text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph DiVARCO and Joseph Arnold, Defendants-Appellants.
    No. 72-1804.
    United States Court of Appeals, Seventh Circuit.
    Argued April 26, 1973.
    Decided Aug. 14, 1973.
    Rehearing Denied Oct. 10, 1973.

      See also, D.C., 343 F.Supp. 101.

      Raymond J. Smith, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., William T. Huyck, Glynna W. Freeman, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before MOORE, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.

       Senior Circuit Judge Leonard P. Moore of the Second Circuit is sitting by designation.

   PELL, Circuit Judge.

The defendants Joseph DiVarco and Joseph Arnold were charged in separate counts of an indictment with willfully and knowingly making and subscribing to a false statement on their respective 1965 federal income tax returns, which returns were verified by written declarations that they were made under the penalties of perjury, in violation of 26 U.S.C. § 7206(1). The two defendants were also indicted for conspiracy in violation of 18 U.S.C. § 371 in that they conspired with Irwin Davis, an unindict-ed co-conspirator, in violation of 26 U. S.C. § 7206(1), to report a false source of income from Chemical Mortgage & Investment Corporation, of which Davis was a stockholder and agent, “so as to conceal from the Internal Revenue Service of the United States the true source of the income reported and to prevent examination by the said Internal Revenue Service as to the truth or falsity of the income reported.”

A jury found the defendants guilty as charged and each was sentenced to one year on the conspiracy count and to five years on probation on the substantive counts, the probation to run consecutively to the period of imprisonment.

On this appeal, appellants raise three separate grounds for reversal: the impropriety of prosecution under 26 U.S.C. § 7206(1) when there was no showing of an understatement of income; improper activity of the district judge; and the erroneous admission into evidence of defendant Arnold’s prior felony conviction.

I

Chapter 75, subchapter A, of the Internal Revenue Code of 1954, as amended, 26 U.S.C. §§ 7201-7241, is concerned with tax crimes. Sections 7201-7207, inclusive, which in the aggregate relate to attempts to evade or defeat tax, to failures to act, and to fraud, all include the word “willfully” in their respective contexts. Specifically, § 7206 is a felony statute and reads:

“§ 7206. Fraud and false statements.
Any person who—
(1) Declaration under penalties of perjury.
Willfully, makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter ....
-Jr * * * * -X-
shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.”

Appellants contend that since there was no showing by the Government that they had in fact understated their income, 26 U.S.C. § 7206(1) was not applicable and only the general federal false statement statute, 18 U.S.C. § 1001, related to their alleged misconduct. Prosecution under that section was allegedly barred by the statute of limitations. The district court in a memorandum opinion, United States v. DiVarco, 343 F.Supp. 101 (N.D. Ill. 1972), concluded that the source of income was a “material matter” and that the willful and knowing misstatement of the source of income was covered by the prohibition in § 7206(1).

It is true, as contended by the defendants and observed by Judge Will in his opinion, that most, if not all, of the cases involving misstatement of source of income also involved an understatement of taxable income. However, “[o]ne of the more basic tenets running through all the cases is that the purpose behind the statute is to prosecute those who intentionally falsify their tax returns regardless of the precise ultimate effect that such falsification may have.” 343 F.Supp. at 103.

We agree with and adopt Judge Will’s opinion as to materiality. The plain language of the statute does not exclude the matter of the source of income from the definition of “material matter.” In light of the need for accurate information concerning the source of income so that the Internal Revenue Service can police and verify the reporting of individuals and corporations, a misstatement as to the source of income is a material matter.

As to the defendants’ argument that they should only have been charged under 18 U.S.C. § 1001, “the choice lies with the Government, and it is not the privilege of the defendant to say that the Government should have proceeded under a different section.” United States v. Rayor, 204 F.Supp. 486, 489-490 (S.D.Cal.1962), appeal dismissed, 323 F.2d 519 (9th Cir. 1963), cert, denied, 375 U.S. 993, 84 S.Ct. 632, 11 L.Ed.2d 479 (1964).

Appellants also contend that, as in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943), it was incumbent on the Government to prove specific intent and evil motive and purpose. Since the Government never proved that appellants had other sources of income which they were seeking not to disclose, it is argued that the proof of evil purpose was insufficient. While Spies involved a violation of the predecessor to 26 U.S.C. § 7201, § 145(b) of the Revenue Act of 1936, which proscribed attempts to “evade or defeat any tax” and not false swearing on a return, nevertheless, it is clear that willfulness under § 7206(1) also requires proof of bad purpose or evil motive. United States v. Bishop, supra, 412 U.S. at 359, 93 S.Ct. 2008. This is not to say, however, that the evil motive must have been to evade the payment of taxes, which was what was involved in Spies. Here there was evidence from which the jury could have found, and apparently did, that the defendants reported income but falsely reported the source. Evil motive, of course, was not admitted. It seldom is. Of necessity, it is ordinarily proven by other evidence from which the inference may fairly be drawn that the evil motive existed at the pertinent time.

While the district court in its charge to the jury did not advert to bad purpose or evil motive in haec verba, we find no difficulty in discerning from the thorough coverage afforded by the instructions that the jury was told of the necessity of the mens rea. The following extracts from the charge sufficiently demonstrate the point:

“That is the statute. Any person who wilfully makes and subscribes any return, statement or other document which contains or is verified by a written declaration that it is made under the penalties of perjury and which he does not believe to be true and correct as to every material matter, shall be guilty of an offense against the United States.
•X- * *X* -X- * *
“Second, that the maker of the return did not believe the return to be true and correct as to a material matter. Obviously, that is what the statute says. Has to be a knowing and willful filing of a document which contains a statement which the maker does not believe to be true and correct.
* * * * -X- -X-
“If, on the other hand, you are not satisfied the government has established both of those propositions beyond a reasonable doubt, if they fail to establish either one, that is, that the return was false as to the source of the income, and that the defendant did not reasonably believe it to be true and correct as to a material matter, then you will find the defendant innocent, not guilty as charged.
-X- * -X- -X- -X- -X-
“I used the word ‘false’ for example, talking about a false statement. Well, false means a statement, if untrue when made and then known to be untrue by the person making it or causing it to be made. In law, false is something a little bit more than just an inaccurate statement. It is an inaccurate statement known to be inaccurate.
“People make inaccurate statements accidentally. That is not a false statement in law. That is just an incorrect statement, inaccurate statement. When you say ‘false’ you mean an inaccurate statement which the maker knows [is] inaccurate.
“I have talked about knowing and willfully. You should understand what knowing and willfully are all about.
“Well, they are just about what you think they are. Knowing and willfully means that you are doing something deliberately, not accidentally, not inadvertently, not mistakenly; that you are doing something — you know, the reason why we put this in the law is that people won’t be convicted for accidental, inadvertent, mistaken acts. They will only be convicted for doing something knowingly and willfully, deliberately, intentionally, with a purpose to do something which the law forbids, or to fail to do something which the law requires.
“Which brings me to the subject of intent.
“Under our system of justice, two things are required to make a person guilty of violating the law. He has to do an act and he has to do it with the requisite criminal intent. Specific intent is what is talked about in cases of this kind.
“As that term implies, specific intent means more than just the intention to do an act. It means not only the intention to do the act, but to do the act knowingly and knowing that it is an act which the law forbids, purposely. In other words, intending to violate the law.”

The evidence was more than sufficient to sustain the charge of violation of § 7206(1).

II

Appellants next contend that the district judge’s participation in the trial of this case violated the principles of fair trial enunciated in United States v. Hill, 332 F.2d 105 (7th Cir. 1964). In Hill, the district judge participated extensively in the cross-examination of the defendant and his witnesses while asking only two questions of Government witnesses, both of which brought out answers highly favorable to the Government. Further, the judge knew that the answers would be favorable as he had heard the testimony of the same witnesses in a previous trial. The case was a close one but this court held that “the cumulative effect of the Court’s questions and statements constituted prejudicial error requiring a new trial.” 332 F.2d at 107.

Although the district judge in the present case did not remain woodenly and silently on the bench, it is our conclusion, after reading the transcript of the trial, that his questioning of witnesses and his colloquies with counsel were for the purpose of clarifying the issues for the jury and expediting the trial. The case was not without complexity and the presentation of evidence could have resulted in confusion if the issues were not made clear. Thus, with respect to both the Government and the defendants, the district judge sought to explain to the jury the purpose of testimony which at times was only tenuously connected to the gravamen of the offense.

The district judge has a duty to see that the trial does not become confusing or repetitious. “A trial judge is

at liberty to question a witness to clarify a particular point, and where, as here, he does so without engaging in advocacy or displaying prejudice or partiality, no error can be predicated upon such examination.” United States v. Esquer, 459 F.2d 431, 435 (7th Cir. 1972). In fact, in Hill, supra, the court went even further by quoting approvingly from Gomila v. United States, 146 F. 2d 372, 374 (5th Cir. 1944), to the effect that “[i]n aid of truth and in furtherance of justice, the court may question a witness, — in fact, he may call and question a witness not used by either party . . . . ” A defendant does not have a constitutional right to a confused trial. The emphasis in all of the opinions in this area has been on the necessity for the trial judge to avoid any hint of partiality, for instance, either by questioning only defense or only prosecution witnesses or by eliciting only information favorable to the prosecution or by appearing to disbelieve the testimony of any witness.

The district court judge made it clear to the jurors that they were to decide the case. “I will save you the trauma and strain of trying [to figure out how the judge would decide it] because I will tell you right now what I think the verdict in this case should be; and I believe the verdict in this case should be what the 12 of you unanimously decide it is, and that is all.”

Nevertheless, because of' the gravity of the charge that “the trial court’s extensive participation in the trial of this case was contrary to the principles enunciated [in Hill],” we have examined each of the claimed instances of improper judicial intrusion. These, of course, should not be considered in isolation but in the context of the testimony and trial proceedings as a whole. On that basis we reach the same conclusion this court did in United States v. Cassell, 452 F.2d 533, 537 (7th Cir. 1971): “We are not persuaded the questions asked were improper as an abuse of discretion or a violation of judicial ethics. The questions were for the purpose of expediting the trial and clarifying testimony and therefore proper.” Our examination of the record does not convince us that the jurors could upon any reasonable basis have concluded that the judge was other than fair and impartial.

We have not deemed it necessary to extend the length of this opinion by a detailed recital of the claimed transgressions of the trial judge. However, we do note specifically two matters not connected with questions during the course of the trial.

The first of these matters appears to resolve itself into a complaint that the judge had provided the Government with an additional theory of liability which culminated in an instruction. The language of the instruction was not suggested by any of the parties; however, we are unaware of any basis for declaring an instruction improper because it is phrased in the court’s own words. The instruction complained of did nothing more than analyze steps in resolving the basic issue in dispute as to whether or not the defendants reasonably believed that the income they had reported as coming from Chemical Mortgage & Investment did in fact come from that source.

Secondly, the trial judge had conducted a private voir dire of each juror concerning possible prejudice from extensive media coverage of the trial. However, it was the defense counsel who had suggested the necessity of such an inquiry, and he also agreed that no court reporter need be present. Our consideration of the judge’s report of the colloquy with one of the jurors leaves us unimpressed with the appellants’ contention that the judge somehow improperly commented on the evidence to that juror. We note particularly that trial counsel made no objection at that point to the reported colloquy and at the conclusion of the report expressed his satisfaction with the inquiry and the jury.

Ill

The final ground for reversal raised on this appeal concerns the admission for impeachment purposes of Arnold’s prior felony convictions. Arnold had three previous convictions, one in 1927 for automobile theft, one in 1935 for postal extortion, and one in 1948 for violation of the Dyer Act. The district court judge ruled that he would permit impeaching questions to be asked about the latter two convictions but that the first conviction, which occurred when the defendant was eighteen years old, was too remote and was therefore inadmissible. He indicated he would give a cautionary instruction on the two convictions which he would admit. Defense counsel then requested permission to introduce the two prior convictions on direct without waiving objection. The court granted this request.

While Arnold only was directly involved, DiVarco claims that, since the case was decided on the relative credibility of Arnold and Government witness Davis, permitting Arnold’s impeachment by an extortion conviction constituted reversible error as to both defendants.

The appellants rely in this appeal, as they did in the trial court, oh United States v. McCarthy, 445 F.2d 587 (7th Cir. 1971). While the appellants appear in this appeal to direct our attention only to the 1935 conviction, both it and the 1948 conviction would seem to exceed the ten-year limitation expressed in Proposed Rule 609(b) referred to in McCarthy. However, if the 1935 conviction was properly admitted there would seem to be no question as to the propriety of the 1948 conviction.

The suggestion was made in McCarthy, which case was considered and found not here applicable by the district court, that the Proposed Rules of Evidence for the United States District Courts and Magistrates should be used by the district courts “as guidelines and at least given consideration in the exer-eise of their discretion in making evi-dentiary rulings.” 445 F.2d at 591. (Footnote omitted.)

At the outset it must be noted that the Proposed Rules, which were to have become effective automatically on July 1, 1973, have not become so and very apparently will not become effective as submitted. See United States v. Kissane, 478 F.2d 1098 (7th Cir., 1973), and Report of Subcommittee on Criminal Justice, House Committee on the Judiciary, June 28, 1973, proposing substantial amendments and deletions to the submitted Rules.

Further, factually in McCarthy two prongs of Proposed Rule 609 came into play. In addition to the venerability of the conviction, the defendant there had received a full pardon. Also, there was substantial reason for believing that the evidence of the prior conviction brought about the conviction being appealed in McCarthy.

Without regard then to a precise time limitation, we turn to the particular facts of the present case to determine whether the admission of the evidence was an abuse of discretion requiring reversal. We think it was not.

In our opinion, a proper test, in the absence of rule limitation, is whether the trial judge believes that the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. See Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 939 (1967), cert, denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). Although the age of the prior conviction is relevant to the above-stated balancing test, the type of crime previously committed and the circumstances of the trial in which the prior conviction is introduced are also highly relevant.

The Government witness Davis had been questioned regarding his prior convictions for mail fraud by both the prosecution and the defense. In exercising his discretion, the trial judge observed:

“I do not think that the jury should be left with the impression that Mr. Arnold has led a spotless life whereas Mr. Davis has been a man convicted. The only way you can do that is to let the evidence of Mr. Arnold’s past activities in with a cautioning instruction that, one, as with respect to Mr. Davis, prior convictions are a factor which the jury may take into consideration, but they may also take into consideration the length of time which has elapsed since the last of any such convictions in weighing the credibility of any particular witness.
“I think with that kind of an appropriate precautionary instruction, we get a balanced presentation of the relative credibility of the two witnesses who, I suspect, will turn out to be the key witnesses in this case.”

It is further to be noted that the two prior convictions of Davis were for theft, which is “universally regarded as conduct which reflects adversely on a man’s honesty and integrity.” Gordon v. United States, supra at 940. Also, in the Gordon case it was observed that where a verdict depended primarily on the jury’s assessment of the credibility of the accused and of his accuser, “there was greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses was to be believed.” 383 F.2d at 941.

The trial judge did give precautionary instructions reading as follows:

“There are some additional factors which are relevant in weighing the testimony of a witness. For example, testimony of a person who is engaged in assisting the government in the nature of an informer; that is, who provides evidence against the defendant for pay or for immunity from prosecution or personal advantage, or for vindication, should be examined and weighed by you with greater care than the testimony of an ordinary witness. This is a factor which you may take into consideration in weighing his testimony. You will have to decide whether Mr. Davis’ testimony here has been affected adversely as to its accuracy by any interest or by prejudice against the defendants.
“It is also a factor which you may take into consideration in weighing the credibility of a witness that a particular witness has been convicted on a previous occasion of a felony. I want you to understand in connection with Mr. Arnold, who is a defendant as distinguished from just a witness, that that is all that that prior conviction is relevant to, his credibility. He cannot be guilty of the offense here charged because some years back he was convicted of some other charges. Those charges are relevant only to the credibility, the extent to which they affect, as Mr. Davis’ more recent convictions are relevant to his credibility, and the fact that there is a longer period of time between the convictions is another factor which you may take into consideration in deciding what effect it has on the credibility; but they are no evidence of guilt, no evidence of guilt.
“Those prior convictions have the same effect so far as Mr. Arnold is concerned as they have so far as Mr. Davis is concerned, except for the difference in the length of time, and that is, they are factors which you may take into consideration in weighing whether or not their testimony is accurate.”

The instruction as to impeachment by evidence of conviction, following immediately after the instruction on Davis’s status as an informer, was clearly beneficial to the defendants by highlighting both Davis’s informer status and the fact that Arnold’s convictions were more remote.

While granting that the conviction admitted in the trial of the present case was substantially more venerable than would be considered generally acceptable by modern standards, we, under the particular circumstances here involved, cannot say the action of the trial court constituted an abuse of discretion.

For the reasons hereinbefore set out, the judgments of conviction of the defendants are affirmed.

Affirmed.

      . The fact that the conduct may also be in violation of 18 U.S.C. § 1001 is not dispositive of the case. United States v. Beacon Brass Co., Inc., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952). Overlap does exist within the criminal provisions of the Internal Revenue Code itself, e. g.. 26 U.S.C. §§ 7206(1). 7207; United States y. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (filed May 29, 1973).

      . We note that the Court in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943), indicated that Internal Revenue Code section 145(a) made it a misdemeanor willfully to fail to make a return, keep records, or supply information when required ‘‘without regard to existence of a tax liahility.” 317 U.S. at 496, 63 S.Ct. at 367. (Emphasis supplied.)

      . The House subcommittee, while preserving time limitations but with changed language, did note, “Subdivision (a) [of Rule 609] was amended so that convictions of crimes involving dishonesty or false statements are always admissible to attack credibility.”


source: Caselaw Access Project

author: REYNOLDS, District Judge.

license: Public Domain

text:
    Dr. Valeriano SUAREZ, Plaintiff-Appellant, v. Edward T. WEAVER, Director, State of Illinois Department of Public Aid, Defendant-Appellee.
    No. 72-1656.
    United States Court of Appeals, Seventh Circuit.
    Argued May 31, 1973.
    Decided Sept. 14,1973.

      Wayne Giampietro, Chicago, 111., for plaintiff-appellant.
    Jerrald Abrams, William J. Scott, Chicago, 111., for defendant-appellee.
    Before PELL and STEVENS, Circuit Judges, and REYNOLDS, District Judge.

       Chief District Judge John W. Reynolds of the Eastern District of Wisconsin is sitting by designation.

   REYNOLDS, District Judge.

Once again this court is asked to decide whether the Constitution requires a state to provide an administrative hearing to an individual whose services it no longer desires to purchase. Plaintiff Valeriano Suarez is a doctor who was appointed a participating physician in the medical assistance program of the Illinois Department of Public Aid. When the defendant discharged him from the program on the basis of certain charges, he began this action seeking an administrative hearing. The district court concluded that his interest in continued participation in the program did not merit any procedural due process protection and dismissed his action. We reverse.

Plaintiff began participating in the medical assistance program in February 1971. Under the program plaintiff treated persons receiving assistance from the Department of Public Aid and 'was reimbursed for his services. Because he had once before been suspended from the program, his status was probationary, and in December 1971, that status was extended for six months.

Then on March 2, 1971, without any prior warning, plaintiff received a letter from defendant informing him that his participation in the program had been terminated. The letter also gave the following reasons:

“At its meeting of February 26, 1972, the State Medical Advisory Committee reviewed a further report of your practices which was brought to their attention because of the large volume of narcotic and dangerous type drulgs you have been prescribing for your patients. The Committee took particular note of the fact that in most instances you prescribed the maximum quantities of these drugs, that in many cases both Doriden and Ritalin prescribed on the same day for the same patient, and that a large proportion of your patients reside at great distances from where your office is located.
“On the basis of serious irregularities in your practices in the past in providing services to public assistance recipients and in the light of this recent report which indicates excessive utilization of certain drugs, the Committee recommended that your status as a participating physician be terminated.”

It was confirmed at oral argument that the defendant relayed his action and these charges to the Illinois Department of Registration and Education, the agency in charge of licensing and disciplining physicians under the Illinois Medical Practice Act. Ill.Rev.Stats.Ann. Ch. 91 (1966).

I.

Plaintiff argues forcefully that by informing the Department of Registration and Education of the reasons for his discharge, defendant seriously imperiled' his reputation. Though that Department has not yet taken formal steps to discipline plaintiff, the charges will remain in its files. Should a potential employer or other interested person inquire as to plaintiff’s history or his standing in the state, there is no reason to believe the Department would not divulge these charges. See Ill.Rev.Stats.Ann. Chs. 91, 127 § 55 ffl. (1966) -

There is little doubt but that a person’s interest in his reputation is sufficient to trigger procedural due process protection. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Weiman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). It is true that the injury to plaintiff’s reputation seems more speculative than the injury threatened in Constantineau in that the charges were not released to the public at large and thus may not reach as wide an audience as the charges made through the posting procedure condemned in that case. But here the charges do reach those, or can reach those, who are interested in the plaintiff’s professional reputation. When damaging charges are released by public agencies to other public agencies which may circulate them further, the mere possibility that the accused’s reputation may escape injury is not critical. ín Updegraff, for example, the Supreme Court took judicial notice of the injury to plaintiff’s reputation which would probably result from the charge of belonging to a subversive organization and then concluded that due process protection was warranted. As in Constanti-neau, no evidence of actual injury to plaintiff’s reputation was required.

The distinction between charges which trigger procedural protection and those that do not has yet to be drawn with any degree of precision. See, e. g., Carpenter v. City of Greenfield School District No. 6, 358 F.Supp. 220 (E.D.Wis. 1973); Hadjuk v. Vocational, Technical and Adult Education, 356 F.Supp. 33 (E.D.Wis.1973); Whitney v. Board of Regents, 355 F.Supp. 321 (E.D.Wis. 1973). Nonretention or dismissal in and of itself will undoubtedly impugn the reputation of the person to some extent. The Supreme Court, however, has made it clear that such nonretention per se is seldom serious enough to warrant a hearing. Board of Regents v. Roth, supra, 408 U.S. at 574 n. 13, 92 S.Ct. 2701. Likewise many adverse comments may not be of serious enough consequence to warrant a hearing. Any tendency to require hearings on the basis of unpublished charges must be tempered by the knowledge that the ultimate result will be to discourage giving reasons regardless of the circumstances. Yet silence will often work greater damage to the dismissed person’s reputation than the worst of reasons. On the other hand, past cases establish that charges which may become public and which suggest immorality, dishonesty, mental deficiency, or abnormal emotional imbalance invoke due process considerations:

“Yet certainly where the State attaches a 'badge of infamy’ to the citizen, due process comes into play. [Citation omitted.] ‘[T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.’ [Citation omitted.]” Wisconsin v. Constantineau at 437, 91 S.Ct. at 510.

Whatever line-drawing problems may arise in future cases, however, we are satisfied that the charges here sufficiently implicate plaintiff’s reputation as a practicing doctor and as a citizen.

II.

In basing this decision on the likely injury to plaintiff’s reputation we do not decide the many other issues raised. For instance, we do not decide whether plaintiff’s property interest in continued participation in the program warrants procedural protection.

We express no view on the merits of the claim but hold only that the plaintiff’s claim is cognizable in the federal action he has brought. Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Defendant agreed at oral argument that the charge of routinely prescribing the maximum quality of narcotics and the charge of prescribing both Doriden and Ritalin on the same day for the same patient raise serious questions about plaintiff’s sense of responsibility and his compliance with the ethical standards of the profession. Hence, we need not decide whether charges bearing only on certain aspects of his professional performance or his personal life style would threaten the kind of injury to his reputation that warrants procedural protection. Shirck v. Thomas, 486 F.2d 691 (7th Cir., decided April 6, 1973) (decision on remand) ; Lipp v. Board of Education of Chicago, 470 F.2d 802, 805 (7th Cir. 1972).

      . Even if plaintiff’s interest in Ms position as a probationary practitioner in the medical assistance program imposed no constitutional requirements on defendant, Rule 1.09 of the defendant’s own rules and regulations requires the defendant to provide plaintiff “an opportunity to' offer an explanation of his conduct.” Illinois Department of Public Aid’s Categorical Manual, Article I, Medical Assistance, Rule 1.09. The existence of Rule 1.09 was not brought to the attention of the court below.


author: PER CURIAM:

text:
    Julius FUNDERBURK, #028638, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 73-3119
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 6, 1973.
    Julius Funderburk, pro se.
    Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., Nelson E. Bailey, West Palm Beach, Fla., for respondent-appel-lee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

It is ordered that this appeal be, and it is hereby dismissed for want of jurisdiction, due to appellant’s failure to timely file a notice of appeal. Rule 4(a), F.R.A.P.; Tribbitt v. Wainwright, 5th Cir. 1972, 462 F.2d 600.


author: CASTLE, Senior Circuit Judge.

text:
    Joseph M. DRISCOLL, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 139, Defendant-Appellee, and International Union of Operating Engineers, AFL-CIO, Intervenor-Defendant-Appellee.
    No. 72-1423.
    United States Court of Appeals, Seventh Circuit.
    Argued April 23, 1973.
    Decided Sept. 11, 1973.

      Sanford J. Rosen, American Civil Liberties Union, San Francisco, Cal., James A. Walrath, Milwaukee, Wis., for plaintiff-appellant.
    Gerry M. Miller, Milwaukee, Wis., J. Albert Woll, Laurence Gold, Washington, D. C., for defendant-appellee.
    Before SWYGERT, Chief Judge, and CASTLE and BARNES, Senior Circuit Judges.

       The Honorable Stanley N. Barnes, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, is sitting by designation.

   CASTLE, Senior Circuit Judge.

Plaintiff Joseph M. Driscoll instituted this action against Local No. 139 of the International Union of Operating Engineers seeking to force the Local to discontinue requiring all candidates for union office to execute a non-Communist affidavit. Because its by-laws required that its local unions demand such an affidavit, the international union intervened. On March 23, 1972, the district court dismissed Driscoll’s complaint for want of jurisdiction. Driscoll v. International Union of Operating Engineers, Local 139, 339 F.Supp. 757 (E.D.Wis. 1972).

The parties have stipulated to the facts of this case, which are succinctly reported in the district court opinion. Id. at 758-759. Briefly stated, Driscoll was denied the opportunity to run for the position of treasurer of Local 139 because he declined to execute an affidavit affirming that he was not a member of the Communist Party or any organization advocating the overthrow of the United States government. After exhausting his internal union remedies he filed a,complaint with the United States Department of Labor pursuant to § 402 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482 (1970) (the “LMRDA”) charging that the affidavit requirement violated § 401 of the LMRDA. After the Department of Labor declined to institute litigation on his behalf, Driscoll filed this action in district court, alleging violations of section 101(a)(1), (2) and (5) of the LMRDA (29 U.S.C. § 411(a)(1), (2) and (5)), and the Civil Rights Act of 1871 (42 U.S.C. § 1983).

The district court rejected plaintiff’s constitutional arguments, finding that the action of Local 139 in promulgating and enforcing the affidavit requirement did not constitute governmental action which could be regulated by constitutional protections. Id. 339 F.Supp. at 760-761. The court also found that the invocation of the LMRDA as the statutory basis for Driscoll’s suit was barred by provisions of that same act making complaint to the Secretary of Labor the exclusive remedy for the denial of one’s right to be a candidate for union office. Id. at 762. Accordingly, it dismissed the complaint for want of federal jurisdiction. Plaintiff appealed, and presses in this court the arguments that the district court had jurisdiction pursuant to both the LMRDA and the first and fifth amendments to the United States Constitution.

I. Jurisdiction Under the Labor-Management Reporting and Disclosure Act of 1959.

Appellant Driscoll argues that the district court erred in concluding that it had no jurisdiction over his complaint under § 102 (29 U.S.C. § 412) because defendants have violated § 101(a)(1), (a)(2) and (a)(5). On this appeal he places his primary reliance on § 101 (a)(2) by arguing that defendants have infringed upon his right of free speech by denying him the right to run for union office.

Driscoll’s attempt to rely upon § 101 (a)(2), however, must overcome an initial hurdle posed by the ambiguity of certain language of the LMRDA and by the interpretation of this language in Calhoon v. Harvey, 379 U.S. 134, 85 S. Ct. 292, 13 L.Ed.2d 190 (1964). The ambiguity arises from the fact that two separate titles of the LMRDA arguably provide remedies to plaintiff Driscoll in this action. Title I allows a private suit pursuant to §§ 101(a)(2) and 102 to vindicate the denial of the right of free speech, and Title IV provides for complaint to and an action brought by the Secretary of Labor to vindicate Dris-coll’s right of candidacy for union office under § 401(e), 29 U.S.C. § 481(e),« which, by the terms of the statute, is the exclusive means of challenging an election already conducted. 29 U.S.C. § 483.

The district court held that it had no jurisdiction under § 102 over a private suit to void a restriction on candidacy for union office, for, the right of candidacy being an explicit Title IV right, the provision of Title IV providing for complaint to and suit by the Secretary of Labor to protect this right was the only remedy available. In reaching this conclusion, the court relied upon Calhoon v. Harvey, supra, where the Supreme Court dismissed a Title I suit to strike down restrictions on eligibility for union office and held that jurisdiction under 29 U.S.C. § 412 could not “be upheld by reliance in whole or in part on allegations which in substance charge a breach of Title IV rights.” 379 U.S. at 138, 85 S.Ct. at 295.

Driscoll seeks to avoid the application of Calhoon to the facts of his particular case on the ground that his case, unlike Calhoon, involves a direct infringement upon his Title I right to freedom of speech. He notes that plaintiff Calhoon sought to attack the requirement that candidates be union members for 5 years and have accumulated 180 days of sea-time in two of the past three years; here, however, Driscoll alleges that the denial of candidacy constitutes a punishment for exercising his right to free speech as guaranteed by § 101(a)(2). Consequently, he argues, this court should have jurisdiction to strike down the requirement just as other courts have had jurisdiction to strike down other union sanctions upon the free speech of their officers and members. If such jurisdiction is not established, he submits, the holding of the district court will enable any union to avoid the direct judicial review provisions of Title I simply by veiling its repressive measures in the form of requirements for elective office.

Despite the factual differences between Calhoon and the instant case, we are still bound by the maxim of Calhoon that

. . . disputes . . . basically relating as they do to eligibility of candidates for office, fall squarely within Title IV of the Act and are to be resolved by the administrative and judicial procedures set out in that Title.

379 U.S. at 141, 85 S.Ct. at 296. Since Driscoll’s allegations “basically relate” to eligibility and charge “in substance” that he has been denied the right to run for office in his union, he is therefore stating a cause of action which can be enforced only under the provisions of Title IV calling for complaint to and suit by the Secretary of Labor as the exclusive remedy. The fact that six of the members of the Calhoon court subscribed to the majority opinion in the face of the observation made by Justice Stewart in concurrence — made also by appellant here — that unions could cloak Title I violations in terms of eligibility requirements ehallengable only under Title IV gives further compulsion for applying Calhoon to the facts of this case.

We recognize one exception to the broad mandate of Calhoon. In Schon-feld v. Penza, 477 F.2d 899 (2d Cir. 1973), plaintiff Schonfeld and fellow union members attacked a disciplinary decision of a union which removed Schonfeld from office and declared that he be ineligible to run for any other union office until June, 1973. Although the court recognized that the complaints attacked the deprivation of what appeared to be Title IV rights, it nevertheless concluded that jurisdiction existed under § 102 because plaintiffs had presented the question “whether the sanctions on Schonfeld in the peculiar context of the history of union fraction-alism presented here impede or infringe upon the free speech and association rights of union members protected by § 101(a)(2).” Id. at 903. But the court also recognized that such a determination of whether jurisdiction existed depended upon a close analysis of the basic thrust of the complaint, and that one could not obtain jurisdiction by merely alleging the denial of Title I rights when Title IV rights were essentially involved :

The competing values between Title I rights and Title IV procedural requirements are best reconciled, in our opinion, by limiting initial federal court intervention to cases where union action abridging both Title I and Title IV can be fairly said, as a result of established union history or articulated policy, to be part of a purposeful and deliberate attempt by union officials to suppress dissent within the union.

Id. at 904. Since the complaint filed by the plaintiffs had demonstrated a purposeful program of suppressing dissent, and since the “lengthy history of intra-District warfare” proved that plaintiff had not made “mere conclusionary allegations,” the court found jurisdiction under Title I. Id.

We find that the complaint of Driscoll in the instant case, although alleging the denial of Title I rights, is insufficient to invoke jurisdiction under the rationale of Schonfeld. The complaint does not allege that the candidacy requirement is part of a purposeful program of suppressing any expression of dissent by plaintiff. Nor does it appear that the eligibility requirement is a discriminatory, ad hoc device calculated to perpetuating certain individuals in office. We hold that this case is not factually distinguishable from Calhoon or similar to Schonfeld to establish jurisdiction under Title I.

Driscoll also attempts to avoid the preclusive effect of Title IV by submitting that he is seeking pre-election remedies which are enforceable under Title I, and not post-election remedies which are available only through the Secretary of Labor. In support of his position he cites holdings from various cases and dicta from others which purportedly support his position. We appreciate the merits of the arguments for accepting such a distinction between pre-and post-election remedies, and recognize that only a limited standard of review is applicable to post-election suits brought under Title IV by the Secretary of Labor. But we are bound by Cal-hoon v. Harvey, supra, which itself was a pre-election case and which impliedly required that the election first be held before any Title IV remedies be made available to the plaintiffs. See also, Amalgamated Clothing Workers of American Rank and File Committee v. Amalgamated Clothing Workers, 473 F. 2d 1303, 1306-1307 (3d Cir. 1973), Kempthorne v. United Transportation Union, 457 F.2d 551, 553 (7th Cir. 1972), Schonfield v. Raftery, 459 F. Supp. 380 (S.D.N.Y.1973), Colpo v. Highway Truck Drivers and Helpers, Local 107, 201 F.Supp. 307 (D.Del. 1961); vacated as moot, 305 F.2d 362 (3d Cir.), cert, denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962).

Plaintiff argues finally that the policy considerations relied upon by the Supreme Court to justify its Calhoon decision do not apply to this case involving sharply-defined legal free speech issues which are not within the expertise of the Secretary of Labor. We note only that Congress has mandated by its enactment of the LMRDA that the Secretary of Labor act as a clearing house for any litigation concerning union election policies and that unions be spared from defending against unnecessary litigation. Trbovich v. United Mine Workers, 404 U.S. 528, 532, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972).

We conclude that Driscoll’s complaint does not allege facts which would confer jurisdiction upon the district court to adjudicate his claims under § 101(a)(2).

Driscoll has also alleged that the affidavit requirement is violative of his rights under § 101(a)(1) of the LMRDA in that it deprives him of equal rights and § 101(a)(5) in that it subjects him to improper disciplinary action. We find that neither claim confers jurisdiction upon the district court. In interpreting the equal rights clause of § 101(a)(1) in Calhoon v. Harvey, supra, 379 U.S. at 139, 85 S.Ct. 292 the Supreme Court held that this section requires only that a qualification on candidacy be imposed equally upon all members. The affidavit requirement is such a uniform requirement. Similarly, we do not believe that Driscoll was necessarily entitled to a hearing before he was “disciplined” by the denial of the right to run for office, since, as a practical matter, no hearing was needed to determine that he did not sign the affidavit. Hurwitz v. Directors Guild of America, 364 F.2d 67, 73 n.8 (2d Cir.), cert, denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966).

Plaintiff has finally argued that the district court should have found jurisdiction pursuant to 28 U.S.C. § 1337, which grants original jurisdiction over any civil action arising under any Act of Congress regulating commerce. A personal suit asserting the right to be a candidate in a union election, however, is not one “arising under any Act of Congress regulating commerce” within the meaning of § 1337, since Congress established a separate basis of jurisdiction for Title IV actions, and Calhoon, supra, permits only the Secretary of Labor to bring suit pursuant to the power conferred upon him by § 402. Thus, if no cause of action arises under the LMRDA, no jurisdiction lies under 28 U.S.C. § 1337. Colpo v. Highway Truck Drivers and Helpers, Local 107, supra, 201 F.Supp. at 314.

II. Jurisdiction Under the United States Constitution.

Driscoll’s complaint also alleged that the refusal of defendant Local 138 to allow him to run for office violated his rights under the first and fifth amendments of the United States Constitution. He asserted jurisdiction for these allegations under 28 U.S.C. § 1331 and 42 U. S.C. § 1983. To support his jurisdictional claim he alleged that the refusal to slate him “was based under color of statute, particularly, Title 29 U.S.C. Section 481(e).” The district court found no jurisdiction under these sections, holding that Driscoll had failed to demonstrate that the essentially private action of the union was so clothed with governmental authority as to be considered “state” or “federal” action that is governed by the Constitution.

On appeal, Driscoll presents two general lines of analysis to support his contention that the activity of the defendants in imposing the oath requirement constituted governmental action contrary to the first and fifth amendments. Driscoll argues initially that the economic power of unions and their involvement with the government belie any suggestion that they are voluntary organizations, and mandate the imposition of constitutional restraints upon their activities. There is no dispute that unions, although traditionally regarded as private entities, have been subjected to extensive governmental regulation and have been granted various powers by governmental agencies. But governmental regulation or participation in some of the affairs of unions does not consequently make every union activity so imbued with governmental action that it can be subjected to constitutional restraints. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). To be regulable under constitutional standards through § 1331 or § 1983, the very activity of a private entity which a plaintiff challenges must be supported by state action, Doe v. Bellin Memorial Hospital, 479 F.2d 756, 761 (7th Cir. 1973), Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968), that significantly fosters or encourages that activity. Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 173, 92 S.Ct. 1965; Lucas v. Wisconsin Electric Power Co., 466 F.2d 638, 656 (7th Cir.) (en banc), cert, denied, 409 U.S. 1114, 93 S. Ct. 928, 34 L.Ed.2d 696 (1973), Todd v. Joint Apprenticeship Comm., 223 F. Supp. 12, 20 (N.D.Ill.1963). For Driscoll to prevail in this jurisdictional claim, he must demonstrate that the governmental activity significantly encouraged defendants in their promulgation and enforcement of the anti-Communist oath. Only then will there be “governmental action” to bring the operation of the first and fifth amendments into play.

Plaintiff’s second line of analysis suggests two particular ways in which the federal government is involved in the activity of the defendants. First, he notes that defendants relied upon § 401(e) of the LMRDA (29 U.S. C. § 481(e)) as a justification for their imposition of the affidavit requirement, for they argued that it was a reasonable qualification for candidacy within the meaning of that statute. Secondly, he argues that the failure of the Secretary of Labor to institute Title IV proceedings on his original complaint amounts to an official participation in the unconstitutional acts of the defendants. Neither ground shows significant federal encouragement of the affidavit requirement to trigger constitutional protections. It is apparent that before the enactment of § 401, unions had the power to exclude whomever they wished from membership or candidacy for union office (subject to some restrictions regarding discrimination on account of race, color, creed, and sex). See, e. g., International Association of Machinists v. Friedman, 102 U. S.App.D.C. 282, 252 F.2d 846 (1958), Callahan v. Order of Railway Conductors, 169 Wis. 43, 171 N.W. 653 (1919); but see Hurwitz v. Directors’ Guild of America, Inc., supra, Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769 (1951). The enactment of § 401(e) has neither enhanced the union’s power over candidacy qualifications nor diminished plaintiff’s rights, Lucas v. Wisconsin Electric Power Co., supra, 466 F.2d at 647; nor does the failure of Congress to go further in outlawing all restrictions upon candidacy transform defendants’ conduct into governmental action. We also refuse to find that the decision of the Secretary of Labor not to act under the limited powers given to him under Title IV established governmental action. As Mr. Justice Rehnquist recognized in Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 175-176 n.3, 92 S.Ct. 1965, a regulatory agency must affirmatively approve or endorse the activity of a private entity for such activity to become subject to the constitution. Such is not the case here. We conclude that the district court correctly concluded that defendants are not engaged in governmental action to invoke the operation of either 28 U.S.C. § 1331 or 42 U.S.C. § 1983.

Our finding that the district court correctly dismissed this case for want of jurisdiction renders it unnecessary to pass upon the arguments relating to whether a body engaging in governmental action or acting under color of federal law could impose the oath involved in this case. The judgment of the district court is affirmed.

Affirmed.

      . The affidavit which Driscoll originally refused to sign contained the following language :
      I swear that I am not at the present time or have ever been [sic] a member of the Communist Party or any other subversive organization dedicated to or advocating the overthrow of the Government of the United States.
      The oath was subsequently revised to the following form:
      I swear that I am not a member of the Communist Party or other organization that advocates the overthrow of the United States Government by force or violence, knowing of and sharing in such advocacy and acting pursuant to the teaching that the United States Government should be overthrown by such means.
      Driscoll refused to sign this version of the oath also.

      . § 401 of the Act, 29 U.S.C. § 481, states in pertinent part:
      (e) In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 of this title and to reasonable qualifications uniformly imposed). . . .
      United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707, 14 L.Ed.2d 484 (1965), struck down the provisions of § 504 making it a crime for a member of the Communist Party to serve as an officer or employee of a labor union because they constituted a “bill of attainder” outlawed by article I, § 9 of the United States Constitution.

      . The Department of Labor notified Driscoll that it had decided to close his case because “it had been determined that this case is not suitable for litigation under Section 402 of the Act.” No further explanation was given.

      . Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.

      . Freedom of speech and assembly.. — Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business property before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as a.n institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.

      . See note 2, supra.

        . Grand Lodge of the International Association of Machinists v. King, 335 F.2d 340 (9th Cir.), cert, denied, 379 U.S. 920, 85 S. Ct. 274, 13 L.Ed.2d 334 (1964), Salzhandler v. Caputo, 316 F.2d 445 (2d Cir.), cert, denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963).

      . See, e. g., International Brotherhood of Boilermakers v. Rafferty, 348 F.2d 307 (9th Cir. 1965), Farowitz v. Associated Musicians of Greater New York, Local 802, 330 F.2d 999 (2d Cir. 1964).

      . On appeal, defendants have apparently abandoned the argument that the district court had no jurisdiction over Driscoll’s LMRDA allegations, and have contended instead that, although jurisdiction exists, the complaint does not state a cause of action. Defendants have reasoned that § 101(a)(2) permits a union to impose “reasonable rules as to the responsibility of every member toward the organization as an institution,” and that the imposition of the affidavit requirement was such a reasonable rule. To support this theory, they point out that because Congress passed § 502 of the LMRDA (which prohibited Communists from taking union office) at the same time as § 101, it must have determined that any union rule imposing an anti-Communist affidavit requirement was reasonable.
      We do not read Calhoon as admitting jurisdiction over plaintiff’s complaint so as to make it necessary to reach defendant’s argument and the problems it raises. See note 23, infra. Calhoon involved both the failure to state a claim and the lack of jurisdiction. The allegations of the complaint asserting a violation of § 101(a)(1) were not sufficient to state a claim. Upon closer analysis, the complaint also alleged in substance that the restrictions on candidacy for union office were unreasonable; the Court held that such a claim was not within the jurisdiction of the district court because it fell within Title IV. Thus, Calhoon requires analysis of the substance (379 U.S. at 138, 85 S.Ct. 292) and basic nature (Id. at 141, 85 S.Ct. 292) of the complaint in order to determine whether jurisdiction exists. Such an approach was employed in Schonfeld v. Penza, 477 F.2d 899 (2d Cir. 1973), discussed infra.

      . The legislative history of the LMRDA indicates Congress’ recognition that the right of candidacy would be enforced in a manner separate from the right to freedom of speech. When Senator Kuchel introduced his amended version of the bill of rights, which constitutes much of the present Title I of the LMRDA, the question arose as to whether the enumeration of rights in his bill would exclude other rights not explicitly listed therein. In response, Senator Cooper noted that the right of candidacy was guaranteed in another section of the bill which had already been proposed:
      The bill itself, in section 301 [the precursor to § 401 of the final version] . guarantees to every member of a union the right to be a candidate. I think that answers the question.
      I think it important to state for the legislative history that the enumeration of the rights mentioned does not exclude other rights. It is so provided in another section of the amendment.
      106 Cong.Rec. 6720 (1959). Senator Kennedy then read the text of the present version of § 401(e), and, without mentioning the different procedure for the enforcement of the right of candidacy guaranteed by it emphasized that such a right was additional to those granted In the bill of rights. Id.

      . Plaintiff’s complaint did not state when the election was to be held, but the parties stipulated to the fact that it was held from July 13 to August 16, 1968. Since the bylaws of defendant Local 139 require the election of officers every 3 years, it is assumed that the next election will be held in summer, 1974. If plaintiff had alleged that the election had been already held or if he had prayed for relief regarding a specific election, § 403 would apparently require dismissal of his complaint because the exclusive post-election remedy is through the Secretary. The ease with which one can avoid § 403 by omitting such allegations or prayers emphasizes the wisdom of the district court’s holding that the absence of such pleadings does not confer jurisdiction.

      . Pre-election suits which have successfully asserted jurisdiction have usually involved arbitrary discrimination against individuals or groups of members, DePew v. Edmiston, 386 F.2d 710 (3d Cir. 1967), Beckman v. Local 46, International Ass’n of Bridge Workers, 314 F.2d 848 (7th Cir. 1963), Schonfeld v. Raftery, 335 F.Supp. 846 (S. D.N.Y.1971), or statutes expressly authorizing the filing of a particular kind of suit, Yablonski v. United Mine Workers, 305 F. Supp. 868 (D.D.C.1969).
      In Trbovich v. United Mine Workers, 404 U.S. 528, 531, 92 S.Ct. 630, 633, 30 L.Ed.2d 686 (1972), the Court noted that “[w]ith respect to elections not yet conducted, the statute provides that existing rights and remedies apart from the statute are not affected.” This dicta apparently recognizes that the only pre-election remedies to protect rights enumerated in Title IV are those existing outside the LMRDA.

      . Section 402 of the act, 29 U.S.C. § 482, provides that the Secretary shall bring a civil action to set aside an election which he finds probable cause to believe was tainted by a violation of Title IV. The court, however, can void an election only if it finds that a violation of § 401 has occurred and that the violation “may have affected the outcome of the election.”

      . Calhoon v. Harvey, supra, 379 U.S. at 140, 85 S.Ct. 292.

      . Equal rights. — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution a.nd bylaws.
      Driscoll’s complaint did not allege in which way the affidavit requirement deprived him of his equal right to nominate, vote, attend meetings, and participate in the business of union meetings under § 101(a) (1).

      . Safeguards against improper disciplinary action. — No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.

      . Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973), Martire v. Laborers’ Local 1058, 410 F.2d 32, 35-36 (3d Cir.), cert, denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969).

      . For the contrary viewpoint see Serio v. Liss, 300 F.2d 386 (3d Cir. 1961), Postma v. International Brotherhood of Teamsters Local 294, 229 F.Supp. 655 (N.D.N.Y.1964), McKeon v. Highway Truck Drivers and Helpers Local 107, 223 F.Supp. 341 (D. Del.1963). We find that these cases are distinguishable for various reasons, and respectfully decline to follow them to the extent to which they are inconsistent with this opinion.

      . 28 U.S.C. § 1331 provides in pertinent part:
      (a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.
      42 U.S.C. § 1983 provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . Plaintiff’s complaint alleged no facts showing “state action” to support invocation of § 1983; nor does he argue any such facts on appeal. The question, then, is whether the action of the defendants is subject to constitutional restraints under 28 U. S.C. § 1331. The parties have argued this issue with the implicit assumption that the same quantum of involvement with the federal government would confer jurisdiction under § 1331 as would state or local government intervention under § 1983, even though the wording of the two statutes is different.

      . Labor unions have been traditionally regraded as private entities, despite the imposition of regulatory provisions upon them. American Communications Ass’n v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 94 L.Ed. 925 (1950), Oliphant v. Brotherhood of Locomotive Trainmen and Enginemen, 262 F. 2d 359, 363 (6th Cir. 1958), cert, denied, 359 U.S. 935, 79 S.Ct. 796, 3 L.Ed.2d 769 (1959). The same view was expressed during the debates preceding enactment of the LMR.DA.

      . See note 13, supra. The decision of the Secretary of Labor to close Driscoll’s- case was undoubtedly influenced by his judgment as to his ability to prove either that the affidavit requirement was an unreasonable restriction on candidacy under § 401(e) of the LMRDA or that it may have affected the outcome of the election.

      . A different issue would be presented had the defendants imposed the affidavit requirement in response to the requirements of § 9(h) of the Labor Management Relations Act of 1947, 29 U.S.C. § 159(h) (repealed in 1959) and continued it thereafter. The record does not indicate that this was the case.
      Because of our holding concerning lack of jurisdiction under the LMRDA in section I of this opinion, we do not reach the question of whether recognition of an anti-Communist oath as a reasonable restriction upon freedom of speech withip the meaning of § 101(a) (2) would constitute governmental action. This question would arise in two forms. The first would be whether reliance upon congressional intent found in legislative history would be any different from reliance upon an explicit congressional statute for the purposes of finding government action. The second would be whether judicial declaration of the reasonableness of the affidavit requirement would constitute state action; for the legislative history of § 101(a) (2) indicates that the courts have the onus of defining and restricting rights under Title I:
      Mr. Curtis. Is it true that under the Senator’s (Mr. Kuchel’s) amendment there are some rights which are not granted equally to all members of the union?
      Mr. Kuchel. That would be true only if one of the courts of the United States, which was called upon to sit in judgment as to whether the rights were violated, determined that it was reasonable on the part of a specific labor organization to make such an excision.
      105 Cong.Rec. 6719 (1959). See also Se-mancik v. United Mine Workers of America District #5, 466 F.2d 144, 155-156, 156 n. 11 (3d Cir. 1972).

      . Because of our holding, we do not reach the question of whether Driscoll had to or did meet the $10,000 jurisdictional requirement imposed by 28 U.S.C. § 1337.