinion, for the reasons stated, that the finding of the District Court against the union, above set forth, is not supported by substantial evidence, and is clearly erroneous.

The judgment of the District Court is affirmed in case number 73-1353, and is reversed in case number 73-1354. The case is remanded for further proceedings not inconsistent with this opinion.

PHILLIPS, Chief Judge

(dissenting in part, concurring in part).

I respectfully dissent from those parts of the majority opinion that are labeled “Seniority” and “Back Pay,” and concur with the remainder.

In granting seniority relief, the District Court distinguished between those city drivers who had requested transfer by notifying the company or the local union or by complaint to the E.E.O.C. and those drivers who had not requested transfer. The former, if qualified for road driving at the time of the request, would be afforded a seniority date beginning six months after the initial request, but in no event earlier than January 2, 1966, six months after the effective date of Title VII. Those drivers who did not affirmatively request transfer would have seniority status from July 1, 1967, or 18 months after they became qualified for a road position, whichever is later.

My understanding of the Congressional intent in enacting the relief provisions of Title VII, 42 U.S.C. § 2000e—5(g), is that the victims of unlawful discrimination must be made whole and restored to the position where they would have been except for the unlawful discrimination. The Senate-House Conference Report for the relief section of the 1972 Amendments to Title VII states:

“The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present section 706(g) the courts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.” Section-by-Seetion Analysis, Congressional Record (H. 1863), March 8, 1972.

The courts have the power and responsibility to structure equitable relief that will eradicate the present and future effects of past discrimination. See e. g., Head v. Timken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973); Bing v. Roadway Express, Inc., 485 F.2d 441, 450 (5th Cir. 1973); United States v. Georgia Power Co., 474 F.2d 906, 927 (5th Cir. 1973); United States v. Local 212, Electrical Workers, 472 F.2d 634, 636 (6th Cir. 1973); United States v. Local 169, Carpenters, 457 F.2d 210, 216 (7th Cir. 1972); United States v. Hayes International Corp., 456 F.2d 112, 117 (5th Cir. 1972); United States v. Bethlehem Steel Corp., 446 F.2d 652, 660 (2d Cir. 1971). Although the nature of equitable relief under Title VII is discretionary, it must, nevertheless, be exercised in a manner consistent with the purpose behind the statute. Head v. Timken Roller Bearing Co., supra, 486 F.2d at 876-877; Moody v. Albemarle Paper Co., 474 F.2d 134, 141 (4th Cir. 1973).

Seniority may be largely determinative for bidding and layoff purposes. Relief that artifically limits seniority status maintains the status quo and operates to “lock-in” those employees who were victims of the unlawful discrimination. In my view, it is logical to conclude that employees with less seniority would be discouraged from transfer to road positions just as effectively as if the no transfer rule had remained in force. I consider such a result to be in direct conflict with Title VII in that it preserves the vestiges of past discrimination.

In my opinion it is necessary to provide the victims of the unlawful discrimination with that amount of seniority they would have had except for the discrimination. This amount of seniority will provide each such employee with enough incentive to transfer into a road position and will insure that he maintains his rightful place in the company by protecting him against layoffs. I, therefore, would adopt the “rightful place” theory announced by the Fifth Circuit in Local 189, Papermakers & Paperworkers v. United States, 416 F.2d 980, 988 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970), and recently reaffirmed in Bing, supra, 485 F.2d at 450-451, and structure seniority from the time the city driver became qualified for a road position. White incumbent road drivers would not be bumped out of their present positions and, therefore, should not complain of “being deprived only of that which they received as a consequence of discrimination.” United States v. Roadway Express, Inc., 457 F.2d 854, 856 (6th Cir. 1972).

In my judgment, this seniority relief should be available regardless of whether the employee requested a transfer to a road position or filed a charge with the E.E.O.C. The majority opinion states that “there is something to be said for rewarding those drivers who protest and help to bring rights to a group of employees who have been the victims of discrimination.” Any such “reward” should not be at the expense of the other victims of the discrimination. Title VII was enacted to protect all employees from unlawful discrimination. This is especially true where the discrimination intimidated the employees to such an extent that they felt it would be futile to request a transfer.

As stated in Bing, supra, 485 F.2d at 451:

“We recognize the logic of that argument, but it fails to account for the realities of entrenched employment discrimination. If an employee realizes full well that blacks simply are not hired as road drivers, why should he bother to apply? Certainly a few, such as Bing, have the courage to fight ‘the system,’ but it is equally certain that others must have been intimidated and discouraged by Roadway’s discriminatory practices. For that reason we believe it is an unsound policy to date transferees’ job seniority from their first application for transfer.”

The majority opinion distinguishes Bing, supra, on the basis of the number of charges filed. The opinion states: “Given the large number of charges filed [21], we think the District Court was entirely within its discretion in not granting seniority relief like that granted in' a case [Bing] where silence and futility of protest was the norm.” I view that as a distinction without a difference. This reasoning loses sight of the purpose behind the remedy provisions of Title VII. The statute was designed to make the discriminatees whole and applies especially to those who were totally and completely intimidated and who thought that any request would be futile.

The facts of this case indicate that such a belief was well founded. The no transfer rule had been in effect since 1954. Even the large number of transfer requests and charges did not cause the company to alter its position. It was not until the instant lawsuit had been in progress over two years that the company retreated from its no transfer rule. Even then, the rule that was adopted in January 1972, although permitting transfers to road positions, was discriminatory in its prohibition against full seniority carryover in that it denied any carryover for bidding and layoff purposes.

In the face of the company’s long history of discrimination it is no wonder that many city drivers were deterred effectively from seeking transfer to road positions.

With respect to back pay, the District Court allowed relief for black city drivers who were qualified, could show economic loss as a result of the no transfer rule and who had been desirous of transferring to road positions. This relief was limited to the period from January 1, 1966 to January 1,1972.

In Head v. Timken Roller Bearing, supra, this court said:

“Congress evidently intended that the award of back pay should rest within the sound discretion of the trial judge. Although appellate courts are loathe to interfere with the exercise of such discretion by a trial court, it is recognized that it is not free from appellate scrutiny.” 486 F.2d at 876.

Title VII became effective on July 2, 1965, and at that time all qualified city drivers had a legal right to road positions. Bing, supra, 485 F.2d at 453. Although an award of back pay is discretionary, the exercise of that discretion must have a reasonable basis in the record. There is nothing in the record to indicate to my satisfaction that the choice of January 1, 1966, as the starting date for back pay had any basis. Rather, it was chosen without explanation and in my opinion constitutes an abuse of discretion.

I would begin the period for back pay on July 2, 1965, the effective date of Title VII. See Head v. Timken Roller Bearing Co., supra, 486 F.2d at 878; Bing v. Roadway Express, supra, 485 F.2d at 453.

The date of January 1, 1972, was chosen because that was the day the company rescinded the no transfer rule. I am convinced that, nevertheless, it was an abuse of discretion to limit back pay to that date. The new transfer rule was still discriminatory in that there was no seniority carryover for bidding and layoff purposes. For some employees, this lack of carryover was just as effective a deterrent to transfer as was the no transfer rule.

Because of the prospect of a windfall, unlike seniority relief, I think it proper for back pay purposes to distinguish between those who had indicated a desire to transfer and those who did not. I would hold that those who had indicated such a desire prior to the District Court’s Order of December 28, 1972, are entitled to back pay from July 2, 1965, or the date the employee became qualified, whichever is later, until the date on which the employee was eligible to transfer with full seniority carryover, i. e., the date on which there were no longer any unlawful limitations. See e. g., Head v. Timken Roller Bearing Co., 486 F.2d at 875, 878. Those employees who z-did"not-vindicate a desire to transfer prior to the District Court’s order should be awarded back pay from the date they requested transfer, assuming they were qualified, until the date they were eligible to transfer with full seniority carryover. All payments should be contingent upon actual transfer, and, therefore, should be held in escrow until the road position opens up and the employee actually effects a transfer.

The E.E.O.C. contends that back pay relief should be given on an equal basis to those drivers who are willing to transfer now and do transfer even though they never indicated a past desire to transfer. They, in effect, argue that a present desire to transfer is an indication of past desire. The E.E.O.C. also favors back pay relief for those who had indicated a desire to transfer but no longer desire a road position.

The fallacy with the former position is that a present desire to transfer with the prospect of a back pay windfall is not a reliable indication of past desire. It would be an abuse of the court’s discretion and an inequitable use of the court’s power to sanction windfall payments. The error in the E.E.O.C.’s latter position is that a past desire to transfer when coupled with no present desire may be an indication that the employee never really wanted to transfer and, therefore, suffered no economic harm.

Only with the previously enunciated distinctions coupled with actual transfer can the court approximate the true intentions of the parties and provide equitable relief. Any broader relief would be punitive in nature and would not be consistent with the purpose of making the discriminatee whole. It is to be emphasized that equitable relief under Title VII is, at best, inexact. I believe that the back pay solution suggested in this dissenting opinion is fully consistent with the Congressional intent behind the back pay provisions.

      . The record includes a written decision of EEOC on charges filed by twenty-two named charging parties against the company, as respondent, dated July 31, 1968, concerning charges filed September 23, 1966. The union was not named as respondent in the decision, or even referred to therein. Charges allegedly filed in 1968 are not included therein. Charging parties Coleman, Nunnly and Miller, included in the Dixon affidavit, do not appear in the decision as charging parties. No written decision on the alleged 1968 charges appears in the record. Apparently all that EEOC did was to include the union in the right-to-sue letter.

      . For the same reason, the six month delay in seniority for those employees who had actually requested transfer or filed a charge with the E.E.O.C. was arbitrary and an abuse of discretion. Even assuming the date of the request was proper, seniority should not have been delayed six months,


author: J. JOSEPH SMITH, Circuit Judge:

text:
    Gerald SCHWARTZ, Plaintiff-Appellant, v. Marttie Louis THOMPSON, Counsel, et al., Defendants-Appellees.
    No. 847, Docket 73-2392.
    United States Court of Appeals, Second Circuit.
    Argued April 16, 1974.
    Decided May 21, 1974.
    Eugene F. Prosnitz, New York City, for plaintiff-appellant.
    Oscar G. Chase, Brooklyn, N. Y. (Terence H. Benbow and Steven A. Berger, New York City, on the brief), for defendants-appellees.
    Before KAUFMAN, Chief Judge, CLARK, Associate Justice, and SMITH, Circuit Judge.

       United States Supreme Court, retired, sitting by designation.

   J. JOSEPH SMITH, Circuit Judge:

This is an appeal from an order by the United States District Court for the Southern District of New York, Sylvester J. Ryan, Judge, dismissing appellant’s complaint challenging failure to promote neighborhood legal services attorney for want of both subject-matter jurisdiction and an actionable claim. We agree that appellant’s complaint does not state a claim on which relief may be granted and we affirm.

Appellant is an attorney who has spent the bulk of his six-year legal career on the staff of the Community Action for Legal Services (CALS) organization in New York City. Appellees, the General Counsel and officers of CALS, apparently concede that appellant has tenure and could not be discharged from that position without some type of hearing.

The issue here, however, is not termination, but rather promotion. Under the present system, each of the nine neighborhood corporations in CALS is free to hire and promote from those placed on a roster by the CALS central board. The board, in turn, has delegated its authority over the roster to an interviewing team of CALS attorneys, with final approval vested in CALS General Counsel, defendant Thompson.

In this case, the Bedford-Stuyvesant neighborhood corporation offered appellant a position as its Director of Litigation. But following a review of his employment file and an interview with the CALS attorneys, Mr. Schwartz was advised — without further explanation or hearing — that his name would not be added to the hiring and promotion list. Appellant was free to remain as a CALS staff attorney and has, in fact, done so for many months while pursuing this action.

Appellant advances no less than three bases for jurisdiction: The Administrative Procedure Act providing for judicial review of federal agency action, 5 U.S.C. § 702; the mandamus section of the Judicial Code, 28 U.S.C. § 1361, authorizing actions to compel “any officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff”; and the Civil Rights Act of 1871, 42 U.S.C. § 1983. While each statute presents a slightly different and rather novel variant of the governmental action question, all hinge on the alleged violation of appellant’s constitutional right to a due process hearing. Because we believe appellant had no such right in the context of this case, we find it unnecessary to consider further the troublesome issues of governmental action.

Both parties concede that appellant’s constitutional claim is governed by Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and both cite it as authority for their respective positions. Indeed, Roth does support each party to some extent.

First we agree with appellant that Roth, and its companion case Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), make it clear that where an employee must be accorded due process in a career decision, the right to a hearing of some kind is “paramount.” Roth, 408 U.S. 564, 569-570, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570. Assuming then that appellant was entitled to due process, we cannot say the procedures employed here were sufficient.

But as the Roth Court was quick to add, “the range of interests protected by procedural due process is not infinite.” 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548. Hearkening to the words of the Fifth and Fourteenth Amendments, Roth examined the parameters of “liberty” and “property” in the public employment context. Under the heading of “liberty,” the Court looked to the stigma that might result from a discharge :

The State, in declining to rehire the respondent; did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515; Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 219, 97 L.Ed. 216; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; United States v. Lovett, 328 U.S. 303, 316-317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252; Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 801, 99 L.Ed. 1129 (Douglas, J., concurring). See Cafeteria Workers v. McElroy, 367 U.S. 886, 898, 81 S.Ct. 1743, 1750, 6 L.Ed. 2d 1230. In such a case, due process would accord an opportunity to refute the charge.

408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548.

In Russell v. Hodges, 470 F.2d 212 (2d Cir. 1972), we noted that the authorities cited in this passage involved charges of chronic alcoholism or association with subversive organizations, and we therefore concluded that by “stigma” the Court was “thinking of something considerably graver than a charge of failure to perform a particular job, lying within the employee’s power to correct.” Id. at 217.

Here there is clearly no such stigma. Appellant has not been discharged; he has merely not been promoted. While a poor promotion record may in some circumstances indicate a lack of ability, such is clearly not the case here, since the position appellant seeks — Director of Litigation — rather obviously involved skills beyond those of a competent staff attorney. As appellant himself stresses, the CALS board has never suggested that his performance as an attorney has been less than adequate; and it has, in fact, continued to employ him in that capacity. Such continued employment in a position of both public and private trust is a far cry from the stigma necessary to invoke due process protections under Roth

There is similarly no merit in Mr. Schwartz’ contention that CALS deprived him of “liberty” by substantially curtailing “his freedom to take advantage of other employment opportunities.” Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. He is not foreclosed from all legal positions as were the plaintiffs in Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) — the case cited by Roth in this regard. Nor is he being denied access to the sub-sector of “poverty law” positions in New York City, for there are a number of such opportunities which are not governed by the CALS roster. (We are informed that just prior to oral argument plaintiff changed from CALS to another such employment.) Indeed, appellant is not even being denied such employment with CALS itself. All he is being “foreclosed” from is the narrow sliver of the legal profession consisting of the supervisory positions in CALS. We find that hardly the substantial deprivation of employment opportunities required under Roth for a due process claim.

Appellant’s contention that he has a “property” interest in a place on the CALS roster fares no better than his “liberty” theories. As defined in Roth:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548.

Appellant has no such entitlement. While one can conceive of circumstances where a promotion would be virtually a matter of right — for example, where it was solely a function of seniority or tied to other objective criteria — this is not such a ease. To be sure, appellant’s experience as a CALS staff attorney is an important consideration; but it is far from a complete qualification for the supervisory position of litigation director. Compare, Koseherak v. Sehmeller, 363 F.Supp. 932, 935-936 (S.D.N.Y.1973, 3-judge court), aff’d, 415 U.S. 943, 94 S.Ct. 1462, 39 L.Ed.2d 560, 42 U.S.L.W. 3480 (1974).

Nor is there any suggestion that the vast majority of staff attorneys are promoted to supervisory positions so as to create a de facto “right” to such advancement. Compare, Perry v. Sinderman, 408 U.S. 593, 601-603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In short, appellant’s inability to demonstrate any objective entitlement — formal or informal — to the supervisory position he seeks precludes any “property” interest requiring the protections of due process.

Since appellant was denied neither “liberty” nor “property” in being refused a place on the CALS roster, we find there was no constitutional need for a due process hearing.

The judgment is affirmed.

      . Appellant’s complaint does not allege that the CALS rostering procedure violates any federal or state statute or any regulation of its public patron, the Office of Economic Opportunity. Moreover, Judge Ryan expressly found no such violation.

      . Recently a bare majority of the Supreme Court has held that where there are adequate provisions for compensating the vietims of unjustified dismissals, only a post-termination hearing is necessary. Arnett v. Kennedy, - U.S. -, 94 S.Ct. 1633, 40 L.Ed.2d 15, 42 U.S.L.W. 4513, 4519-4520, 4531-4532 (1974) (plurality opinion of Rehnquist, J., in which Burger, C. J., and Stewart, J., join; Powell and Blackmun, JJ., concurring in part).
      Here, of course, there was no adversary hearing at any time.

      . Compare, Harnett v. Ulett, 466 F.2d 113, 117-118 (8th Cir. 1972) (no stigma where no specific charges were made); Lipp v. Board of Education of City of Chicago, 470 F.2d 802, 805 (7th Cir. 1972) (no stigma in a rating report that the employee was “anti: establishment”); Simard v. Board of Education of Town of Groton, 473 F.2d 988, 991-992, 992 n. 6 (2d Cir. 1973) (“doubt” expressed that numerous charges of insubordination would be sufficiently damaging); Olson v. Trustees of California State Universities, 351 F.Supp. 430, 432-433 (C.D.Cal.1972) (no stigma attached to the denial of a promotion) with Hostrop v. Board of Junior College District No. 515, 471 F.2d 488, 494 (7th Cir. 1972), cert. denied, 411 U.S. 967, 93 S.Ct. 2150, 36 L.Ed.2d (1973) (stigma found in charges involving the employee’s veracity and loyalty); McNeill v. Butz, 480 F.2d 314, 319-320 (4th Cir. 1973) (stigma present in charges of deliberate fraud); Suarez v. Weaver, 484 F.2d 678, 679-681 (7th Cir. 1973) (stigma likely in charges of medical malpractice); Snead v. Dept. of Social Services, City of New York, 355 F.Supp. 764, 771 (S.D.N.Y.1973, 3-judge court), appeal pending, 41 U.S.L.W. 3659 (1973) (stigma found in loss of employment for reasons of mental illness).

      . Compare, Board of Regents v. Roth, 408 U.S. 564, 573, 575, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (no foreclosure where the employee was barred from teaching at only one state university); Crabtree v. Brennan, 466 F.2d 480, 481 (6th Cir. 1972) (no right to work in a particular school district); Robinson v. Jefferson County Board of Education, 485 F.2d 1381, 3382 (5th Cir. 1973) (no foreclosure problem where a teacher was barred from a county school district). See also, Russell v. Hodges, 470 F.2d 212, 216-17 (2d Cir. 1972) (upholding discharges from the relatively specialized positions of narcotics corrections officer, hostler and transit policeman without discussion of any foreclosure problem).