author: WINTER, Circuit Judge:

text:
    Jerry WOHL, sometimes known as Jerome S. Wohlmuth, et al., Appellants, v. Roslyn Wohlmuth KEENE et al., Appellees.
    No. 72-1706.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1972.
    Decided April 4, 1973.

      John M. Bader, Wilmington, Del. (Bader, Dorsey & Kreshtool, Wilmington, Del., Claude L. Callegary and Callegary, Callegary & Smith, Baltimore, Md., on brief), for appellants.
    Theodore C. Mitchell, Baltimore, Md. (Paul C. Wolman, Jr., Blades & Rosenfeld, James H. Langrall, John J. Woloszyn and Weinberg & Green, Baltimore, Md., on brief), for appellees.
    Before WINTER, CRAVEN and WIDENER, Circuit Judges.
   WINTER, Circuit Judge:

Invoking the diversity jurisdiction of the district court, plaintiffs sought to have the court (a) grant a declaratory judgment voiding a prior decree of a Maryland equity court and voiding certain settlement agreements to which one of the plaintiffs was a party, and (b) assume jurisdiction over two trusts, remove the trustees, appoint substituted trustees, require an accounting, and grant other relief. The decree and the settlement agreements, all of which were made in 1957, purportedly settled a dispute between the parties over two testamentary trusts. Plaintiffs claimed that they should be relieved from both, because the settlement agreements and decree were procured by fraud, and those agreements and the decree violated Maryland law and the spendthrift trust provisions in the two trusts.

The district court, 340 F.Supp. 107, dismissed the complaint without prejudice to plaintiffs’ rights to seek relief from a state court, holding that while it had jurisdiction to adjudicate the dispute, plaintiffs had a “plain, adequate and complete” remedy in the state equity court rendering the decree, so that the district court, in the exercise of its discretion, should “refuse to exercise its equitable powers.” Alternatively, and on the merits, the district court concluded that plaintiffs had not “shown” diligence in bringing suit, or alleged fraud, so as to entitle them to relief under applicable Maryland law and, moreover, that plaintiffs could not retain the benefits derived from the settlement agreements and the prior decree and still sue. Finally, the district court ruled that, in any event, suit by the minor plaintiffs was premature. As to its first ground of decision, we understand that the district court invoked the doctrine of abstention; we think it inapplicable in a case of this type. As to the alternate grounds of decision, we think the case inappropriate for summary disposition. Accordingly, we reverse the judgment of dismissal and remand the case for further proceedings.

I.

The undisputed facts are set forth in detail in the opinion of the district court and need not be restated here. It suffices to summarize by stating that plaintiff Jerry Wohl, sometimes known as Jerry Wohlmuth, was the beneficiary of certain testamentary trusts created by one of his four uncles and his father. The trusts came into being in 1937 and 1939. The trusts contained spendthrift clauses customary in Maryland in documents of this nature. The two minor plaintiffs are the children of Jerry Wohl, and they may have a possessory interest in the trusts depending upon the occurrence of certain contingencies. The res of the trusts was primarily the testators’ interests in the family clothing business originally operated by Jerry Wohl’s father and his four uncles.

In 1956, Jerry Wohl sued the trustees (who were his other uncles), attacking their administration of the trusts and their operation of the family business. A state equity court assumed jurisdiction over the trusts. The litigation was ultimately settled by a series of family agreements and a consent decree of the equity court. The effect of the settlement, from the standpoint of Jerry Wohl, was that he sold his interests in the trusts, and released all claims against the trustees, for $10,000 in cash paid to him and $15,000 to be placed in a new trust to provide support for himself and his children (if he should later marry, as he subsequently did).

In the district court, Jerry Wohl attacked the prior transactions, alleging that the sale of his interests in two spendthrift trusts violated state law and was in derogation of the intent of the testators who created the trusts. He alleged also, that when he entered into the settlement he was unemployed, without funds, and in a severe state of emotional distress; that the trustees and other beneficiaries of the trusts, in breach of their fiduciary duty, “took advantage of his condition by persuading him to sell his interest in the trusts,” and that he agreed to sell because of his emotional and financial state. He further alleged that defendants conspired to commit a fraud in the state equity court by willfully concealing from the court the fact that the trusts contained spendthrift provisions and that the class of contingent beneficiaries under the trusts was not closed, with the result that the state equity court lacked jurisdiction to enter the decree.

II.

That the district court’s diversity jurisdiction was properly invoked was not questioned by the district court and it is not contested on appeal. As a consequence, we proceed directly to a consideration of whether, as the district court concluded, it possessed the discretion not to exercise that jurisdiction in the case at bar. We think not.

The judge-made doctrine of abstention is applicable only in special circumstances, AFA Distributing Co., Inc. v. Pearl Brewing Co., 470 F.2d 1210, 1213 (4 Cir., Jan. 3, 1973), and none of the traditional factors justifying abstention appear to be present in the ease at bar.

Abstention may be appropriate where state action is being challenged in a federal court as being contrary to the federal Constitution, and resolution of state law questions might be dispositive of the cáse. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); AFA Distributing Co. v. Pearl Brewing, supra. Abstention may also be warranted to avoid unnecessary conflict with the state in the administration of its own affairs. Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L.Ed. 1424 (1943); Alabama P.S.C. v. Southern Railway, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). AFA Distributing Co. v. Pearl, supra, 470 F.2d at 1213.

Abstention is not appropriate solely to avoid the decision of difficult state law questions. Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943); McNeese v. Board of Ed. for Community School District, 373 U.S. 668, 673 n. 5, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); AFA Distributing Co., Inc. v. Pearl Brewing Co., 470 F.2d 1210 (4 Cir. 1973); Martin v. State Farm Mutual Automobile Insurance Co., 375 F.2d 720 (4 Cir. 1967). See generally, Wright, Federal Courts, § 52, 2nd ed., 1970.

Although abstention may be proper when the unsettled question of state law is one which only a state tribunal could authoritatively construe, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Crawford v. Courtney, 451 F.2d 489, 492 (4 Cir. 1971); see Lake Carrier’s Assoc. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972), that factor is not present in the instant case. The district court’s concise alternative decision on the merits, 340 F.Supp. at 113, and its citation to numerous Maryland cases demonstrates that the applicable state law does not lack certainty. See Akrotirianakis v. Burroughs, 262 F. Supp. 918, 925 (D.Md.1967) (Thomsen, C. J.).

In diversity cases where state law is relatively settled, discretion to abstain is especially limited:

The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience. Its purpose was generally to afford to suitors an opportunity in such cases, at their option, to assert their rights in the federal rather than in the state courts. In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment.

Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 11, 88 L.Ed. 9 (1943). See also County of Alleganey v. Frank Mashuda Co., 360 U.S. 185, 79 S. Ct. 1060, 3 L.Ed.2d 1163 (1959). But none of the “exceptional circumstances” enumerated in Meredith, supra, 320 U.S. at 235, 64 S.Ct. 7, applies to the case at bar.

In concluding to abstain, the district court placed heavy reliance on 7 Moore, Federal Practice j[ 60.37 [3], p. 638 (2nd Ed., 1972). The apparent thrust of the citation is that if an independent state proceeding would lie to invoke the relief sought, a similar action brought instead in a federal court would be appropriate; but if a supplementary state proceeding, by motion or other pleading, is available and is “plain, adequate and complete,” a federal court should abstain from exercising its equitable powers. Because the district court read Maryland Rule 625 to provide such relief by way of a supplementary proceeding in the same court that rendered the original decree, the district court declined to exercise its equitable powers.

The distinction advocated by Moore finds little support in case law. The primary case cited by Moore in its support is Griffith v. Bank of New York, 147 F. 2d 899 (2 Cir. 1945), cert. denied 325 U.S. 874, 65 S.Ct. 1414, 89 L.Ed. 1992 (1945). This was a diversity case where the district court dismissed a claim by a beneficiary of a trust against the testamentary trustee. Several state judgments in the case had preceded the federal suit. Deciding first that the federal court was not compelled to deny relief on the facts presented, the Court of Appeals reasoned:

Assuming power to act, nevertheless should the district court refuse to take jurisdiction in the exercise of discretion? Although we have found no direct authority, it would seem that there should be some discretion in a federal court to refuse equitable relief where state procedure is intended to be exclusive — at least in the absence of a showing that that procedure is inadequate to protect a plaintiff, (emphasis supplied). 147 F.2d at 904.

Yet, having suggested this result, the Court, cognizant of Meredith v. City of Winter Haven’s language reminding of “the general duty of federal courts in diversity cases to decide questions even involving state law unless some exceptional circumstances . . . intervene,” concluded that no sufficient ground for dismissal by the district court had been shown.

Our own prior decisions indicate, although they do not expressly decide, that abstention was improper, even where diversity jurisdiction was invoked to attack collaterally a judgment of a state court. The Firestone Tire & R. Co. v. Marlboro Cotton Mills, 282 F. 811, 815-816 (4 Cir. 1922); McFarland v. Curtin, 233 F. 728, 732-733 (4 Cir. 1916). See also Resolute Insurance Company v. State of North Carolina, 397 F.2d 586, 589 (4 Cir. 1968).

Our analysis of the supporting authority undergirding the portion of U 60.37 [3] relied on by the district court, and the view we have consistently expressed in earlier cases, persuades us that the cited portion of Moore should not be followed. Overall, our conclusion is that abstention was improper.

III.

We do not agree that plaintiff’s alleged cause of action may be summarily dismissed for the reasons advanced by the district court.

The conclusion that Jerry Wohl had not shown ordinary diligence and hence was barred from suing suggests that he was guilty of laches. The action in the district court was equitable in nature and no statute of limitations was directly applicable. But laches as a defense to the assertion of an equitable claim depends not only upon inaction during the passage of time, but also upon a change of position to their detriment on the part of the persons against whom the claim is asserted. Since there were no allegations or proof in this respect, lack of ordinary diligence per se was no bar to the action.

The conclusion that Jerry Wohl’s “cause of action in the original suit was [not] meritorious, in light of the findings of the consent decree,” does not, in our view, bar relief. Of course it is true that in order to set aside an enrolled decree under Md. Rule 625, a state court must also find that the moving party has a meritorious cause of action in the original suit and that he has shown “such facts and circumstances as will certainly establish the fraud . allegedly resorted to in obtaining the judgment sought to be vacated.” Tasea Development Corp. v. Dale, 222 Md. 474, 479, 160 A.2d 920, 923 (1960). But, in the suit before us, Wohl has alleged that fraud was practiced, both on him and on the state equity court. Its findings, contained in the consent decree, may therefore be suspect. Certainly it did not adjudicate Wohl’s original charges of mismanagement of the trust assets, so that at the present time the merit or lack of merit in the original case is unknown.

The district court also concluded that the federal complaint had not sufficiently alleged fraud, because Wohl, “himself a lawyer, was represented by counsel of his own choosing, entered into the family settlement, and consented to the decree in which Judge Harlan [the state judge] stated that he had read and considered the exhibits, which showed the interest of the trustees and included the two wills containing the spendthrift clauses.” We think summary disposition improper.

These facts are, of course, relevant to the issue of fraud, but they are not determinative when Jerry Wohl has alleged, in the complaint and under oath in his affidavit, that (1) his uncles, who were in complete control of the family business, had told him that he would gain nothing by pursuing his suit for an accounting, and that he would be well advised to arrange an amicable settlement of that suit; (2) his uncles advised him that he was a beneficiary under their wills, that he would eventually receive substantial benefits, and that if he would be “reasonable” about the accounting suit they would not change their wills; (3) that during the relevant period he was unemployed, “suffering from alcoholism,” and in need of financial assistance; and (4) subsequent to the entry of the decree his counsel advised him that the state equity court had not been told of the spendthrift provisions and that the court had not discovered them on its own. We think that these allegations were sufficient to raise factual issues of whether fraud had been practiced on either Jerry Wohl or the state equity court, or both, and that the case was inappropriate for summary disposition.

The district court’s concern that plaintiffs may not maintain the action while retaining the benefits of the earlier settlement is well taken, but it, too, is not a ground for summary disposition. As a general rule, when a party knows the facts and voluntarily accepts the benefits of a judgment, he thus waives any errors in the decree and es-tops himself from appealing the decree. Dubin v. Mobile Land Corp., 250 Md. 349, 243 A.2d 585 (1968). Here, there is not an appeal; there is a collateral attack based on fraud. Wohl alleges in effect that he did not know the facts, and accepted the state decree and its benefits under both duress and the mistaken impression that this was essentially his only choice. He alleges that fraud may also have been committed on the court. Accepting the allegations as we must at this time, Wohl’s allegedly innocent acceptance of the benefits should not prevent these issues from being resolved.

Of course, plaintiffs may not retain the fruits of the 1957 transactions and regain their rights under the trusts, in addition; but, if plaintiffs are found to be entitled to benefits in the present action, there will be ample opportunity to reduce their recovery by what they may have already received. There is no need totally to deny recovery.

Nor do we think that the action is “premature,” as the district court concluded, with respect to the minor plaintiffs. It seems obvious that they would be entitled to no greater rights than their father, Jerry Wohl, and if their father is shown to be entitled to relief there would be no greater burden on the defendants to adjudicate the rights of the minor plaintiffs now rather than later. Of course, at most, the minor plaintiffs would be entitled only to declaratory relief since they have no present possessory interest.

Overall, we conclude that the merits should be adjudicated only after an evidentiary determination, or at least a full opportunity for the parties to develop a case on motion for summary judgment.

Reversed.

      . The district court relied primarily on Rule 625 of the Maryland Rules of Procedure which gives a Maryland trial court revisory power over its judgment or decree. Even after the expiration of thirty days after entry, a Maryland court is vested with revisory power “in case of fraud, mistake or irregularity.” Presumably, upon an appropriate showing, the Maryland equity court could withdraw its decree approving the settlement agreements and terminating the original litigation.

      . Both trusts provided that income payable to any beneficiary should be paid “into the hands” of the beneficiary “and not into the hands of another,” and that neither inoome nor principal should be subject to “any assignment or anticipation by any beneficiary,” and, hence, under Maryland law were spendthrift trusts. The purpose of a spendthrift trust is to protect a beneficiary from his own improvidence by protecting his income (and here, principal, also) from his creditors and rendering it inalienable by him before payment. Maryland law deems a spendthrift trust valid and enforceable. See generally, Safe Deposit and Trust Co. of Baltimore v. Robertson, 192 Md. 653, 65 A.2d 292 (1949); Manders v. Mercantile Trust & Deposit Co., 147 Md. 448, 128 A. 145 (1925).

      . Even the proposal of the American Law Institute to ooniract federal jurisdiction would not permit abstention in the present case. See ALI, Study of the Division of Jurisdiction Between State and Federal Courts, 48-50, 282-298 (1969). Indeed, as the commentary to proposed § 1371 indicates, the abstention doctrine is applicable only in a suit where it is claimed that state legislative or administrative action is invalid because contrary to controlling federal law. Even then, the appropriate remedy is stay, and not dismissal, as was granted here.

      . The only other case cited by Moore is Osterling v. Commonwealth Trust Co., 35 F.Supp. 704, aff’d 115 F.2d 809 (3 Cir. 1940). Although somewhat similar factually to the case at bar, that case involved the accounting of an estate within the exclusive jurisdiction of a probate court, and the essential charges in the federal complaint had been submitted to and decided by the probate court. Moreover, the case was decided prior to Meredith, sujjra, and the modern development of limitations upon the abstention doctrine.

      . At the outset, it is not clear whether the district court, in passing on the merits, decided a pure motion to dismiss or whether, since the complaint had been amplified by the filing of Jerry Wohl’s affidavit, the district court granted summary judgment. We do not find it necessary to resolve this procedural ambiguity.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Earnest NEVEAUX, Plaintiff-Appellee, v. LYKES BROS. STEAMSHIP CO., INC., Defendant-Appellant.
    No. 72-3086
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 12, 1973.

      F. L. Beckenstein, Wendell C. Radford, Beaumont, Tex., for defendant-appellant.
    Ned Johnson, Fred J. Rafes, Beaumont, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN, and MORGAN, Circuit Judges.

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

   PER CURIAM:

Earnest Neveaux brought suit in admiralty against Lykes Brothers Steamship Company, Inc. (Lykes Brothers) seeking maintenance and cure for an illness that he contracted on December 22, 1970 while employed as a seaman by the defendant. After the presentation of evidence in a non-jury trial, the district court upheld this claim. It found that Neveaux suffered a gum infection accompanied by chills and fever during December of 1970 while working on the SS RUTH LYKES and that these symptoms persisted requiring further treatment after he left that vessel on January 18, 1971. The court awarded maintenance and cure in the amount of $392.-00 and reimbursement of medical expenses totaling $97.80. It further permitted the recovery of $150.00 in attorney’s fees on the ground that it was necessary for Neveaux to incur that expense in order to obtain the foregoing relief. We affirm the district court’s judgment in all respects except as to the allowance of attorney’s fees.

Although Lykes Brothers makes several assignments of error, a careful review of the briefs and record in this case discloses that the only claim warranting discussion is that relating to the district court’s award of attorney’s fees to Neveaux. It is clear that Neveaux was treated for a gum disorder along with chills and fever when he was serving on board the SS RUTH LYKES. These symptoms continued after he left the ship and finally, almost a month later, became so serious that he sought private medical treatment. In a letter to Lykes Brothers dated February 24, 1971, Neveaux gave notice that he was seeking maintenance and cure for an illness diagnosed by his family physician to be typhus. The letter contained no elaborative details. Lykes Brothers did not deny the claim immediately but instead requested further medical information to aid it in reaching a final decision. In explanation of the delay, it was pointed out that Neveaux had been declared fit for duty when he departed the SS RUTH LYKES on January 18, 1971 and that the incubation period of typhus raised some question as to whether he could have contracted the disease while in the company’s employ. On the facts of this case, we conclude that Lykes Brothers’ procedure in handling Neveaux’s claim did not exhibit the kind of arbitrary and capricious conduct which is prerequisite to an award of attorney’s fees in cases such as this one. Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 1000, 8 L.Ed. 2d 88, 92 (1962); Richard v. Bauer Dredging Co., 433 F.2d 954, 955 (5 Cir. 1970).

The judgment of the district court is hereby modified to eliminate the allowance of attorney’s fees but the judgment is affirmed in all other respects.

Judgment modified and affirmed.

      . Neveaux also claimed damages resulting from Lykes Brothers’ failure to provide a safe place to work and for the unseaworthiness of the SS RUTH LYKES. He abandoned both causes of action at the time of the trial.


text:
    William Nicholas KARCHER, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Defendant-Appellee.
    No. 72-3542.
    United States Court of Appeals, Fifth Circuit.
    March 20, 1973.
    William Nicholas Karcher, pro se.
    Robert L. Shevin, Atty. Gen., Arnold Ginsberg, Asst. Atty. Gen., Tallahassee, Fla., for defendant-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
   PER CURIAM:

William Nicholas Karcher has appealed from the district court’s denial of his petition for habeas corpus. We affirm the ruling below.

Appellant is presently confined in a federal prison, by virtue of a federal sentence which he does not attack in these proceedings. In his habeas petition filed below, the appellant complained of his five-year sentence for the crime of “entering without breaking.” He was convicted and sentenced on his plea of guilty of this offense on March 5, 1970, in the Criminal Court of Record of Dade County, Florida. There was no direct appeal.

Appellant contended in his federal habeas petition that the state conviction and sentence are invalid because he was denied a speedy trial on the charges. The district court denied relief on the following grounds, as stated in the final order:

“The petitioner is not attacking the voluntariness of his guilty plea, merely the failure to bring him to trial within three terms of court. A plea of guilty is an admission of all the elements of a formal criminal charge. United States v. Bendicks, 449 F.2d 313 (5th Cir. 1971). Such a plea waives all nonjurisdictional defects in the proceedings against him. Gafford v. United States, 438 F.2d 106 (5th Cir. 1971). The issue of an accused’s right to a speedy trial is nonjurisdiction[al] in nature. Fowler v. United States, 391 F.2d 276 (5th Cir. 1968). The petitioner has therefore waived the ground he presently seeks to assert.”

We find no error in the district court’s holding, based on the record which was then before it.

In an unsworn letter-request for rehearing, Karcher alleged generally that his defense was prejudiced by the delay; and that the state's attorney wrongfully induced his plea by threats of longer consecutive sentences if he went to trial. The district court was justified in disregarding these unverified factual allegations, which it did in denying rehearing. See 28 U.S.C. § 2242; Application of Gibson, 9th Cir. 1954, 218 F.2d 320, cert. denied 348 U.S. 955, 75 S.Ct. 445, 99 L.Ed. 746; Dorsey v. Gill, 1945, 80 U.S.App.D.C. 9, 148 F.2d 857, cert. denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003. Furthermore, the record shows that Karcher has not attempted to exhaust his available state remedies on these additional grounds, as required by the provisions of 28 U.S.C. § 2254(b). Such exhaustion is a prerequisite to the granting of federal habeas corpus relief to a state prisoner. See Picard v. Connor, 1971, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438; Lee v. Wainwright, 5th Cir. 1972, 468 F.2d 809 [1972]; Williams v. Wainwright, 5th Cir. 1971, 452 F.2d 775; Jackson v. Wainwright, 5th Cir. 1971, 450 F.2d 289. The order appealed from is affirmed.

Affirmed.

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.

      . Which the state court ordered to run concurrently with Karcher’s federal sentence.


text:
    David Allen LONG, a minor 18 years of age, by his father and next friend, Albert L. Long, Plaintiff-Appellant, v. Kobert ZOPP, head football coach of Greenbrier East High School, et al., Defendants-Appellees.
    No. 72-2302.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1973.
    Decided March 29, 1973.

      Michael C. Smith, Union, W. Va., for appellant.
    E. M. Payne, III, Beckley, W. Va. (Bowers, File, Hodson & Payne, Beckley, W. Va., on brief), for appellees.
    Before RUSSELL and FIELD, Circuit Judges, and BRYAN, District Judge.
   PER CURIAM:

Massie v. Henry (4th Cir. 1972), 455 F.2d 779, found it constitutionally impermissible for public schools to impose “hair codes” on their students. The football coach at Greenbrier East High School, however, decreed that all members of the football squad at that school should observe a “hair code” prescribed by him, not merely during football season, but throughout the school year, under penalty of being denied their “letter” for participation as a member of the team. The plaintiff was a student at Greenbrier East High School and a member of the football squad who, by his participation, earned a right to a “letter” in football. He had observed the “hair code” ordered by the football coach during the football season but allowed his hair to grow beyond the prescribed length thereafter. Because of his noncompliance with the “hair code” in the off-season school year, he was denied at the end of the school year his football “letter” and an invitation to the Athletics Banquet by the coach. This action of the coach, on appeal, was sustained by the school authorities. The plaintiff seeks by this action to void as an unconstitutional deprivation this denial of his right to a football “letter” by the school authorities. The District Court dismissed his action. We reverse.

The doctrine of Massie is equally applicable to all school-controlled activities. It extends to school athletic programs, as well as to school academic programs. Awards, properly earned in either field, cannot be used as instruments to enforce compliance with a “hair code”, for the enforcement of which there is no compelling necessity. Assuming arguendo that there might be some hygienic or other reason to support a “hair code”, as promulgated by the football coach during football season, such reason would plainly not justify the enforcement of the code after the football season had ended. The action of the football coach was accordingly in violation of the principles enunciated in Massie. See Dunham v. Pulsifer (D.C. Vt.1970) 312 F.Supp. 411. The plaintiff is entitled to injunctive relief. Under the circumstances, we do not feel a monetary award is warranted.

Reversed with instructions.


author: PER CURIAM.

text:
    Ellis RADER et al., Plaintiffs-Appellants, v. Melvin CLIBURN et al., Defendants-Appellees.
    No. 72-1874.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 8, 1973.
    Decided March 28, 1973.
    J. H. Reneau, III, Celina, Tenn., for plaintiffs-appellants.
    J. A. Wells, LaFayette, Tenn., Lamar Alexander, Nashville, Tenn., Dearborn & Ewing, Nashville, Tenn., J. H. Reneau, Jr., Lafayette, Tenn., on brief, for defendants-appellees.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

The Board of Education of Macon County, Tennessee, was reapportioned by order of the United States District Court for the Middle District of Tennessee on February 25, 1970. Clark v. Austin, Civil Action No. 538. The reapportionment order, issued by then District Judge William E. Miller, was the culmination of a class action filed by residents and taxpayers of Macon County claiming the Board’s election districts violated the dictates of the one-man, one-vote doctrine as announced by the United States Supreme Court. See Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). There was no appeal from the agreed order which, in addition to providing for a new zone system, ordered an election of Board members for concurrent initial terms of six years, beginning in September 1970.

On April 19, 1972, twenty-six months after Judge Miller’s above described order, the present appellants, Macon County residents who had not been parties to the Clark suit, brought this action in the Middle District of Tennessee seeking a “correction” of the earlier order. The appellants claimed that the Clark order failed to take into consideration a Tennessee statute which provided that, if a federal court abolished a county board of education for reasons of malapportionment, staggered terms were to be given to new board members. The appellants claim that Judge Miller’s order in providing for concurrent six-year terms for the new board members was beyond the jurisdiction of the District Court.

District Judge L. Clure Morton dismissed the appellants’ suit, holding that there was no deprivation of any federal right asserted and that the court had no jurisdiction under 42 U.S.C. § 1983. Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), cert. denied, 408 U.S. 943, 92 S. Ct. 2847, 33 L.Ed.2d 767, rehearing denied, 409 U.S. 898, 93 S.Ct. 95, 34 L.Ed. 2d 157 (1972). Judge Morton held that there were only two possible grounds for relief, action under Rule 60(b) (6) of Fed.R.Civ.P. or as an independent suit in equity for relief from a judgment.

We affirm the judgment of dismissal.

There can be no serious contention that Judge Miller was without power to mandate the concurrent six-year terms for board members. The status of federal district courts as courts of equity affords them great latitude in the fashioning of remedies for constitutional violations in reapportionment cases. See W.M.C.A., Inc. v. Lomenzo, 238 F.Supp. 916 (S.D.N.Y.1964), aff’d, 382 U.S. 4, 86 S.Ct. 24, 15 L.Ed.2d 2 (1965); Reynolds v. State Election Board, 233 F.Supp. 323 (W.D.Okl.1964).

There has been no showing under Rule 60(b)(6) of anything to indicate that the District Court overlooked any State statute in issuing the 1970 order. To the contrary, the District Judge, with his long background of experience in Tennessee law, both as a judge and practicing attorney, is presumed to have been aware of all relevant Tennessee statutes. As for the independent suit in equity, there have been no grounds alleged or shown which would merit relief. This assuredly is not a case of unusual and exceptional circumstances, Crosby v. Mills, 413 F.2d 1273, 1276 (10th Cir. 1969), for which such relief may be granted.

This court is of the opinion that in 1976 at the expiration of the present terms of members of the Macon County Board of Education the staggered election system outlined by T.C.A. § 49-208 will take effect; that is, members elected in 1976 will serve for staggered terms as provided by the statute.

Affirmed.

      . Chapter 252 of the Public Acts of 1967 describes the action which should be taken for the establishment of school boards in the situation where federal courts declare the membership of a county school board in violation of the United States Constitution. That act makes applicable T.C.A. § 49-208 (ch. 262, Pub. Acts of 1961) to this situation. It provides for staggered terms of office for school board members.
      Chapter 262, Pub. Acts of 1961 provides the following:
      “An Act to provide a system of staggered terms for members of County Boards of Education.
      “Section 1. Be it enacted by the General Assembly of the State of Tennessee, That at the next regular election immediately preceding the expiration of the terms of office which members of the various County Boards of Education are now serving, the members of the County Boards of Education shall be elected in the following manner, and the provisions hereof shall be controlling both in those Counties where members of Boards of Education are elected by the Quarterly County Court and in those Counties where members of the Boards of Education are elected by the vote of the people: ”
      Appellants claim that Judge Miller’s order, providing for six-year terms for the members of the newly constituted board violated the statute.

      . Rule 60(b), Fed.R.Civ.P. provides:
      “(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the’following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) ; (3) - fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party ; (4) the judgment is void ; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”


text:
    AEROJET-GENERAL CORPORATION, Plaintiff-Appellant, v. Reubin O’Donovan ASKEW, Etc., et al., Defendants-Appellees.
    No. 73-1300.
    United States Court of Appeals, Fifth Circuit.
    March 5, 1973.
    See also D. C., 355 F.Supp. 928.

      George W. Wright, Jr., Karl B. Block, Jr., Miami, Fla., for plaintiff-appellant.
    Robert L. Shevin, Atty. Gen., Barry S. Richard, Deputy Atty. Gen., M. Stephen Turner, Gen. Counsel, Bd. of Trustees, Tallahassee, Fla., Stuart Simon, Dade County Atty., Alan T. Dimond, Asst. County Atty., Miami, Fla., for defendants-appellees.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
   PER CURIAM:

This matter is before the court on a request by appellant Aerojet-General Corporation for a temporary stay of state court proceedings pending this court’s resolution of this appeal from an .order of the United States District Court for the Northern District of Florida. Both appellant and appellees have filed briefs on this motion and appellant has filed a reply brief. This court has determined that, because of the factual circumstances which will become evident, this appeal is one which may properly be disposed of summarily by this court at this time. See Groendyke Transport, Inc. v. Davis, 5 Cir. 1969, 406 F.2d 1158. We have, therefore, concluded that the stay requested by the appellant is granted and that this case will be remanded to the district court for the Northern District of Florida for further proceedings not inconsistent with this opinion.

The subject matter of this instant litigation has had a long history in the courts. At issue is the ownership of several thousand acres of land in Dade County, Florida. In 1961, Aerojet entered a lease-option contract with the Trustees and the State Board of Education of Florida concerning the lands in issue.

In 1969, Aerojet sought to exercise its option to purchase but the Board of Trustees refused to convey. Aerojet then instituted an action against the Trustees demanding specific performance of the option. This court, in Aerojet-General Corp. v. Askew et al., 5 Cir. 1971, 453 F.2d 819, upheld the district court’s order of specific performance.

After the initial entry of the lease-option contract between Aerojet and the Trustees, but before Aerojet sought to exercise its option, section 253.111 of the Florida Statutes, F.S.A., was enacted into law. This section, enacted in 1965, requires that the Trustees shall not sell or convey any lands to any private parties without first giving notice to the County Board of Commissioners that the land is available to the county for public purposes.

In compliance with the mandate of this court, the Trustees executed a deed conveying the land in question to Aerojet on June 20, 1972. Metropolitan Dade County, not a party to this previous federal court action, sought a writ of mandamus from the Florida Supreme Court compelling the Trustees to comply with section 253.111 by offering the land to Dade County before sale. On October 11, 1972, the Florida Supreme Court, in State ex rel. Dade County v. Askew et al., 267 So.2d 827 (Fla., 1972), a proceeding in which Aerojet was not a party, construed the option contract between Aerojet and the Trustees to contemplate application of Florida statutes in effect at the time of exercise of the option. Following this decision, on October 31, 1972, the Trustees issued a deed on these same lands previously conveyed to Aerojet to Metropolitan Dade County.

In response to these events, Aerojet sought a declaratory judgment of its rights in the land vis-a-vis Dade County from the district court for the Northern District of Florida, the court which had previously ordered specific performance of the option contract. On October 31, 1972, that court enjoined the defendant Trustees and Dade County from instituting any suit challenging Aerojet’s title pending resolution of this action.

On January 8, 1973, the district court apparently modified that order and in effect dissolved the injunction. A reading of the. opinion of the district court shows that this injunction was dissolved specifically to encourage the instigation of a state court suit to quiet title. The district court stated that the action was taken because “there are present unsettled questions of Florida law concerning transfer of public lands” which the court felt could be illuminated by state court consideration of underlying public policy in such transfers. Two days after this order of the district court was filed, Metropolitan Dade County commenced a quiet title suit in state court seeking to quiet title against Aerojet. Aerojet filed an appeal from the order dissolving the temporary injunction which had prohibited any such court suits and, at the same time, sought a stay of the state court quiet title suit pending appeal of the propriety of the district court’s dissolution of the injunction. It is that application for a stay which is currently before this court.

At this point, the one factor which leads this court to summarily remand this matter occurs. In addition to filing this appeal of the dissolution order, Aerojet sought and obtained removal of the quiet title suit brought by Dade County from state court to the United States District Court for the Southern District of Florida. Thus, at this time, we are faced with the district court for the Northern District holding this suit in abeyance in order to obtain a state court adjudication of public policy. At the same time, it has become patently obvious that the asserted rationale for this abstention has been eliminated by the removal of the quiet title action from state court. The Northern District will now be able to obtain only the views of the Southern District as to the questions of public policy it feels are involved. Thus, we are faced with two suits in federal courts which allegedly may well turn on resolution of similar issues — the applicability of the Florida statute and the underlying state public policy on disposal of public lands.

Since the express grounds for the district court’s (Northern District) order have now evaporated, we feel that the expense, both monetary and in the form of judicial energies, which would accompany the full briefing and argument of this instant appeal would be wasted. We, therefore, order that the Northern District’s original injunction against any suits challenging Aerojet’s title be reinstated so that that court can consider the merits of Aerojet’s claim.

Remanded.

      . In the opinion of this circuit in the first Aerojet-General Corp. v. Askew et al. case, the impact of Florida statute 253.111 on the lease-option contract was apparently not passed on. One of Aerojet’s claims in the instant proceeding is an assertion that failure to press the statute as a defense in this earlier suit is res judicata on the issue and it can now not be relitigated.

      . It appears to the court that there is a strong argument here for transfer and consolidation of the quiet title suit with the instant proceeding. That would allow for all overlapping issues and any additional ones to be considered and resolved in a single forum. Hopefully, resolution in such an action would be a firm step toward bringing this complicated dispute to a truly final conclusion.