author: FAHY, Senior Circuit Judge: MacKINNON, Circuit Judge

text:
    ANONYMOUS, Appellant, v. Henry A. KISSINGER, Secretary, United States Department of State, et al.
    No. 73-1141.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 24, 1974.
    Decided July 5, 1974.
    John E. Vanderstar, Washington, D. C., with whom Richard L. Dashefsky and Ralph J. Temple, Washington, D. C., were on the brief for appellant.

      N. Richard Janis, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and Ellen Lee Park, Asst. U. S. Attys., were on the brief for appellees. Earl J. Silbert, U. S. Atty., also entered an appearance for appellees.
    Warren E. Magee, Washington, D. C., filed a brief on behalf of the American Psychiatric Association as amicus curiae.
    Before FAHY, Senior Circuit Judge, and LEVENTHAL and MacKINNON, Circuit Judges.
   FAHY, Senior Circuit Judge:

This appeal is from a judgment of the District Court in a proceeding in which appellant unsuccessfully challenged the lawfulness of his dismissal as a temporary employee in a sensitive position in the Peace Corps, an agency in the Department of State.

Appellant moved for summary judgment, accompanying his motion with an affidavit of his own and another of his counsel. Appellees answered appellant’s Amended and Supplemental Complaint (the complaint) and also moved for summary judgment and to strike the affidavits. The motions of appellees were granted by the order on appeal.

I.

The following facts appear to the court to have been undisputed when the motions for summary judgment were decided. Appellant’s appointment in November, 1968, was designated as an “Emergency Appointment to Sensitive Position Pending Completion of Full Field Investigation.” His performance on the job was entirely satisfactory and his loyalty was not questioned. As part of a routine security investigation he had filled out Standard Form 86 when he had applied for employment. Question No. 19 on this form read:

Have you ever had a nervous breakdown or have you ever had medical treatment for a mental condition?

He answered, “No.” Although he had never had a serious mental illness or nervous breakdown, he told those conducting the investigation that he had on two occasions consulted psychiatrists briefly with minor complaints related to anxiety. On February 5, 1969, the security investigators subjected him to a humiliating and degrading interrogation dealing principally with his sex life. During this interrogation the investigators seemed to imply that appellant was maladjusted sexually based on his admission to them that he had two isolated homosexual experiences in early adolescence and that he and his wife had lived together from time to time before they were married.

About a month later the agency directed him to report to Dr. Francis Barnes, a private physician and the Peace Corps’ Senior Consultant in Psychiatry. Upon advice of counsel he refused to do so. He also rescinded a release he had previously signed during the interrogation agreeing to make available to the agency confidential medical information. He offered through counsel to have the doctors he had consulted submit written reports about him for the Government psychiatrist to review. The agency rejected this offer, as well as a subsequent offer by appellant to meet with the Government psychiatrist, accompanied by his counsel and his own psychiatrist. The agency, however, insisted upon an examination by a psychiatrist selected or employed by the Government and upon access to all appellant’s medical records in the possession of his psychiatrists. Appellant, deeming this an unwarranted invasion of his privacy, refused. During this period his attorney at the time stated in a letter of March 21, 1969, to the General Counsel of the agency, that an attorney in the office of the General Counsel said to appellant’s attorney that the agency was considering dismissing appellant because of “alleged homosexuality — or, in the alternative, his private sexual relations with his financee.”

During this month of March, 1969, appellant was advised by the agency that he would be dismissed if he did not release his medical records and submit to questioning by a Government psychiatrist. Thereupon, on March 26, 1969, appellant filed his original Complaint in the District Court seeking to enjoin such action and for related relief. No injunctive relief preventing, the agency notified appellant he was to be dismissed as of April 15, 1969, because of his “refusal to cooperate” in the Peace Corps’ efforts to resolve its doubts regarding his suitability for continued employment. See letter from Ruth L. Olson, Director of Personnel, to appellant.

II

The ruling of the District Court as to the reasonableness of appellant's dismissal assumes that his refusal to cooperate as requested was the actual reason for his dismissal. In so deciding the District Court disregarded the stricken affidavits of appellant and his former counsel, deeming the court to be bound by the administrative record as presented by the agency. Nevertheless, we think the record before the District Court on the motions for summary judgment justified the assumption we attribute to the District Court.

The complaint alleges that the letter from the Director of Personnel to appellant, note 7, supra, “falsely states that Plaintiff was discharged because of his ‘refusal to cooperate’ ” in the security investigation and that appellees had no just and proper cause to discharge him, the reason given being a subterfuge. The complaint did not assert any other basis for the dismissal. Appellant’s only allegations were to the effect that the facts demonstrated that he did cooperate to the extent that could be required consistently with his right of privacy. Moreover, in his affidavit accompanying his motion for summary judgment appellant alleges only that it was unfair and untrue to characterize him as uncooperative.

When his complaint was prepared and filed the record which had been presented to the District Court by the agency contained the letter of appellant’s former counsel of March 21, 1969, to the General Counsel of the Peace Corps, asserting that “Mr. Grove,” who was in the office of the General Counsel, “stated unequivocally that the reason for [appellant’s] pending discharge was alleged homosexuality — or, in the alternative, his private sexual relations with his financee.” The record also contained the General Counsel’s response of March 25, 1969, stating, “First, Mr. Grove has assured me that at no time did he state to you ‘unequivocally that the reason for [appellant's] pending discharge was alleged homosexuality — or in the alternative, his private sexual relations with his fiancee.’ . . . Although Mr. Grove may have indicated that a question had been raised as to [appellant’s] sexual behavior, he did not state that that behavior would form the basis for any administrative action concerning [appellant].” The letter also stated:

I would like once again to make the point that I made when we met on March 20 and at the beginning of this letter. The Peace Corps has no wish to discharge [appellant]. On the contrary, we have every hope that, with his assistance, the question which has arisen concerning his suitability can be resolved satisfactorily and his employment can be continued. It was because of our desire to be fair to [appellant] and, if possible, to retain his services, that an explanation of our concern was offered rather than merely terminating his appointment without explanation.

With the foregoing correspondence a part of the record, the complaint nevertheless proceeded solely upon the theory that appellant’s dismissal for “refus[ing] to cooperate” lacked support. The stricken affidavit of appellant’s former counsel, though under oath of course, adds nothing to the relevant factual situation which was in the record before the court. It merely repeats what is reflected in the correspondence above outlined.

Since the complaint itself places no reliance upon the sexual conduct of appellant as the basis for his dismissal, although the data with respect to that possibility was in the record filed by appellees, there was no necessity for the District Court to consider whether such conduct influenced the agency’s decision to discharge appellant. Appellant’s refusal to cooperate was well supported as the basis upon which the agency stated its reason for the dismissal. In addition to the sequence of events which immediately preceded the dismissal, namely, the explicit warning, and the forewarned dismissal three weeks later, the concluding paragraph of the General Counsel’s letter of March 25, 1969, expressed the hope that the question of “suitability can be resolved satisfactorily and his employment can be continued.”

Moreover, the letter of Ms. Olson accompanying the dismissal action states its purpose to be “to correct the allegations regarding our grounds for your separation found in your [original] complaint recently filed . . .,” namely, that he would be dismissed unless he waived his constitutional rights by consenting to further interrogation and by waiving his physician-patient privilege. The Olson letter carefully sought to justify the need for further information by explaining:

It is our obligation to resolve any doubts regarding the suitability for continued employment of Peace Corps personnel and we are unable to do so in your case because of your refusal to cooperate in this effort.

The most that can be said for the sexual aspect of the matter, in the limited scope of appellant’s challenge to his dismissal, is that it bore upon the agency’s reason for desiring further cooperation with respect to appellant’s psychiatric examination, rather than constituting a reason for his dismissal. As to the latter, we think no genuine issue of material fact barred summary judgment for appellees under the law applicable to the position, to which we now turn.

III

It appears that the only, protection his position afforded him is to be found in the Constitution, since neither statute nor regulation helps him. This contrasts with the situation recently considered by the Supreme Court in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). In the course of the several opinions in that case it is pointed out that one in a temporary position —or pending completion of investigation —is protected only by due process of law from patently arbitrary or discriminatory dismissal. He has that much protection because of the property interest incident to his position, even though it is of a probationary or non-tenured character. Thus, Mr. Justice White stated that while Congress may limit the total discretion of the Executive in dismissing an employee by providing, for example, that it must be for cause, and thus entitle the employee to a hearing, where the Executive’s discretion is not so limited a hearing is not required. Arnett v. Kennedy, supra, 416 U.S. at 181, 94 S.Ct. 1633. The Court so held in Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Nevertheless, “constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952) ; accord, Arnett v. Kennedy, supra, 416 U.S. at 183, 94 S.Ct. 1633 (White, J., concurring in part, dissenting in part); Slochower v. Board of Education, 350 U.S. 551, 556, 76 S.Ct. 637, 100 L.Ed. 692 (1956).

The question is whether the reason assigned by the agency for appellant’s dismissal — the “refusal to cooperate” — was patently arbitrary. We think not. Undisputed facts furnished a reasonable basis for the agency to explore further the emotional stability of appellant for the sensitive position involved. In so. viewing the matter, however, we do not decide that appellant was not qualified for continued employment. Our holding is quite limited: it is simply that the agency was within its rights to inquire further with respect to his emotional stability as an element of his qualifications for the sensitive position. We do not say that appellant’s answer to question 19 on Standard Form 86 was false, as the District Court put it (note 12, supra). Whether his visit to the psychiatrist for a temporary anxiety is “medical treatment for a mental condition” is arguable, and if anything the emanations of Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), suggest it might not have served as a basis for a false statement prosecution. But his admitted resort to psychiatric counseling, even though limited, furnished reasonable ground, without infringing his constitutional right to privacy, see Gayer v. Schlesinger, 160 U.S.App.D.C. 172, 182, 490 F.2d 740, 750 (1973), for the agency to seek the requested cooperation in order to obtain additional relevant information. We agree with the ruling of the District Court “that his discharge for refusal to cooperate was reasonable. . . .” The method of inquiry proposed by the agency, moreover, was not so unreasonable as to result in a deprivation of appellant’s property interest inconsistently with the Fifth Amendment. The agency would have been well advised in our opinion to have accepted one of the compromises proposed by appellant, without necessarily binding itself to its result, but our disagreement with the agency in this respect does not mount to constitutional significance.

We have been concerned about the proper judgment to be entered in this case. While the Government was entitled to summary judgment, there is at least one aspect in which the judgment entered by the District Court incorporates a premise of false answer which we do not think should be established as a court’s determination, and to avoid all possible questions about conclusiveness and finality, we think it appropriate in the interest of justice, 28 U.S.C. § 2106, to vacate the judgment and remand so that the court may re-enter a judgment on a basis which does not rest in part on a finding that appellant’s answer was false.

It is so ordered.

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

I concur in much of the foregoing opinion but would not go so far as to suggest that the agency should have accepted one of the compromises proposed by appellant. To my mind he was poorly advised by his counsel to refuse the request of the agency for an examination by the Peace Corps’ psychiatrist and for available medical data. When he refused the request for the information, which he had a right to do, he forfeited any right he had to retain his job. The request of the agency was clearly within its power and the circumstances required it to request such additional investigation and information. His answer to the question was sufficiently false to warrant further investigation. That it might not justify a conviction for perjury under Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), is beside the point. This is not .a perjury case. It is not even a criminal case. It is merely an effort by an agency of the United States to carry out its duty and obligation to staff its positions with competent, reliable people. I would affirm the judgment of the trial court.

      . Appellant was permitted to proceed without identifying himself on the public record. The record filed on this appeal remains under seal.

      . We do not consider that the action of the District Court jjrior to the filing of the Amended and Supplemental Complaint is before us in deciding the appeal, which is “from the order granting defendants’ [appellees’] motions (1) to strike affidavits filed by the plaintiff in support of plaintiff’s motion for summary judgment and (2) for summary judgment, and denying plaintiff’s motion for summary judgment, entered in this section on the 30th day of October, 1972.”
      Appellant’s motion was not only for summary judgment, but alternatively, if the court should find that there was a genuine issue as to any material fact, for an in camera hearing or remand to the Board of the Foreign Service, or other appropriate agency, for an in camera hearing on such issue or issues.

      . Each party also filed a statement of their version of the undisputed facts, appellees’ being designated as pursuant to Local Rule 9(h).

      . The position held by appellant was classified as sensitive pursuant to section 3(a) of Executive Order 10450, 3 C.F.R. § 936 (1949-1953 Comp.).

      . The first occasion was in the spring of 1967. His second consultation was at some time between September 23, 1968, when he executed Standard Form 86, and February 5, 1969, when he was interrogated by the security investigators.

      . The General Counsel in reply to the letter of March 21 states that the attorney in his office referred to denies such a statement was made.

      . This letter, dated March 28, 1969, reads:
      Personal
      T Address]
      Dear [appellant] :
      I am writing to advise you that your Peace Corps Foreign Service Reserve appointment will be terminated as of close of business April 15, 1969, for reasons set forth below, which have been explained to you and to your counsel, Monroe Freedman, Esq. Although under pertinent law and regulation no reasons need be provided for the separation of a Foreign Service Reserve Officer appointee, we shall do so in this case in order to correct the allegations regarding our grounds for your separation found in your complaint recently filed in the United States District Court for the District of Columbia.
      The emotional stability of employees who are to hold sensitive positions is of great interest to the Government as an employer. This is indicated by question 19 on the Standard Form 86 (“Security Investigation Data for Sensitive Position”) which you signed and thereby certified as being correct on September 23, 1968. That question is “Have you ever had a nervous breakdown or have you ever had medical treatment for a mental condition?” It is our belief, based on information you have provided, that your negative response was, at the very least, less than candid with respect to a fact material to your suitability for employment.
      The information you have provided regarding your past and present psychiatric treatment necessarily raises a question as to your suitability for the non-critical sensitive position in which you are employed. It is our obligation to resolve any doubts regarding the suitability for continued employment of Peace Corps personnel and we are unable to do so in your case because of yo-ur refusal to cooperate in this effort. Specifically, you have refused to authorize the release of information concerning medical treatment you have received in the past, and to discuss this issue with our own medical personnel. The duties of your position are such that their performance by an emotionally unstable employee would threaten a serious adverse effect on the efficiency of the service. (Emphasis added.)
      Sincerely,
      Ruth Olsen
      Director, Office of Personnel

      . The cases cited to us in support of the position of appellees respecting this limitation upon the District Court differ from the present case. In those cases the administrative records incorporated hearings at which the factual issues had been developed. No hearing was either required or held at the administrative level in appellant’s case. Appellant challenged in the District Court the official reason given in the administrative record for his dismissal, and contends that he cannot be precluded from a resolution of that challenge by an administrative record which omits the basis for the challenge and, on the contrary, supports only the agency-assigned reason. We do not pursue this problem further for the reason, now explained in the body of our opinion, that the record before the District Court covered the relevant substance of the stricken affidavits, that is, the alleged sexual motivation for the discharge.

      . In the stricken affidavit he added:
      I acknowledge that I have attempted to retain some degree of privacy for my deepest and most personal beliefs and attitudes, but I do not think any individual should be required to surrender his privacy to a nameless and faceless investigator. Despite my strong feelings on this subject, I offered through counsel to have the doctors I had seen write reports on me to the Government psychiatrist to be reviewed by him. ... It seems strange, to say the least, that in view of this it is I who should be characterized as uncooperative.

      . The record accompanied the Peace Corps’ motion to dismiss the original complaint.

      . The affidavit avers:
      * * * . * *
      3. ... I telephoned David Grove, Esq., an attorney in the office of the General Counsel of the Peace Corps. He stated that the agency was considering dismissing [appellant] because of alleged sexual conduct, although Mr. Grove mentioned both homosexual and heterosexual conduct. In a letter to me dated March 25, 1969, signed by the General Counsel of the Peace Corps, it is stated that Mr. Grove did not say this. I am completely clear, however, that he did. . . .

      . We so decide notwithstanding the District Court’s statement in its Memorandum ac- . companying its Order, “The plaintiff in this case attempts to obscure the real issue in this case when he claims that his discharge was motivated by sexual conduct,” for the court thereupon proceeds to state that the real question before the court is,
      whether a conditional appointee to a sensitive position with the United States Government who has falsely answered a question on a security questionaire may refuse to permit the Government access to relevant medical information and to submit to an interview (for nontreatment purposes) with a consulting physician and still retain his job.
      * * * * *
      . . . Under the particular facts of this case, the court holds that the agency requests were reasonable and relevant to plaintiff’s suitability for holding a sensitive position and that his discharge for refusal to cooperate was reasonable as well.

      . Appellant’s status is controlled by 22 U. S.C. § 1008 which provides:
      Notwithstanding the provisions of this or any other law, the Secretary may, under such regulations as he may prescribe, terminate at any time the services of any Reserve officer or staff officer or employee serving under limited appointment, except that, if the termination is because of misconduct, the provisions of section 1007 of this title shall be applicable.
      At no time did appellant, before the agency or in the District Court, advance the right to a hearing or other proceedings on the theory he was being charged with misconduct within the meaning of 22 U.S.C. § 1007. No suggestion to that effect .was made in appellant’s main or reply briefs in this court. It was mentioned during oral argument. In this situation we do not reach or decide the case on the theory of misconduct, and thus 22 U.S.C. § 1007 does not apply.
      22 U.S.C. § 1007 provides:
      (a) The Secretary may, under such regulations as he may prescribe, separate from the Service any Foreign Service officer, Reserve officer, or staff officer or employee, on account of the unsatisfactory performance of bis duties, or for such other cause as will promote the efficiency of the Service, with reasons given in writing, but no such officer or employee shall be so separated until he shall have been granted a hearing by the Board of the Foreign Service and the unsatisfactory performance of his duties, or other cause for separation, shall have been established at such hearing, unless he shall have waived in writing his right to a hearing. The provisions of this section shall not apply to Foreign Service officers of class 8 or any other officer or employee of the Service who is in a probationary status or whose appointment is limited or temporary, except when separation is by reason of misconduct. . . .

      . Section 763.1 of the Foreign Affairs Manual is as follows :
      Except when the separation is by reason of misconduct ... a staff officer or employee serving under a temporary or limited appointment may be separated at any time by a notice in writing.

      . At the same time, having in mind the considerate tone of the General Counsel’s letter of March 25, 1969, the parties could be given an opportunity to explore whether there still remains a possibility of disposition of the subject matter of this suit without even the stigma of a determination of a refusal on plaintiff’s part to cooperate, for we discern the possibility that the plaintiff’s actions may have reflected the strong legal position of his counsel, as to the ambit of his constitutional right of privacy, a point that this court finds is not without difficulty; and that the Government’s course may have reflected, in part, (a) an attitude toward plaintiff’s counsel, a possibility suggested by the denial of the accuracy of the assertions in the correspondence of plaintiff’s counsel concerning statements by Government counsel (see fn. 11 and text thereto), or (b) an assumption that plaintiff’s procedural proposals were unreasonable. Even if it should develop that the matter cannot now be resolved by agreement as to procedure, or by plaintiff’s acquiescence in the procedure which may be adhered to by the Government, the plaintiff may be able to propose an acceptable method of clarifying the administrative record to avoid the inference that lie was being contemptuous. We presume that at the very least the Government would agree to update his administrative record to reflect the course of this litigation, including our opinion, and it may be possible for the parties and the District Court to fashion some additional step in the interest of justice.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    O. Merlene KOVACS, and William Kovacs, Plaintiffs-Appellants, v. SUN VALLEY CO., INC., an Idaho corporation, Defendant-Appellee.
    No. 73-3079.
    United States Court of Appeals, Ninth Circuit.
    June 24, 1974.
    John K. Carmack of Roberts, Carmack & Johnson, Los Angeles, Cal., George A. Greenfield of McClenahan & Greenfield, Boise, Idaho, for plaintiffs-appellants.
    Carl P. Burke of Elam, Burke, Jeppesen, Evans & Boyd, Boise, Idaho, for defendant-appellee.
    Before ELY, HUFSTEDLER and CHOY, Circuit Judges.
   OPINION

PER CURIAM:

Mrs. 0. Merlene Kovacs slipped on a piece of ice and fell while descending an exterior stairway of a restaurant in Sun Valley, Idaho, owned by Sun Valley Co., Inc. She sued Sun Valley Co., Inc. in the district court for the District of Idaho for injuries she sustained from the fall, basing jurisdiction on diversity of citizenship.

She appeals from a judgment entered against her after a jury trial. We affirm.

Mrs. Kovacs alleges three errors requiring reversal. First, she contends the district court erred in refusing to allow her to introduce evidence that, subsequent to her accident, Sun Valley constructed handrails for the stairway in question. The district court correctly applied Idaho law in denying Mrs. Kovacs’ request for admission of this evidence. Generally, evidence of subsequent repairs is not admissible, reflecting a strong public policy against discouraging safety precautions. Carter Packing Co. v. Pioneer Irrigation District, 91 Idaho 701, 429 P.2d 433 (1967); Alsup v. Saratoga Hotel, 71 Idaho 229, 229 P.2d 985 (1951).

Idaho recognizés only one exception to this general rule: where the question of defendant’s duty to make the premises safe is at issue. Otts v. Grough, 90 Idaho 124, 409 P.2d 95 (1955); Zenier v. Spokane International Railroad Co., 78 Idaho 196, 300 P.2d 494 (1956) . Here, however, Sun Valley’s duty as an owner and occupier of land is not at issue.

Appellant urges this court to consider the law of states other than Idaho for the purpose of establishing an exception to the general exclusionary rule beyond the narrow exception recognized by the Idaho courts. This we refuse to do. Federal Rule of Civil Procedure 43(a) required that the district court apply the rules of evidence of the courts of general jurisdiction of the State of Idaho. It is not the province of a federal court to look beyond the designated state for the purpose of predicting changes which may or may not occur in that state’s law. Furthermore, it is entirely appropriate to defer to the judgment of the Idaho District Court judge who is familiar with the local law. Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345 (9th Cir. 1974); Hurst v. Dare to Be Great, Inc., 474 F.2d 483 (9th Cir. 1973).

Appellant’s second contention is that there was no basis in fact for the instruction on contributory negligence given by the trial court. We disagree. The record reveals sufficient facts upon which the trial court could properly base that instruction. Lord Baltimore Filling Stations v. Miller, 71 App.D.C. 376, 110 F.2d 698 (1940); Schultz & Lindsay Construction Co. v. Erickson, 352 F.2d 425, 430 (8th Cir. 1965); Fowler v. Uezzell, 94 Idaho 951, 500 P.2d 852 (1972).

Finally, appellant contends Instruction 20 in using the terms “hidden dangers” and “pitfalls” created the feeling that the duty owed to invitees by the proprietor of a business is very thin and almost nonexistent. Instruction 20 is a correct statement of the applicable Idaho law. Alsup v. Saratoga Hotel, 71 Idaho 229, 236, 229 P.2d 985, 989-990 (1951).

Affirmed.

      . The proprietor of a business is liable only for the injuries to his business invitees which result from his negligence, or the negligence of his employees which occurs within the scope of their employment. He has a duty to exercise reasonable care to keep the premises in reasonably safe condition for customers and others invited expressly or impliedly to enter.
      The duty of a proprietor to keep the premises safe for invitees applies to defects or conditions which are in the nature of hidden dangers; pitfalls and the like, and which are not known to the invitee and would not be observed by the exercise of ordinary care. The invitee with the usual and ordinary human senses is expected by the law to observe and act upon all normal, obvious and ordinary risks attendant from the use of the premises.


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Elfego R. SANCHEZ, Plaintiff-Appellant, v. TRANS WORLD AIRLINES, INC., Defendant-Appellee.
    No. 73-1820.
    United States Court of Appeals, Tenth Circuit.
    Argued May 17, 1974.
    Decided June 21, 1974.
    Emmett C. Hart, Albuquerque, N. M. (Lorenzo A. Chavez, Albuquerque, N. M. , on the brief), for plaintiff-appellant.
    William S. Dixon, of Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, N. M., for defendant-appellee.
    Before HILL, SETH and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

The action before the court arises under 42 U.S.C. § 2000e et seq. and 42 U. S.C. § 1981. It is an equal employment opportunity claim. The trial court dismissed the action and did so pursuant to a ruling by this court in Alexander v. Gardner-Denver Co., 466 F.2d 1209 (10th Cir. 1972). The court in this action rendered its decision August 29, 1973. Subsequent thereto, on February 19, 1974, the Supreme Court reversed our decision in the Alexander case in 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).

The basic issue before the trial court in the instant case, and that which was present in Alexander, was whether an employee’s right to pursue a remedy under the equal employment provision of the Civil Rights Act is alternative to arbitration proceedings under the nondiscrimination clause of a collective bargaining agreement and is thereby barred after an unsuccessful arbitration effort. Our decision in Alexander had held that these are alternative remedies and that both approaches could not be pursued. The Supreme Court disagreed, holding that these were independent remedies, both of which could be pursued.

But appellee airline contends that there are other grounds for affirming the trial court’s judgment (granting its motion for summary judgment). These are:

1. That appellant Sanchez did not file his claim within the statutory limitation period following the alleged unfair employment practice, as required by 42 U.S.C. § 2000e-5(e).

2. That appellant has no independent cause of action under 42 U.S.C. § 1981 because his ethnic origin is Hispanic rather than black.

We recognize that an appellate court may affirm a lower court judgment on a basis not relied on by the district court. See 10 Wright and Miller, Federal Practice and Procedure, § 2716 (pp. 439-441); Coleman v. Mountain Mesa Uranium Corp., 240 F.2d 12, 14 (10th Cir. 1956). See also Pound v. Insurance Co. of North America, 439 F.2d 1059 (10th Cir. 1971) and Texaco, Inc. v. Holsinger, 336 F.2d 230 (10th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 669, 13 L.Ed.2d 563 (1965).

Appellee’s position in regard to the limitation issue is that the alleged discriminatory practice occurred on October 14, 1970, and appellant did not file his EEOC charge until March 1, 1972 which, the argument continues, was beyond the statutory limitations. However, appellant was pursuing his rights during this period under a collective bargaining grievance procedure and where this is the situation most authorities hold that the limitation is' tolled. See Moore v. Sunbeam Corp., 459 F.2d 811, 826-827 (7th Cir. 1972); Malone v. North American Rockwell Corp., 457 F.2d 779 (9th Cir. 1972); Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970); Phillips v. Columbia Gas, 347 F.Supp. 533 (S.D.W.Va.1972), aff’d, 474 F.2d 1342 (4th Cir. 1972). The holdings of the cited cases to the effect that the statute is tolled are in tune with the construction given by the Supreme Court and other federal courts to this kind of a provision.

It does not appear to us, therefore, that there is a limitations problem and yet the record does not disclose the date on which the appellant commenced proceedings under the collective bargaining grievance machinery nor does it reveal the date that these proceedings were completed. The cause must, therefore, be remanded to the trial court for determination and findings on this issue.

As to the question whether appellant is free to pursue his remedy under 42 U.S.C. § 1981, we express no opinion because the trial court has not had an opportunity to consider this issue. In essence, the Act declares that all persons within the jurisdiction of the United States have the same right in every state to make and enforce contracts, to sue, give evidence and to enjoy full and equal benefit of laws as is enjoyed by white persons. On its face at least it seems thin to hold that because a Spanish speaking citizen is a Caucasian, thereby he cannot take advantage of this statute. However, since it has not been briefed by appellant, the question ought to be considered by the trial court on both the facts and the law.

The judgment is reversed and the cause is remanded for further proceedings in accordance with the views expressed herein.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Felix Humberto BRIGNONI-PONCE, Appellant.
    No. 73-2161.
    United States Court of Appeals, Ninth Circuit.
    June 14, 1974.
    Certiorari Granted Oct. 15, 1974.
    See 95 S.Ct. 40.
    John F. Cleary (argued), Frank J. Ragen, II, Federal Defenders, Inc., San Diego, Cal., for appellant.
    Stephen Peterson, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Donald F. Shanahan, Asst. U. S. Atty., Thomas M. Coffin, Asst. U. S. Atty., (argued en banc), San Diego, Cal., for appellee.
    Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, and SNEED, Circuit Judges.
   OPINION

ALFRED T. GOODWIN, Circuit Judge:

Felix Humberto Brignoni-Ponce appeals his conviction for transporting aliens in violation of 8 U.S.C. § 1324(a) (2). Two illegal aliens were discovered following a warrantless stop of his car near the San Clemente immigration checkpoint. The government contends that even if recent decisions by the Supreme Court and this court have stripped the Border Patrol of its authority to stop vehicles and search them for aliens, the Border Patrol still retains the authority, exercised in this case, to stop and interrogate any person believed to be an alien as to his right to remain in the United States. We reject that contention and reverse the conviction.

On March 11, 1973, the San Clemente immigration checkpoint, located in San Onofre, California, approximately 65 miles north of the Mexican border on Interstate 5 between San Diego and Los Angeles, was closed because of inclement weather. During the early morning hours, an agent of the Border Patrol was observing northbound traffic from his patrol car, parked at a ninety-degree angle to the interstate highway. Observing a passing vehicle whose occupants appeared to be of Mexican descent, the agent pursued the car and stopped it. Investigation soon revealed that the two passengers were illegally in the United States. They and the driver, Brignoni-Ponce, were then arrested.

In United States v. Peltier, 500 F.2d 985 (9th Cir. 1974) (en banc), this court held that the rule announced by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), applied retroactively to all cases involving roving-patrol searches which were pending on appeal at the time that Almeida-Sanchez was announced. However, in United States v. Bowen, 500 F.2d 960 (9th Cir. 1974) (en banc), we also held that, although searches by border-patrol agents at fixed checkpoints violated the Fourth Amendment, Almeida-Sanchez would not be applied retroactively to fixed-checkpoint searches conducted prior to the date of decision of Almeida-Sanchez.

The stop of Brignoni-Ponce’s car was made before the decision in Almeida-Sanchez was announced. The first question, then, is whether or not the stop was more like one by a roving patrol than one at a fixed checkpoint. Although we held in United States v. Morgan, 501 F.2d 1351 (9th Cir., 1974) (en banc), that searches at the San Clemente checkpoint were fixed-checkpoint searches rather than roving-patrol searches, Brignoni-Ponce’s car was not stopped at the checkpoint. Rather, because the checkpoint was closed and no marked barricades designed to impede vehicular traffic were in place, Brignoni-Ponce would have proceeded undisturbed except for the decision to pursue him. His car was overtaken and stopped north of the closed checkpoint. Although the line between a roving-patrol stop and a fixed-checkpoint stop is not a clear one, we hold that pursuing-a passing car and flagging it to the side of the road is conduct more characteristic of a roving-patrol stop than of a fixed-checkpoint stop. See United States v. Grijalva-Carrera, 500 F.2d 592 (9th Cir., 1974) (en banc); United States v. Bowen, 500 F.2d at 963-964.

The government contends, however, that even if this court holds that the stop was a roving-patrol stop,, that holding would not dispose of this case. It argues that Almeida-Sanchez, Peltier, Bowen, Morgan and Grijalva-Carrera all involved the constitutionality of searches without probable cause, pursuant to 8 U.S.C. § 1357(a)(3). This case, by contrast, involves merely a stop, pursuant to 8 U.S.C. § 1357(a)(1), for the purpose of interrogating a person believed to be an alien regarding his right to remain in the United States. In support of its argument, the government cites the recent decision by the Court of Appeals for the Tenth Circuit in United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973), holding that Almeida-Sanchez applied only to searches under § 1357(a)(3) and not to stops for interrogation under § 1357(a)(1).

We cannot adopt the approach taken by our brothers on the Tenth Circuit. Section 1357(a)(1), unlike § 1357(a)(3), has no requirement that the stop be within a “reasonable distance” from the border. Under the Tenth Circuit’s view, immigration officials could stop a vehicle anywhere in the country in order to interrogate its occupants as to their right to be in the United States, without a warrant, without probable cause, and without even a reasonable suspicion that any of the occupants are illegal aliens.

Such stops are entirely inconsistent with the Supreme Court’s opinion in Almeida-Sanchez. Although the facts of Almeida-S anchez called into question only that portion of § 1357(a) involving the Border Patrol’s authority to stop and search vehicles, the Court’s opinion reflects at least as much concern with the initial stop as with the subsequent search. See, e. g., 413 U.S. at 268:

“'!f * * It is undenied that the Border Patrol had no search warrant, and that there was no probable cause of any kind for the stop or the subsequent search * * (Emphasis added.)

And 413 U.S. at 272:

«* * * [N] either this Court’s automobile search decisions nor its administrative inspection decisions provide any support for the constitutionality of the stop and' search in the .present case * * (Emphasis added.)

The Court ended its opinion, 413 U.S. at 274-275, by quoting from Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), as follows:

“* * * it Would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise * * 267 U.S. at 153-154.

Had the Court intended to leave intact the government’s asserted right to stop cars on mere suspicion anywhere in the country in order to interrogate their occupants as to their right to remain in the United States, we doubt that it would have quoted this language from Carroll. Even more than immigration searches which had to be conducted within an area no more than 100 miles from the border, these immigration stops offend the “right to free passage without interruption” of “those lawfully within the country.”

Moreover, the Tenth Circuit’s position is inconsistent with settled law of this circuit. In United States v. Mallides, 473 F.2d 859, 861 (9th Cir. 1973), we held that the stop of a vehicle by police officers, even for the limited purpose of questioning its occupants, must be based upon a “founded suspicion.” See also United States v. Ward, 488 F.2d 162, 168-169 (9th Cir. 1973) (en banc). This holding was subsequently applied to investigatory stops by border-patrol agents. See, e. g., United States v. Mora-Chavez, 496 F.2d 1181 (9th Cir. 1974); United States v. Bugarin-Casas, 484 F.2d 853, 854 (9th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974).

Likewise, the Court of Appeals for the District of Columbia Circuit has held that immigration officials, in accordance with § 1357(a)(1), may make forcible detentions of a temporary nature for the purposes of interrogation under circumstances creating a reasonable suspicion, not arising to the level of probable cause to arrest, that the individual so detained is illegally in this country. Au Yi Lau et al. v. United States Immigration & Naturalization Service, 144 U.S.App.D.C. 147, 445 F.2d 217, 223 (D.C.Cir.) (later vacated as to one party only), cert. denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971).

Here, the border-patrol agents who stopped Brignoni-Ponce’s ear did not possess facts which constituted a founded suspicion that he or his passengers were illegal aliens. All that they knew was that Brignoni-Ponce and his companions appeared to be of Mexican descent and were in a sedan traveling north on Interstate 5, approximately 65 miles north of the Mexican border. This is not enough. As we said in United States v. Mallides:

"* * * [T]here is nothing suspicious about six persons riding in a sedan. The conduct does not become suspicious simply because the skins of the occupants are nonwhite * * 473 F.2d at 861.

We hold, then, that the stop and interrogation of Brignoni-Ponce and the passengers in his car were illegal, and the fruits of the illegal conduct were inadmissible. See United States v. Guana-Sanchez, 484 F.2d 590 (7th Cir. 1973), petition for cert, filed November 23, 1973 (U.S. No. 73-820).

Reversed and remanded.


author: McWILLIAMS, Circuit Judge.

text:
    Jane DOE, on behalf of herself and all others similarly situated, et al., Plaintiffs-Appellees, v. Paul S. ROSE, Individually and in his capacity as Executive Director of the Utah State Department of Social Services, Defendant-Appellant.
    No. 73-1736.
    United States Court of Appeals, Tenth Circuit.
    June 27, 1974.

      David S. Dolowitz, Salt Lake City, Utah, for plaintiffs-appellees.
    Willard Michael Howery, Asst. Atty. Gen. (Joseph McCarthy and William C. Loos, Asst. Attys. Gen., on the brief), for defendant-appellant.
    Before DURFEE, Judge, and HILL and McWILLIAMS, Circuit Judges.

       Honorable JAMES R. DURFEE, Court of Claims, sitting by designation.

   McWILLIAMS, Circuit Judge.

The issue here presented concerns the propriety of a so-called informal policy in Utah concerning abortions and the circumstances under which they would be paid for by federal-state welfare funds. Though the policy had not been reduced to writing, it nonetheless was followed by Paul S. Rose, the Executive Director of the Utah State Department of Social Services, in his administration of welfare monies.

Rose’s policy was that an indigent pregnant woman entitled to medical services and care for her pregnancy under the Medicaid program is not entitled to an abortion at the expense of Medicaid unless application therefor is approved by him, in his official capacity, in advance of the operation as being a “therapeutic” abortion. A “therapeutic” abortion, in turn, is defined by Rose as one necessary to save the life of the expectant mother or to prevent serious and permanent impairment to her physical health, and none other.

The trial court concluded, in effect, that such policy was certainly not required by either the state or federal statutes relating to medical care and services for the indigent, and that, on the contrary, under applicable federal statutes Rose was actually without authority to deny payment for abortions unless such were deemed therapeutic under his definition of that word. The trial court additionally held the policy to be at odds with the Fourteenth Amendment. Accordingly, the trial court enjoined Rose from enforcing his policy concerning abortions and when they would be paid for by Medicaid. As will be developed, we prefer to dispose of this appeal on constitutional grounds, and we affirm on that basis. Some background facts will place the controversy in context.

Jane Doe, Jane Roe and Jane Poe are all eligible for categorical assistance under Medicaid. At the time the present proceeding was instituted in the trial court, each was pregnant, Jane Doe and Jane Roe being in the second trimester of their respective pregnancies, and Jane Poe being in her first trimester. Each sought an abortion at the University of Utah Hospital, and in each instance the proposed abortion was approved by the hospital staff as being medically appropriate. However, the hospital authorities had been put on notice by Rose that there would be no reimbursement by Medicaid for any abortion unless an application therefor was made to him, Rose, prior to the operation and approved by him as being a therapeutic abortion. As concerns the proposed abortion of the three, though each had been deemed medically appropriate by the hospital staff, none was therapeutically necessary under Rose’s definition of that word. It was in this setting that the three pregnant women went to court.

Doe, Roe and Poe instituted the present action in the United States District Court for the Central Division of Utah on behalf of themselves and all others similarly situated. As indicated, the one defendant was Paul S. Rose, individually and in his official capacity as Executive Director of the Utah State Department of Social Services.

In their complaint the plaintiffs sought a declaration that Rose’s abortion policy be declared illegal and that Rose be enjoined from enforcing it. Upon hearing, after notice, the trial court granted a preliminary injunction enjoining Rose from enforcing the policy here in question, and plaintiffs Roe, Doe and Poe, and possibly others similarly situated, were then aborted. Later the parties agreed upon a stipulated statement of facts, and then each moved for summary judgment based on such stipulation. The trial court denied Rose’s motion for summary judgment, and granted the motion filed by the plaintiffs. In accord therewith the trial court then permanently enjoined Rose from refusing to disburse Medicaid funds for the payment of nontherapeutic abortions. Rose now appeals. We affirm.

At the outset, so far as we are advised the applicable federal statutes regarding Medicaid make no mention, as such, of abortions. Hence, we lack specific guidance as to whether Congress intended that abortions be covered by Medicaid and, if so, more critically, which abortions were to be covered by Medicaid benefits. The import, however, of the federal statutory scheme is that indigents who qualify for Medicaid benefits are to receive all necessary medical and hospital care, and in connection, therewith the respective states are empowered to impose reasonable standards for carrying out the objectives of the federal program.

The implementing state statutes of Utah, as well as the latter's state plan, submitted to and approved by the federal authorities, also make no mention, as such, of abortions. Hence, this is not an .instance where the administrative policy under attack is mandated by either state or federal statute. By the same token, in our view there is nothing in either the federal or state statutes which specifically bars the policy here followed by Rose. In this regard, we are mindful of the Supreme Court’s preference for statutory, as opposed to constitutional, resolution of welfare controversies. See Wyman v. Rothstein, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970). Nevertheless, in light of the applicable statutes’ complete silence on the abortion question, we prefer to dispose of the present appeal on constitutional grounds, rather than by any strained effort to show that the policy in question is, in effect, though not in so many words, prohibited by either federal or state statute. To reiterate, then, since the abortion question finds its first, and only, mention in the informal policy of Rose, this policy, and not any federal or state statute relating to Medicaid, is the heart of the present controversy.

We see no need to here review in detail the nature of the federal-state relationship in the broad field of welfare benefits for the indigent. It is sufficient to simply note that a state need not, in the first instance, participate at all in the various federal welfare programs, and that should a state decide to participate, then the degree of its participation is also a matter to be determined by the state. However, once a state elects to participate in a federal welfare program, it must follow federal statutes and regulations and must also administer the program in a constitutional manner. See Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), and King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). In fact, even a state welfare program funded entirely by the state must be administered in a manner consistent with the United States Constitution. New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973). At the same time, however, a state does have considerable latitude in dispensing its available welfare funds, and accordingly a state regulation concerning the disbursement of welfare funds which is “rationally based and free from invidious discrimination” will not offend the Constitution and is to be given effect. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

Proceeding from these general principles to the case at hand, we deem Doe v. Rampton, 366 F.Supp. 189 (D.Utah 1973) (three-judge court), to be particularly helpful in disposing of the present appeal. That case involved the constitutionality of a series of Utah statutes regulating abortions. Section 314 of the statute there under consideration declared, inter alia, that no public assistance grant, medical or otherwise, may be used for an abortion. This section further provided that no state funds could be used to pay for abortions unless the abortion was necessary to save the life of the pregnant woman or to prevent serious and permanent injury to her physical health.

In Doe v. Rampton, the aforesaid § 314 of the Utah statute was held to be unconstitutional under the Ninth and Fourteenth Amendments, the court stating that such provision is invalid because it would limit the exercise of the right to an abortion in all trimesters, -for reasons having no apparent connection to the health of the mother or child. And in that ease the court went on to declare in so may words that “the State may not use its Medicaid program to limit abortions.” We generally agree with these pronouncements.

In the instant case, we are concerned, not with a statute, but with an informal policy of the Executive Director of the Utah State Department of Social Services which is almost identical to the aforesaid § 314. Each would preclude an indigent pregnant woman from receiving an abortion at the expense of public welfare funds unless the abortion was necessary to save her life or prevent serious and permanent damage to her physical health, regardless of her trimester. If a statute to such effect is invalid, as was the holding in Doe v. Rampton, it would seem to logically follow that an informal policy to the same effect is also invalid. And we so hold.

Without analyzing in depth 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. 739, 35 L.Ed.2d 201 (1973), a contrary holding in the instant case would in our view fly in the face of those two cases. The Supreme Court’s decisions in Wade and Bolton clearly indicate that in the absence of a compelling state interest a state may not bar all abortions, except those necessary to protect the health of the mother, regardless of the trimester. A statute thus limiting abortions violates the constitutional right to privacy of pregnant women, at least those in their first or second trimesters, who during the first six months of their pregnancy have a qualified right to terminate their pregnancies. Cf. Buckley v. Coyle Public School System, 476 F.2d 92 (10th Cir. 1973), suggesting a violation of the privacy protected by the Fourteenth Amendment when a teacher must choose between pregnancy and employment.

Two analogous cases supportive of our disposition of this appeal are Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973), and Klein v. Nassau County Medical Center, 347 F.Supp. 496 (E.D.N.Y.1972) (three-judge court). In Hathaway, a challenge was made to a city hospital policy which barred use of the hospital facilities for the purpose of performing a consensual sterilization. In holding that such a policy was violative of the Equal Protection clause of the Fourteenth Amendment, the First Circuit observed that, after the Supreme Court decisions in Wade and Bolton, it is clear that in this type of case a “fundamental interest is involved, requiring a compelling rationale to justify permitting some hospital procedures and banning another involving no greater risk or demand on staff and facilities.” The First Circuit, recognizing, as do we, that questions of Equal Protection arise more frequently in the context of affirmative state sanctions, at the same time indicated that “any infringement of a fundamental interest, including a simple denial of a benefit must be carefully scrutinized.” In Hathaway the First Circuit then additionally commented as follows:

“In so holding, we are not mandating the city or state to maintain this hospital, or to retain its present size, staff or facilities. The hospital is not required to perform all kinds of nontherapeutic or even all therapeutic surgical procedures. We are merely saying, consistent with the Supreme Court’s reasoning in Shapiro [Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969)] with regard to welfare payments, that once the state has undertaken to provide general short-term hospital care, as here, it may not constitutionally draw the line at medically indistinguishable surgical procedures that impinge on-fundamental rights. * * * ”

In Klein, the challenge was to an administrative letter, apparently mandated by state statute, which -declared that “elective abortions not medically indicated” were not covered by Medicaid. The effect of such policy was that the only abortions paid for by Medicaid were those performed within twenty-four weeks from the commencement of the pregnancy where the life or health of' the mother or the unborn child were involved. In holding that such administrative directive thus limiting abortions would deny indigent pregnant women the equal protection of the laws to which they were constitutionally entitled, the three-judge court in Klein declared as follows:

“The directive, and the State statute, if interpreted as mandating the Commissioner’s directive, would deny indigent women the equal protection of the laws to which they are constitutionally entitled, They alone are subjected to State coercion to bear children which they do not wish to bear, and no other women similarly situated are so coerced. Other women, able to afford the medical cost of either a justifiable abortional act or full term child birth, have complete freedom to make the choice in the light of the manifold of considerations directly relevant to the problem uninhibited by any State action. The indigent is advised by the State that the State will deny her medical assistance unless she resigns her freedom of choice and bears the child. She is denied the medical assistance that is in general her statutory entitlement, and that is otherwise extended to her even with respect to her pregnancy. She is thus discriminated against both by reason of her poverty and by reason of her behavioral choice. No interest of the State is served by the arbitrary discrimination ; it reflects no genuine exclusion from benefit by operation of a classification founded on an identifiable state interest served by the denial of medical assistance. Certainly the denial of medical assistance does not serve the State’s fiscal interest, since the consequence is that the indigent may then apply for prenatal, obstetrical and post-partum care and for prenatal support for the unborn child. * * *” (Emphasis added).

Any suggestion here that Rose’s informal policy serves to protect the public fisc from expenditures for “unnecessary” medical treatment of indigents is unavailing. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), where “conservation of the taxpayers’ purse” was held not to be sufficient to meet the “compelling state interest” standard which must be satisfied where fundamental rights are concerned. In sum, then, there is nothing in the record before us to indicate that Rose’s informal policy concerning abortions stems from any “compelling state interest” or, under the more lenient' test, is otherwise “rationally based.” At least there is most certainly nothing in the stipulation of facts to indicate such. To the contrary, in our view the record only lends itself to the conclusion that Rose’s broad abortion policy is intended to limit abortion on moral grounds. Under the authorities above cited, such policy constitutes invidious discrimination and cannot be upheld under constitutional challenge.

Judgment affirmed.

      . Act of July 30, 1965, Pub.L. 89-97, Title I, § 121(a), 79 Stat. 343, as amended, codified at 42 U.S.C. § 1396 et seq. (1970).

      . In the trial court there was apparently no suggestion that this was a three-judge case under the provisions of 28 U.S.C. § 2281. In this court, though the appellant discusses the constitutional issue on its merits, he alternatively suggests that the constitutional issue should have been heard by a three-judge court, rather than a single judge. In our view, an informal policy of the type here involved which is not mandated by state statute is not within the purview of 28 U.S. 0. § 2281. We thus view the instant case as falling within an exception to the three-judge court requirement which arises when only erroneous administrative action, taken pursuant to an otherwise constitutional" statute, is challenged. Bee Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941); Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249 (1940); and Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1973).

      . The Supreme Court vacated the judgment in Klein, and remanded for reconsideration in the light of Wade and Bolton. See 412 U.S. 925, 93 S.Ct. 2748, 37 L.Ed.2d 152 (1973). However, because we find strong support in those decisions for our resolution of tlie case at bar, we are also of the opinion that the remand does not affect the viability of the language here quoted from Klein.

      . See in this regard the recent case of Doe v. Wohlgemuth, 376 F.Supp. 174 (W.D.Pa.) (three-judge court), decided May 3, 1974. which parallels both the constitutional issues presented to us and our resolution of them. In Wohlgemuth the following pertinent comment appears:
      “It must be noted that in dealing with the issues in this case we are precluded from the treatment of abortion on moral grounds, nor are we dealing with abortion in its criminal aspects. We must follow the course which recognizes that the law does not represent itself as a moral code, but rather, as a body of rules wherein the majority of the people impose their will, and, within constitutional limits, invade the freedom of the individual, in the interest of public health and welfare. Whatever may be the private view of the individual or group of individuals, or the members of this Court, we are bound by the now established principle of law that a negation of an individual’s choice in the matter of abortion during the first trimester of pregnancy is an unwarranted invasion of that person’s fundamental rights as established by the Fourteenth Amendment to the Constitution of the United States.”


author: LUMBARD, Circuit Judge:

text:
    FRIENDS OF THE EARTH et al., Petitioners, v. The U. S. ENVIRONMENTAL PROTECTION AGENCY and Nelson Rockefeller, in his capacity as Governor of New York, Respondents.
    No. 895, Docket 73-2038.
    United States Court of Appeals, Second Circuit.
    Argued April 24, 1974.
    Decided July 1,1974.

      Anthony Z. Roisman, Washington, D. C. and David G. Hawkins, Natural Resources Defense Council, New York City (Berlin, Roisman & Kessler, Washington, D. *'C., Cullen Phillips, David Sehoenbrod, Robert Rauch and Tom Powers, Law Student Assts., Natural Resources Defense Council, New York City, on the brief), for petitioners.
    Lloyd S. Guerci, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., Raymond N. Zagone, Atty., Dept, of Justice, Washington, D. C., on the brief), for respondent, Environmental Protection Agency.
    James P. Corcoran, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Irving Galt. and Philip Weinberg, Asst. Attys.,Gen;, on the brief), for respondent, Governor of the State of New York.
    Before LUMBARD and HAYS, Circuit Judges, and JAMESON, District Judge.

       Senior District Judge of the District of Montana, sitting by designation.

   LUMBARD, Circuit Judge:

Pursuant to § 307(b)(1) of the Clean Air Act, 42 U.S.C. § 1857h-5(b) (1), petitioners, a group of environmental and public interest organizations concerned with the quality of New York’s air, ask this court to review the approval of New York’s transportation control plan for the New York City metropolitan area by the Administrator of the Environmental Protection Agency (EPA). We grant review in part and deny review in part.

I.

By enacting the Clean Air Amendments of 1970, Pub.L. No. 91-604, 84 Stat. 1676, Congress amended the Clean Air Act, 42 U.S.C. §§ 1857-1858a, to require that states meet national standards for air quality within a few years. Briefly stated, under § 109 of the Act, 42 U.S.C. § 1857c-4, the Administrator is to promulgate national primary ambient air quality standards and national secondary ambient air quality standards. Primary standards are for protection of the public health, while secondary standards are for protection of the public welfare. On April 30, 1971, the Administrator promulgated primary standards for six air pollutants — particulate matter, sulfur oxides, nitrogen dioxide, carbon monoxide, hydrocarbons, and photochemical oxidants. Under § 110 of the Act, 42 U.S.C. § 1857C-5, the states after notice and public hearings were to adopt and submit to the Administrator, within nine months after promulgation of an air quality standard, a plan to implement the standard. Primary standards were to be implemented as expeditiously as possible but in any case within three years of the Administrator’s approval of the plan; secondary standards were to be implemented within a reasonable time. The Administrator can extend the period for meeting a primary standard by two years, upon application of the governor of the state, if certain sources of emissions are unable to comply with the requirement because necessary technology or alternatives are not available and if the state has considered and applied other reasonably available alternative means of achieving the standard and has justifiably concluded that the standard cannot be implemented in three years. If the state fails to submit a plan meeting the requirements of the Act, the Administrator is empowered to prepare and promulgate his own implementation plan for the state;

At issue here is New York’s plan to control transportation within the New York City metropolitan area as part of its effort to meet the primary standards for carbon monoxide, hydrocarbons, and photochemical oxidants. According to the implementation plan, motor vehicles are responsible for roughly 95 percent of the carbon monoxide emissions, 65 percent of the hydrocarbons emissions, and 50 percent of the photochemical oxidants. The controls on new automobile emissions mandated by § 202 of the Act, 42 U.S.C. § 1857Í-1, will only achieve about 40 percent of the reduction in pollutants necessary to fulfill the EPA’s primary standards. Therefore, New York’s implementation plan had to consider other methods of limiting or dispersing automobile emissions if the standards were to be met.

Earlier this year, we considered a challenge to the principal New York implementation plan, Natural Resources Defense Council, Inc. v. EPA, 494 F.2d 519 (2d Cir. 1974). That plan did not include transportation control measures because the EPA had advised New York and several other states that transportation control plans did not have to be filed until February 15, 1973, and did not have to meet the primary standards until May 31, 1977, allowing for the full two-year extension permissible under § 110. The reason for this advice was that the EPA and the states lacked practical experience in developing transportation control measures that would meet air quality standards. However, this blanket extension was challenged and in Natural Resources Defense Council, Inc. v. EPA, 154 U.S.App.D.C. 384, 475 F.2d 968 (1973), the District of Columbia Circuit held that, although the Administrator had acted in good faith, he had not met the requirements of § 110 in granting the two-year extension. He was ordered to rescind the extension and to require those states which had not yet submitted plans fully complying with § 110 to do so by April 15, 1973. These plans had to meet all requirements of § 110 and be capable of meeting the primary air quality standards by May 31, 1975. If extensions of up to two years were requested, the Administrator had to determine in each case that all requirements of § 110(e) for granting an extension had been met.

The EPA did rescind its extension and the State of New York prepared an implementation plan concerning transportation controls in the New York City area. The plan as adopted has four levels of strategies for reducing pollutants —primary stage strategies which have to be followed if the 1975 deadline is to be met, maintenance stage strategies which are of little effect in meeting the 1975 deadline but necessary to maintaining air quality after 1975, a contingency stage strategy which is required if primary stage strategies fail, and secondary stage strategies which may be beneficial but need further study. The primary strategies as listed by the plan together with the designation letter and number given to each are: vehicle turnover as new automobiles with emission controls replace old vehicles (A-l), retrofitting heavy-duty vehicles with catalytic converters (A-2); thrice yearly emission inspections of all livery vehicles (A-3); semi-annual emission inspections of heavy-duty vehicles (A-4); emission inspections of passenger cars (A-5); training of mechanics (A-6); maintenance and inspection of diesel buses (A-7); retrofitting of light-duty vehicles with catalytic converters (A-8); elimination of leaded gasoline (A-9); reciprocal retrofit and fuel regulations in New Jersey and Connecticut (A-10); enforcement of traffic and parking regulations (B-1A); traffic management (B-1B); selective ban on taxicab cruising (B-1C); reduction in the number of parking places in Manhattan business districts (B-3); expanded use of exclusive bus lanes and increased express bus service (B-5); staggering of work hours and days (C-8); and citizen participation in the planning process and public information (E-4). A contingency stage strategy would be to ban all private automobiles from Manhattan’s business districts (B-2). A table in the margin shows the reduction in air pollutants that New York expected each primary strategy to achieve, although it acknowledged that the success of any one strategy depended on the success of several others.

New York submitted the plan to the EPA on April 17, 1973, and in an accompanying letter Governor Rockefeller requested a two-year extension for meeting the photochemical oxidants standard and an eighteen-month extension for meeting the carbon monoxide standard. The letter explained that achieving the required standards required installing catalytic converters on all existing passenger cars and that it was not technologically feasible to do so since sufficient numbers of converters could not be produced and installed in time and their reliability was unproven. Also it was doubted that the petroleum industry could supply in time sufficient quantities of lead-free gasoline necessary for catalytic converters. Rockefeller added as new primary strategies a requirement that all 1975 model taxis be equipped with a “California package” for emission controls (A-ll), a requirement that deliveries to stores, factories, and office buildings be made after business hours (D-3), and a requirement that tolls be imposed on all East River and Harlem River Bridges (B-7).

On June 22, 1973, the Administrator approved New York’s plan and granted a nineteen-month extension for meeting both the photochemical oxidants and carbon monoxide standards. 38 Fed.Reg. 16560-61. He also promulgated amendments of 40 C.F.R. § 52.1670, a table that listed the dates by which New York had to meet air quality standards. Another regulation, 40 C.F.R. § 52.1683, was revised to require that New York submit by July 30, 1973 the legislative authority needed to carry out the strategies and by December 30, 1973 the necessary adopted regulations and administrative policies needed to implement such strategies. 38 Fed.Reg. 16567.

II.

What is the scope of judicial review in this case? For the most part we are concerned with whether the Administrator was correct in his factual determinations. It is settled that judicial review of these determinations made in approving state implementation plans is limited to determining if the findings were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). See, e. g., Delaware Citizens for Clean Air, Inc. v. Administrator, 480 F.2d 972, 976 (3d Cir. 1973). In making a finding on this issue a “court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). If the record does not disclose the basis of the Administrator’s determination, the court can ask him for a further explanation. Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 420, or if his findings are not sustained in the record, the court can vacate his determination and remand for reconsideration. Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). See Natural Resources Defense Council, Inc. v. EPA, supra, 494 F.2d at 525-526, 527.

III.

The first challenge, however, is to the legal sufficiency of New York’s implementation plan. It is argued that the plan is too vague because the strategies, in particular the reduction in parking strategy, do not indicate precisely what actions will be taken. In addition, it is claimed that the plan does not comply with the requirement of § 110(a)(2)(B) that it contain “emission limitations, schedules, and timetables for compliance with such limitations.”

On the first point we agree that the plan is not as specific as it could be. In discussing the parking strategy, the plan says,

Since parking policy is to be the primary strategy for reducing passenger car VMT [vehicle miles traveled] (by approximately 50 per cent in the Manhattan business districts), it is estimated that available parking spaces also should be reduced by 30 to 40 per cent. A practical approach to the goal is a strongly enforced, complete ban on on-street parking south of 60th Street in Manhattan during the business day, gradual reduction in the number of off-street parking spaces and a change in pricing policies to discourage passenger car . . . commuting rather than to encourage it. One third to one half of the remaining off-street parking spaces should be relocated to fringe lots along the Hudson riverfront. Jitney service for shoppers will be established between these lots and the business area.

The argument is that this statement and others like it are deficient in that there is no mention of what particular off-street facilities will be eliminated or how they will be selected.

The Administrator, however, has chosen to interpret the Act to allow states to postpone promulgating detailed regulations for several months after submission and acceptance of a plan, here December 30, 1973. The Administrator has said allowing postponement of regulations “does not defer the necessity for the States to choose their strategies and make firm commitments to put them into effect. It merely means that the detailed procedures involved can be approved later. If the plan did not provide adequate assurance that this later stage would be essentially procedural, so that substantial difficulties would not arise then, the plan was not approved.” 38 Fed.Reg. 16554.

We think that this interpretation of the requirements of the Act is a reasonable one and that we should defer to the Administrator’s judgment. After all, the Administrator has the difficult and complex job of supervising the implementation of plans to achieve air quality standards in all fifty states plus the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and American Samoa. See 42 U.S.C. § 1857h(d). The Administrator has not been rubber-stamping his approval of state transportation control plans. On June 22, 1973, out of transportation control plans for 43 regions, it was anticipated that all but nine would require some modification by EPA, and 24 would require substantial EPA modification or promulgation. See 38 Fed.Reg. 16554. The Administrator’s interpretation requires that there be sufficient commitment and detail so that achievement of the air quality standards are ensured. While New York’s plan does not commit itself to banning parking on any particular street, the EPA or a private citizen could in an appropriate enforcement action require New York to implement a plan reducing business district parking by thirty to forty per cent. So long as the plan is detailed enough that the Administrator can determine that the proposed strategies will achieve national air quality standards and there is no reason to believe that the delay in promulgating detailed regulations would interfere with the requirement that such standards be achieved “as expeditiously as practicable,” § 110(a)(2)(A)(i), we see no good reason not to allow a state some additional time to submit more specific details of their implementation plan.

As far as the alleged lack of schedules for implementation is concerned, suffice it to say that the plan does contain such schedules. While here too there may not be the detail petitioners would like, we think that it is sufficient for the purposes of the Act. Therefore, we do not agree with the petitioners on this point.

IV.

Petitioners’ next challenge accuses the Administrator of making three unjustified assumptions in approving the parking ban strategy which plays a major role in achieving the goal of a fifty per cent drop in passenger car VMT. It is claimed that the Administrator mistakenly assumed that without implementing the strategies the percentage of commuters using the various modes of transportation will remain constant. In particular it is argued that in the past fare increases have always resulted in decreased ridership on mass transit facilities and since the plan makes no provision for maintaining current fares, it is possible that fare increases could cause so many commuters to use their cars despite reductions in parking space that the parking ban strategy will not work. But the plan does not aim at attracting riders to mass transit; it admits that there is no sure way to do that. Rather it aims at compelling them to use other modes of travel besides private automobile by denying them parking space. Increased use of express buses with special highway lanes is intended to provide an accceptable alternative to those displaced. We, therefore, do not think the Administrator acted unreasonably in approving a plan that did not provide for maintaining current mass transit fares.

Another argument is that even if there is a reduction in parking spaces, there may not be a great enough decline in passenger car VMT because many commuters will park illegally anyway. The plan does admit that most cars parked on the street in the central business districts are parked illegally, but the plan also provides for stepped-up enforcement of traffic regulations by a paraprofessional staff. We think that the Administrator acted reasonably in concluding that increased enforcement would solve the problem.

Petitioners’ most troublesome challenge is that the Administrator assumed that the total supply of parking spaces in the central business districts is currently equal to the total demand. That this may have been assumed appears in an evaluation prepared by the EPA staff for the Administrator where it is said that it is assumed that a fifty percent reduction in parking places will result in a fifty percent reduction in miles traveled by passenger vehicles. Petitioners challenge this by pointing to a New York City intradepartmental memorandum, dated July 13, 1973, which found an average vacancy rate in midtown Manhattan parking garages of about forty-three percent. This means that a reduction in parking spaces may not achieve the fifty percent reduction in passenger car VMT that the plan hoped for. An even greater reduction in parking spaces may be necessary to achieve the desired reduction in VMT.

We do not conclude that the Administrator was necessarily in error. The relationship between parking spaces and VMT would appear to depend upon complex and varied factors, including, at least in part, public perception concerning how many parking spaces are available reasonably close to commuter destinations. But we believe that a further explanation by the Administrator is necessary. The petition for review of this point is therefore granted, and this matter is remanded for further explanation by the Administrator on why he concluded that the parking ban strategy would achieve its goals.

V.

The next challenge is that New York did not give adequate assurances that there would be sufficient funds to implement the plan. Although § 105 of the Clean Air Act, 42 U.S.C. § 1857c, allows the Administrator to make grants to defray part of the costs of achieving national air quality standards, the Act places primary responsibility for providing funds upon the states. Section 110(a) (2) (F) (i) requires that the state plan contain “necessary assurances that the State will have adequate personnel, funding, and authority to carry out such implementation plan.”

Here the Administrator has not explained how he determined that New York has provided the requisite necessary assurances concerning personnel and funding. The plan does provide a detailed list of what funds and staff will be' required in implementing the plan but does not say from where these resources will be derived. In his letter accompanying the plan, Governor Rockefeller stated that new funding was required and bluntly said, “Congress has mandated; Congress should provide the necessary funds.” We, therefore, cannot tell how the Administrator determined that there were adequate assurances.

In Natural Resources Defense Council, Inc. v. EPA, supra, 494 F.2d at 527, we faced a similar situation. Adopting the test announced by the First Circuit in Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 890-891 (1st Cir. 1973), we said that this situation calls for the Administrator’s reasoned judgment on the adequacy of state resources and directed the Administrator to provide a detailed statement of his rationale in determining that New York had provided the needed necessary assurances on funding and personnel. Since we do not know the basis of the Administrator’s determination on this matter, we again direct the Administrator to provide a detailed statement of his rationale on this matter.

VI.

As noted above, the Administrator granted New York a nineteen-month extension in meeting the photochemical oxidants and carbon monoxide primary air quality standards in the New York City metropolitan area. Before such an extension can be granted the Administrator must determine that one or more emission sources or class of sources are unable to comply with the plan which implements a primary standard because necessary technology or other alternatives are not available or will not not be available soon enough and that the state has considered reasonably available alternative means of achieving the standard. In addition the Administrator must determine that the remaining parts of the plan will be implemented by May 31, 1975, and that there are reasonable interim standards for those parts that cannot be implemented.

Petitioners do not challenge New York’s contention that there will not be sufficient catalytic converters available in 1975 to retrofit all passenger vehicles and heavy-duty vehicles. Instead they argue that New York has not exhausted all reasonably available means of achieving the standards by May 31, 1975. They offer five alternatives: a greater reduction in taxi cruising, increased car pool incentives, control of gasoline sales, elimination of commuter discounts for tolls on Hudson River bridges and tunnels, and expedited imposition of tolls on toll-free Harlem and East River bridges.

We faced a similar challenge in Natural Resources Defense Council, Inc. v. EPA, supra, 494 F.2d at 524-525, and said there that rather than have the Administrator disprove “a thousand negatives” to conclude that all reasonable alternatives have been explored, that petitioners must carry the burden of going forward with “a reasonable claim of something important overlooked.” We think it is clear that three of petitioners’ alternatives, increased car pool incentives, elimination of commuter discounts, and imposition of tolls on all bridges, do not meet this burden. There is no showing that these strategies would accomplish anything more than a successful parking ban strategy. Additionally, ending commuter discounts at Hudson River crossing apparently would have to be done by the Port of New York Authority, an independent organization formed by compact between New York and New Jersey.

A control on gasoline sales, if successful, would undoubtedly result in a decrease in VMT. The Administrator in his determination that an extension was called for did not specifically reject gasoline rationing. The evaluation of New York’s plan mentions gasoline rationing along with other alternatives, but states, apparently without support in the record, that once VMT is reduced fifty percent, the remaining VMT contributes little to the carbon monoxide problem.

We would therefore have difficulty in upholding the Administrator’s determination on this issue if he had not elsewhere provided an explanation. The EPA considered requiring limitation on gasoline supplies in the plans it proposed for several states whose plans were inadequate. The Administrator concluded that such limitations are not a reasonably available alternative sufficient to prevent an extension since “[t]he possibilities of evasion, the likelihood of noncompliance, and the difficulties of enforcement are too great to make this measure practicable.” 38 Fed. Reg. 30632 (Nov. 6, 1973). This explanation is a reasonable one and we see no reason to go through the formality of remanding this ease to the Administrator to receive a similarly worded explanation.

Finally, it is suggested that New York could ban all cruising by taxicabs looking for passengers. New York’s plan provides for a twenty percent cut in taxi cruising. The plan states that taxicabs contribute almost sixty percent of the vehicle miles traveled in midtown Manhattan and almost half this mileage is cruising without passengers. The plan estimated that a total ban on cruising in midtown could result in as much as a twenty percent reduction in carbon monoxide levels. The plan instead would institute only a partial ban on certain streets and relies on other strategies to achieve the primary standards. The reason a total ban was not instituted was taxi industry pressure. Originally a total ban was proposed, but in a compromise a partial ban was agreed to. The plan states, “The industry acknowledged that they would do almost anything to insure their freedom to cruise.”

While such a compromise would be acceptable if national primary air quality standards are achieved, the Clean Air Act does not contemplate allowing extension in achieving the standards merely because reasonably available means are unacceptable to any special group. See Natural Resources Defense Council, Inc. v. EPA, supra, 494 F.2d at 524; Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390, 411-412 (5th Cir. 1974). The twenty percent reduction in carbon monoxide mentioned in the plan would go a long way in making up for the unavailability of the retrofitting strategies.

This twenty percent figure, however, may be inflated since the plan says a one or two percent reduction will be caused by a twenty percent reduction in cruising. Furthermore, the requirement that all 1975 model taxis have the “California package” of emission controls conceivably could lessen the environmental impact that a ban on taxi cruising would have. The Administrator gave no explanation concerning this matter in approving the plan, and the EPA staff evaluation report only notes that the Department of Transportation has urged a more drastic ban and states that New York State should consider such a ban “in the event that additional reductions are deemed necessary as the attainment date approaches.” Which date, May 31, 1975, or nineteen months later is not made clear, and the EPA has not required that New York consider this matter before the May 31 deadline. We, therefore, must remand this matter for a further explanation by the Administrator on why he determined that a total ban, or a substantially larger ban than twenty per cent, on cruising of taxis was not a reasonably available means of achieving primary air quality standards by May 31,1975.

VII.

Finally, we are asked to order either the EPA or the State of New York to promulgate the detailed regulations for implementing the plans. Although required by 40 C.F.R. § 52.1683 to submit its legislative authority for carrying out its transportation control plan by July 30, 1973 and its detailed regulations and administrative policy by December 30, 1973, New York has apparently not complied. In November 1973 the Regional Administrator of the EPA sent a letter to Governor Rockefeller requesting a showing that the required legislative authority was not yet needed and requested submission of a new timetable for securing the required legislative authority. No answer was sent. On January 31, 1974, the Regional Administrator renewed this request in a letter to Governor Wilson and also said that the detailed regulations had not been submitted and must be submitted before the end of February or the EPA’s previous approval of the plan might be jeopardized. On February 18, Wilson sent a letter to EPA Administrator Russell E. Train saying that New York felt compelled by the energy shortage to delay implementation. Train’s reply of March 17 demonstrated that implementing the plan would save gasoline in New York, not expend it. He set before New York the alternatives of complying with its previous plan or attempting to revise the plan by April 15.

On April 1, Wilson raised some objections to EPA criteria for estimating future pollution levels and said he would seek revisions contingent upon getting federal financial assistance, further extensions, and change in the EPA criteria. Wilson also said mass transit aid was necessary. On April 23, Train replied hy saying the plan was enforceable until revised and the facts in Wilson’s letter would not support a revision anyway. He answered Wilson’s criticism of EPA criteria and said federal funding to aid in implementation would continue. Train agreed that aid to mass transit was desirable but said that it was the responsibility of other federal agencies. He also said that the State could raise funds for this purpose by imposing tolls on all East and Harlem River bridges. Furthermore, he stated that since New York had not demonstrated its resolve to implement the plan, the EPA must take action to assure compliance. For this purpose the matter was referred to the Regional Administrator.

At argument, the EPA joined in petitioners' request that we order New York to comply with the EPA regulation and begin implementing its plan. Although counsel for the respondent Governor did not argue against such an order, we have concluded that we lack jurisdiction to issue such an order. Our jurisdiction here under § 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b)(1), is limited to reviewing the correctness of the Administrator’s approval of the state plan. For this purpose, actual compliance with an adequate plan is irrelevant. Congress has provided in the Clean Air Act specific measures for enforcing the plan. Under § 110 the Administrator can promulgate a revised plan if the original plan proves to be inadequate and the state refuses to act. Under § 113, 42 U.S.C. § 1857c-8, the Administrator can bring suit in the appropriate district court to enforce his orders or an implementation plan. Finally under § 304, 42 U.S.C. § 1857h-2, private citizens, subject to whatever constraints the Eleventh Amendment may provide, can bring suit in the district courts to enforce implementation plans. By providing these methods, Congress must have intended that judicial enforcement of implementation plans be instituted in the district courts where a factual record can be developed. Accordingly, we decline to order New York to comply with the implementation plan.

VIII.

The petition to review is granted to the extent that the Administrator is required to explain further his determinations regarding the parking ban strategy, the necessary assurances concerning funding and personnel, and the twenty percent ban on taxicab cruising. In all other respects, the petition is denied.

So ordered.

      . This is a portion of the New Jersey-New York-Connecticut Interstate Air Quality Control Region for which the State of New York is responsible. See 40 C.F.R. § 81.13.

      . Presumably this was calculated before the Administrator delayed implementation of the standards required by § 202 until 1976 and set new interim standards. Presumably this percentage would now be lower. See 3 BNA Env.Rep. (Current Developments) 1512 (1973).

      . TABLE
      Impact of Primary Stage Transportation Control Strategies (1975 Emissions Relative to 1970 Emissions)
      PERCENT REDUCTION
      Strategy Carbon Monoxide Downtown Midtown Hydrocarbons-Oxidants Analysis Zone Nitrogen Dioxide Analysis Zone
      Stationary source
      Controls 4 4 18 11
      A-l 29 48 30 1
      A-2 21 8 6

      A-3 Included in Strategy A-l and A-8
      A-4 Included in Strategy A-2
      A-5 Included in Strategy A-l and A-8
      A-6
      A-7
      A-8 7 10 14 3
      A-9
      A-10 Included in Strategy A-l and A-8
      B-1A 7 5 2 1
      B-1B Included in Strategy B-1A
      B-1C 2 1
      B-3 8 2
      B-5
      C-8
      E-4
      TOTAL 78 78 70 16

      Needed 78 69 32

      Hydrocarbon emission’ reduction amounts to 8%; however, solvent reformulation will reduce oxidant concentrations by another 10%.

      01der vehicle operators will choose not to retrofit; therefore, reductions in vehicle miles traveled from these classes will occur. Emission reductions are estimated at 10% of the respective class total.

      Nitrogen dioxide emissions reduction through transportaron control measures will not achieve the up to 32% reduction. New York is awaiting guidance from the Environmental Protection Agency on sampling before imposing additional controls on oxides of nitrogen emissions.

      . In postponing the requirements under § 202 of the Act, see note 2 supra, the Administrator of the EPA imposed stricter controls on emissions for 1975 vehicles sold in California than for those sold elsewhere. This new strategy required that 1975 taxis be able to meet these stricter California standards.

      . Implementation of other strategies were later delayed until after 1975 as follows: Heavy-duty retrofit until December 1976, tolls of East and Harlem River Bridges to December 1976, mechanic training until December 1975, and emission inspection of heavy-duty vehicles until December 1976. Letter from Henry L. Diamond, Commissioner, New York Dept, of Environmental Conservation, to Robert Eri, Acting Administrator, EPA, May 16, 1973.

      . As will be seen below, however, New York did not submit these detailed regulations by December 30. While this failure to comply with the Administrator’s order may lead to appropriate enforcement action, we do not think that it contradicts our conclusion that allowing the state a delay of a few months in promulgating detailed regulations is a reasonable interpretation of the Act.

      . This memorandum, which was written after the Administrator approved the New York plan, is used by petitioners not to argue that there should be a reopening of the decision as was argued in Hudson River Fishermen’s Ass’n v. FPC, 498 F.2d 827, at 829 (2d Cir. 1974), but rather to convince this court in its initial review of the Administrator’s decision that he made a dear error in judgment in approving the parking ban strategy.