author: BRIGHT, Circuit Judge.

text:
    Craig CAMERON, Plaintiff-Appellant, v. Louis WHIRLWINDHORSE et al., Defendants-Appellees.
    No. 73-1821.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided April 2, 1974.

      Judith A. Atkinson, N. D. Legal Services, New Town, N. D., and Eric E. Van Loon, Center for Law and Ed., Cambridge, Mass., and Thomas K. Schoppert, N. D. Legal Services, New Town, N. D., for plaintiff-appellant.
    Dwight C. H. Kautzmann, Vogel, Bair & Brown, Mandan, N. D., and Carlton R. Stoiber, Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before HEANEY and BRIGHT, Circuit Judges, and DENNEY, District Judge.

       ROBERT V. DENNEY, District Judge, District of Nebraska, sitting by designation.

   BRIGHT, Circuit Judge.

Craig Cameron is an enrolled member of the Standing Rock Sioux Tribe and was a tenth grade student at Standing Rock Community High School in Fort Yates, North Dakota, during the 1972-73 school year. He was suspended on January 23, 1973, by the principal, Louis Whirlwindhorse, after an incident in which the student repeatedly challenged a teacher to fight.

On April 17, 1973, a Review Board created by the Standing Rock Advisory School Board held a hearing on the matter and concluded that Cameron’s procedural rights had been violated. The Board recommended that plaintiff be given “special student” status which would allow him to work on his courses at home, but not attend classes. The school administration followed this recommendation.

A second Review Board meeting was scheduled to consider the substantive elements of the suspension, but the instant suit intervened on April 23, 1973. The action was brought against:

1) the principal of the school and the principal’s superiors — Robert Vor-hees, superintendent of schools for Standing Rock Reservation, Bennie Antelope, superintendent of Standing Rock Reservation, and Wyman Babby, Area Director of the Aberdeen office of the Bureau of Indian Affairs — all of whom worked for the Bureau of Indian Affairs (the federal defendants);

2) certain members of the Tribe who served on the advisory and review boards (the tribal defendants);

3) the members of the Fort Yates School District No. 4 School Board of Sioux County, North Dakota (the state defendants).

In his complaint, Cameron alleged fifth and fourteenth amendment violations on the ground that without a hearing he was deprived of his right to an education. In addition to injunctive and declaratory relief, plaintiff sought a total of $15,000 in compensatory damages against the public school board and the Bureau of Indian Affairs (B.I.A.), although the latter was not named as a party to the action. He also sought a total of $60,000 in punitive damages against two of the B.I.A. supervisors (but not Whirlwindhorse or the school superintendent), and against the members of the school board, the school advisory board, and the review board.

On May 1, 1973, the trial court heard evidence and arguments on plaintiff’s application for a temporary injunction to reinstate him in school, denied the temporary injunction, and dismissed the action with prejudice in an order filed May 24, 1973.

Upon motion of defendant-advisory board and review board members to clarify its order, the district court subsequently vacated its May 24th order, and, on October 3, 1973, entered a new order dismissing the action with prejudice on different grounds. This appeal followed.

Plaintiff joined multiple defendants in his complaint apparently because the Standing Rock Community High School is jointly operated by the Standing Rock Indian Agency, which is a sub-agency of the Bureau of Indian Affairs, and by School District No. 4, Sioux County, North Dakota, which is a public school district. Indians constitute a majority of the students and the B.I.A. furnishes about 90 percent of the funds to operate the schools. The principal, Louis Whirl-windhorse, is an employee of B.I.A.

Although the Bureau of Indian Affairs promulgated an interim procedure affording procedural due process in student expulsion cases on February 1, 1972, the record shows no implementation of this program in the high school as of the time of hearing. The complaint alleges that authority over school administration and policies is divided among B.I.A. officials, public school board members, and members of the Tribe functioning on advisory boards, and alleges in general that no procedures have been established for a due process hearing upon student suspension and that no proper hearing had been afforded Cameron.

On this appeal, the attorneys for the Department of Justice representing the B.I.A. employees have moved to affirm pursuant to Fed.R.App.P. 27 and 8th Cir.R. 9 on the grounds that these proceedings are moot. It is undisputed that, subsequent to the hearing in district court on this action, the Government has proceeded against Craig Cameron as a juvenile delinquent because of his participation in an incident separate from any alleged misconduct in school. On September 10, 1973, Cameron was adjudged a juvenile delinquent, see 18 U.S.C. §§ 5031-5033, and committed to the custody of the Attorney General for a two-year period. We agree with the position of the Department of Justice that the controversy with respect to the request for injunctive, declaratory, and mandatory relief has been mooted by these developments.

Notwithstanding the mootness of this part of the complaint it is appellant’s contention that his claims for damages are not moot, that summary judgment was not warranted, and that, therefore, the action was improperly dismissed by the trial court without his having been afforded an opportunity to present a full case on the merits. Normally, such circumstances would justify our reversing and remanding the action for trial on the merits. Here, however, upon examination of the complaint, no facts are alleged by plaintiff which could justify any award of damages — compensatory or punitive — against federal, tribal, or state defendants.

Plaintiff does not appear to press the issue of compensatory damages strongly, but, even if we accept missed school time as actual damages, his claim for compensatory damages against the Bureau of Indian Affairs must be dismissed since the Bureau is not named as a party to this action. Nor can the claim for compensatory damages against “the Fort Yates School District No. 4 School Board and/or the Standing Rock Advisory School Board” stand, since the complaint does not claim that either of the boards acted in the suspension proceedings or that any member recommended Cameron’s suspension. In Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973), we rejected the right of a student to claim damages for suspension against school officials who had neither voted for or recommended suspension. Further, the appellant does not contest the action of the trial court in dismissing the case against the tribal defendants since they lacked any authority to suspend or reinstate the plaintiff.

In Strickland, we noted that to collect punitive damages, the plaintiff must prove that defendant acted with malice toward him. With respect to the claims made against the remaining defendants for punitive damages, we may assume arguendo that a school official who wil-fully and maliciously suspends a student or avoids reinstating a student contrary to proper procedure may be subject to punitive damages. The complaint here, however, supplemented by undisputed facts shown at the hearing, dispel any notion that the failure to grant Cameron an early hearing was malicious in any way.

Since the complaint does not allege anything more than the mere conclusion that the defendants, against whom punitive damages are claimed, acted “wilfully, knowingly, and maliciously” in suspending Cameron, we believe it appropriate to remand this case to the district court with directions to modify the judgment to show a dismissal on grounds of mootness as to the equitable relief sought and a dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), as to the compensatory and punitive relief sought.

Remanded.

      . The court found as follows :
      1. The assertion by the plaintiff that he has been in a state of expulsion from January 24, 1973, to the present date, has not been proved.
      2. The Tribal Review Board is an internal review board, set up by the Bureau of Indian Affairs, and is not a Board authorized by the school laws of the State of North Dakota, under which this school board operates. Therefore, the Tribal Review Board is not the proper party defendant, and as to it and its members, this action is dismissed.
      3. This is not a case of a violation of the Indian Civil Rights Act.
      4. This student has had made available to him .a special student status. Such status is not as a matter of punishment to the student, but is made necessary by the fact that this student is so unmanageable as to be a menace to the other students in the school system.
      5. The student has not exhausted his administrative remedies according to the school laws of the State of North Dakota.

      . The court made the following conclusions of law:
      I
      Plaintiff is not entitled to a preliminary injunction directing his re-entry into school.
      II
      The laws of North Dakota do not apply to and North Dakota has no jurisdiction over, Indians in Indian Country, including the plaintiff.
      III
      The defendant Standing Rock Advisory School Board and the defendant Review Board and the individual members of those Boards, are without power or authority to furnish the relief demanded by the plaintiff; the Complaint fails to state a claim for relief against those defendants; and those Boards and the individual members of those Boards are entitled to a judgment of dismissal.
      IV
      The Fort Yates School District # 4 School Board and its members has no jurisdiction over plaintiff; the Complaint fails to state a claim against those defendants; and those defendants are entitled to a judgment of dismissal.
      V
      Plaintiff was entitled, but did not receive, an opportunity for hearing before a Board of Review appointed by the Area Director, Aberdeen, Bureau of Indian Affairs, in accordance with the provisions of the memorandum of February 1, 1972, from the Commissioner of Indian Affairs * * *.
      VI
      The case is moot so far as injunctive relief is concerned as to the school year that ended in June, 1973.
      VII
      The plaintiff had not exhausted his administrative remedies prior to filing suit dated April 23, 1973 * * *.

      . An entry of this judgment underscores our view that the decision here does not represent resolution of the merits of the controversy. We think it important to note that the district court and all parties have agreed that school authorities were required to afford Cameron a prompt hearing on his suspension. Because of apparent confusion in the exercise of administration policy involving B.I.A. supervisors and the local school board and advisory boards, however, no clear direction for a hearing was communicated to the school principal. In light of the existing B.I.A. regulations requiring a proper hearing in student suspensions and expulsions, we would think that prompt implementation of these procedures in the Fort Yates schools will avoid the prospect of any similar suits in the future.


source: Caselaw Access Project

author: PER CURIAM: BUTZNER, Circuit Judge,

license: Public Domain

text:
    Sylvester MADISON et al., Appellants, v. William H. JEFFERS, Appellee.
    No. 73-1097.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 5, 1973.
    Decided March 20, 1974.
    Rehearing Denied May 2, 1974.
    Butzner, Circuit Judge, dissented and filed opinion.

      Ronald J. Jebaily, Florence, S. C., for appellants.
    John M. Scott, Florence, S. C. (Wright, Scott, Blackwell & Powers, Florence, S. C., on brief), for appellee.
    Before BUTZNER, FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

Sylvester Madison, his wife, and son brought this action under 42 U.S.C. §§ 1981 and 1982, and 42 U.S.C. § 3601 et seq. (Fair Housing Act of 1968), alleging that William H. Jeffers had unlawfully discriminated against them in refusing to sell land to them because they were black. The district court, sitting without a jury, heard the testimony of the witnesses ore terms, in open court, found that Jeffers had taken the land off the market for income tax reasons, not race, and that the plaintiffs had not communicated a willingness to purchase at a time when the property was for sale, and dismissed the action. The crucial issue on this appeal is whether these findings of fact are clearly erroneous and require reversal under FRCP 52(a). Because the record supports the findings of the district court, we affirm.

Jeffers bought a tract of land consisting of approximately 298 acres in 1940, and known as the Home Place. He also purchased a one-third undivided interest in a nearby tract of land in the same community known as the Jeffers Place, which he owned with his father-in-law and one Brunson. Both the Home Place and the Jeffers Place are on TV Road. Jeffers began selling land from the Home Place in 1942, but the sales were sporadic until 1960, when he began selling an average of two tracts a year for the purpose of providing money to educate his five children. The years 1964 and 1971, in each of which Jeffers sold three lots, were the only years in which he had conveyed more than two lots from the Home Place. Jeffers and the other co-owners also sold lots and tracts from the Jeffers Place, through Brunson as the agent, and also, in at least one instance, through Martin Real Estate Company. Jeffers had limited his sales from the Home Place each year because he had been advised, albeit erroneously, that if he sold more than five parcels a year, he would lose his right to capital gains tax status on the sales. He also had an average yearly income from sources other than land sales of only $4,000, and he testified that, in addition to his capital gains status, he wanted to keep his income taxes to a minimum.

Jeffers, at the request of a niece’s husband who worked for Martin Real Estate Company (Martin Co.), allowed twelve lots from the Home Place to be listed for sale with the Martin Company during 1970. Thereafter, a FOR SALE sign was placed on this property listing Martin Company as the agent, and Martin Company, from time to time, ran advertisements for sale of the property in the Florence newspaper. These advertisements were run at Martin Company’s instance, and Jeffers was not consulted prior to their publication. He was not aware the advertisements were inadvertently continued in the paper after the listing contract expired July 31, 1971.

During the summer of 1971, Madison noticed the FOR SALE signs on the property and the newspaper advertisements concerning the property. On August 13, 1971, Madison contacted L. A. Tallón, an employee of Martin Company, who thereafter took Mr. and Mrs. Madison to look at the property. The Madi-sons expressed interest in two different lots belonging to Jeffers, but they were also interested in other land in the vicinity. Tallón was not sure what the Madi-sons wanted to buy, as they had also expressed interest in some lots in the area that were commercial property. Tallón did advise the Madisons that they should make a deposit if they wanted to buy, but the Madisons said they wanted to investigate the matter further, and did not make a deposit. After the Madisons left, Tallón called Jeffers to advise him of the prospective buyers, and Jeffers immediately told Tallón that he could not sell any more land because of tax reasons. Tallón did not advise Jeffers at that time that the Madisons were black, nor did Jeffers know it.

Madison did make subsequent inquiries about other available property for sale in the area; he also apparently made inquiries concerning a title check on Jeffers’ land he had been shown.

On August 16, 1971, three days after their initial visit to the land with Tallón, Madison attempted to call Jeffers, who was not at home; Madison left word for Jeffers to return his call. Jeffers did return the call on the same day, and talked to Mrs. Madison. Mrs. Madison apparently asked Jeffers if he owned property adjacent to his lots with the FOR SALE sign on them, and he replied that he did not. The conversation, taken as a whole, certainly indicates that the Madisons had not specifically narrowed their search for property to lots owned by Jeffers, and Mrs. Madison testified that she was trying to find out who owned other property in the area of the Home Place. Jeffers did not tell Mrs. Madison that his property was not for sale at this time, and she did not question him as to the specific property that he owned.

The Madisons did not pursue the matter any further with either Martin Company or Jeffers until August 20, 1971. On that date, Madison told Tallón that they would buy Jeffers’ land, and Tallón told Madison that Jeffers refused to sell for tax reasons. Tallón then went to see Jeffers personally. Jeffers reiterated to Tallón his refusal to sell, and Tallón informed Jeffers that the prospects were colored people; Jeffers responded that he was not prejudiced, and repeated that he would not sell “any more of it on account of tax purposes.”

The following day, August 21, 1971, Madison called Jeffers and asked if the reason he would not sell was because Madison was black. Jeffers responded that it was not, and again reiterated the tax reason for not selling.

The Madisons obviously concluded that Jeffers was not sincere in his refusal to sell for tax reasons, and they filed a complaint with the Department of Housing and Urban Development (HUD) on December 30, 1971, alleging that Jeffers refused to sell them land because they were black. They did not communicate with Jeffers in 1972, after his new tax year began, to see if he would then sell to them.

The district court concluded that there was no proof of Jeffers’ failure to sell because of the Madisons’ race, color, religion or national origin, and found that Jeffers in fact refused to sell because of legitimate tax reasons. The record clearly shows that Jeffers consistently stated he would not sell for tax reasons, both before and after he discovered that the prospective purchasers were black. There was little or no evidence to indicate racial bias, other than the Madisons’ belief that this was the reason. The record also supports the finding of the district court that the Madisons never indicated to Jeffers or his real estate agent a willingness to purchase the property during the time it was available for sale. The civil rights statutes as interpreted make clear that one who sells or leases real estate “ [has] a right to refuse approval on any honest basis unrelated to the race of the prospective purchaser. . . . ” Pughs-ley v. 3750 Lake Shore Drive Cooperative Building, 463 F.2d 1055, 1056 (7th Cir. 1972). See also Fred v. Kokinokos, 347 F.Supp. 942, 944 (E.D.N.Y.1972); Bush v. Kaim, 297 F.Supp. 151, 162 (N. D.Ohio 1969). Since there is substantial evidence supporting the district court’s findings, we are unable to say that they are clearly erroneous.

Parenthetically, we point out that since the Madisons allege they seriously doubted Jeffers’ sincerity, their case would be immeasurably stronger had they waited only two days, until after January 1, 1972, and sought to buy the land in question during a new tax year instead of filing the complaint with HUD on December 30, 1971. We also note that two tracts from the Jeffers Place were sold by Jeffers and his associates some time prior to this dispute to black families who now live on the tracts.

The other assignment of error is likewise without merit. Evidence of statements made during settlement negotiations sponsored by HUD is specifically made inadmissible by the statute, 42 U.S.C. § 3610(a).

The judgment of the district court is accordingly

Affirmed.

BUTZNER, Circuit Judge,

(dissenting) :

Were this case concerned only with an evaluation of the district court’s findings of fact it is unlikely that I would dissent. I differ from my Brothers in the interpretation of the Civil Rights Act of 1866 and the Fair Housing Act of 1968. I would construe these Acts to afford relief to a black person whose offer to purchase property is rejected when the owner, having actual or imputed knowledge of the race of the prospective purchaser, withdraws the property from the market without a business or other rational purpose before the transaction can be completed in the ordinary course of trading. Cf. Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1971). Viewing the statutes in this light, I would reverse for the following reasons.

I

Undue significance has been attributed to the buyers’ inability to prove that the owner had actual notice of the buyers’ race before the owner told his agent that the property was withdrawn from sale. But it is not disputed that the owner’s agent knew the buyers were black. I would impute this knowledge to the owner. W. Seavey, Law of Agency § 97 (1964). Stated negatively, I would not interpret the Acts to allow a person who has put his property on the market to shield himself from knowledge of the race of prospective purchasers by interposing his agent.

II

When a person announces withdrawal of property from the market after he, or his agent, learns that the prospective purchaser is black, I would require him to prove that withdrawal served a business or other rational purpose. Objective facts, not subjective intent, must be proved to establish business necessity under Title VII of the Civil Rights Act of 1964. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Similarly, in housing discrimination cases brought under the Civil Rights Act of 1866 and the Fair Housing Act of 1968, objective facts should be required to sustain the owner’s claim of a business or other rational purpose for withdrawing property from the market. Cf. Stevens v. Dobs, Inc., 483 F.2d 82 (4th Cir. 1973). By relying on the owner’s subjective intent to minimize his taxes, instead of requiring objective facts, the district court used an erroneous legal standard to undergird its finding that the owner withdrew the lots from the market because of legitimate tax reasons.

Even though tax avoidance 'may qualify as a business purpose, the owner’s claim was not supported by objective facts. Cross-examination showed the owner had been misinformed about the-tax laws and exposed the lack of a factual basis for the explanation that he was guarding against subjecting profit from the sale to taxation as ordinary income.

The owner’s claim that' the sale would place him in an unfavorable tax bracket was never established by disclosure of his tax returns or by sufficient data to show what tax bracket he was in and what bracket the sale would have put him in. While the record discloses the gross sale price of the lots, the owner did not reveal his costs or his estimated expenses of sale. No objective facts established his profit or its impact on his taxes. Moreover, although the owner made few sales each year, he produced no evidence that he had ever previously refused to sell to a bona fide purchaser to avoid taxes.

The owner’s professed concern about even the slightest increase in his taxes is belied by the fact that after he withdrew the lots from the market, he joined his partners in selling another piece of property at a taxable profit during the tax year in question. The tax on this transaction was small, but not demonstrably smaller than the tax on the sale of the lots to the Madisons would have been on a deferred purchase plan similar to the plans used by the owner on other occasions. Newspaper advertisements of the lots, which were run before and after the owner told the agent the lots were not currently for sale, stated that terms were available.

III

Because the owner withdrew the property from the market without proving a business or other rational purpose, I would hold that the property was on the market when the buyers made their firm offer to purchase it one week after they had inspected it. It is not unusual for prospective purchasers of real estate to defer their final decision for a reasonable time after they initially inspect the property. I think the Acts should be construed broadly enough to embrace routine transactions made in the ordinary course of dealing. Otherwise, a black purchaser must make a firm offer to purchase when he first sees the property or risk its immediate withdrawal from the market. By deferring a firm offer, the prospective purchaser — whether he be black or white — may lose the opportunity to buy because another person has bona fidely acquired the property in the meantime. The black purchaser, however, should not suffer the added risk of having the property withdrawn for an unsubstantiated reason immediately after his race is known.

IV

Apart from the owner’s refusal to sell, the record discloses other unlawful conduct. The Fair Housing Act of 1968 makes it unlawful for a person to refuse to negotiate for the sale of a residential lot because of race. 42 U.S.C. §§ 3602(b) and 3604(a) (1970). The record discloses adequate proof that after the owner learned that the prospective purchasers were black persons, he flatly rejected their offer. He did not make any counter offer either to defer the sale to the next tax year or to arrange terms, as he did in other instances, that would have accommodated his professed desire to avoid taxes during the current year. I would hold that this conduct constitutes- a refusal to negotiate in violation of the Act.

V

Two other points, though minor, merit comment. It has been suggested that the Madison’s ease would be immeasurably stronger had they renewed their offer early in the next tax year instead of complaining to the federal government. Congress recognized the desirability of resolving complaints of housing discrimination by “conference, conciliation, and persuasion.” 42 U.S.C. § 3610(a) (1970). Neither the Act nor its legislative history justifies drawing an adverse inference against the complainant because he has followed the path of conciliation that Congress has charted.

Actually, Mr. and Mrs. Madison did attempt to purchase the property in the following year at a time when the excuse of taxes was no longer available to the owner. At the conciliation meeting in May 1972, the owner was asked to sell to them. He again refused, this time complaining about their attitude. The district court excluded this evidence. I believe its ruling was erroneous. The Fair Housing Act provides in part:

“Nothing said or done in the course of such informal endeavors may be made public or used as evidence in a subsequent proceeding under this subchap-ter without the written consent of the persons concerned.” 42 U.S.C. § 3610(a) (1970).

Here both parties evidenced their written consent by their pleadings. The buyer’s complaint alleges the incident, and the owner’s answer substantially admits it.

VI

I would not attribute to the owner an absence of racial motivation because he has sold other lots to black persons. The owner had sold, or contracted to sell, a number of lots from the tract containing the lots that Mr. and Mrs. Madison sought. All of these transactions were with white persons. From land that was nearby, but not contiguous to the property in litigation, the owner and his partners had sold numerous lots, including some to black persons. Sales to black persons from noncontiguous property afford a questionable basis for attributing an absence of racial motivation to a real estate operator who has sold lots from another piece of property only to white persons. Indeed, if any relevance could be attached to the noncon-tiguous sales, the geographic racial selectivity disclosed by this record suggests, rather than negates, discrimination.

ORDER DENYING REHEARING

Upon consideration of the petition for rehearing and of the suggestion for rehearing in banc, the court having been polled and less than a majority of the panel having voted for a rehearing and less than a majority of the court having voted for a rehearing in banc.

It is now ordered that the petition for rehearing and the suggestion for rehearing in banc be, and they hereby are, denied.

WINTER, CRAVEN, and BUTZNER, Circuit Judges, dissent.

      . In 1971, there were three transfers from the Home Place, but one of them had been contracted for in 1970, a year in which no other sales were made from the Home Place. One of the 1971 conveyances was an exchange of property. In 1971, three parcels were sold from the Jeffers Place.

      . Jeffers’ testimony is unclear as to whether he thought the five sales were from each tract, or from the Home Place and Jeffers tract combined. At any rate, the combined sales from both tracts never exceeded five in any one year, unless the sale contracted for in 1970 is counted in the year 1971. He never discussed his income tax with an attorney or accountant, rather relying on Brunson, a real estate agent.

      . Jeffers’ recollection is that he talked to Mrs. Madison on the telephone after Tallón came to see him. The time sequence followed for convenience here is that’ expressed by the Madisons. In all events, Jeffers did not know the Madisons were black until advised in his second conversation with Tallón, and he had refused to sell the property when he first talked to Tallón, before he knew their race.

      . The Civil Rights Act of 1866 provides in part:
      “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982 (1970).
      The Act “bars all racial discrimination, private as well as public, in the sale or rental of property . . . . ” Jones v. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968).

      . Title VIII of the Civil Rights Act of 1968 [42 U.S.C. § 3601 et seq. (1970)] prohibits public and private discrimination on the basis of race in the sale of housing by private owners, real estate brokers, and financial institutions. Section 3604(a) states that it is unlawful “To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin.” Section 3602(b) includes vacant residential lots in the definition of “dwelling.”

      . Bee note 2, supra.

        . 'The buyers alleged:
      “[A] meeting was held on May 1, 1972 at which time the plaintiffs again asked to purchase the said piece of land. Again the defendant refused and this time cited the plaintiffs’ ‘attitude’ as his reason.”
      The owner answered:
      “[A]t the conference, defendant was asked to sell a lot to the complainant Sylvester Madison which because of the complainant’s attitude and trouble he had caused the defendant, as well as the fact that he had not requested to purchase the property after the first of the year, the defendant refused.”
      At the trial, the buyers again expressed a willingness and ability to buy the lots. The court, however, sustained an objection to a question seeking to ascertain whether the owner was willing to sell.


author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ruth GRANT, Appellant.
    No. 272, Docket 73-1746.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 4, 1973.
    Decided April 1, 1974.

      William Epstein, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for appellant.
    Robert B. Hemley, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, Bobby C. Lawyer and John D. Gordan, III, Asst. U. S. Attys., on the brief), for ap-pellee.
    Before MEDINA, FEINBERG and TIMBERS, Circuit Judges.
   FEINBERG, Circuit Judge:

Ruth Grant appeals from a conviction in the United States District Court for the Southern District of New York for embezzling a package from the mails while employed by the Postal Service, in violation of 18 U.S.C. § 1709. Appellant, who is black, claims that we must reverse because the trial judge, Charles L. Brieant, Jr., refused to inquire of prospective jurors as to possible racial prejudice and because certain evidence was improperly admitted. Although we believe it would have been better to make the inquiry after it had been requested, we affirm the conviction because the evidence of guilt was overwhelming and the evidentiary rulings were proper.

The circumstances of appellant’s alleged crime need be given only briefly. According to the Government, on June 2, 1972, while working in a branch post office in the Bronx, Mrs. Grant was observed opening a package from which she took two shirts. When she left the post office later with the shirts in a shopping bag, she was arrested by postal agents. Soon after, she signed a statement confessing, among other things, that she had placed the shirts and several other pieces of mail in her shopping bag. At trial, Mrs. Grant again admitted taking the shirts but explained that she did not think she was stealing. According to appellant, the parcel was undeliverable, and when the contents fell out she discovered garments that would fit her grandchildren; she took both the shirts and the bill for them, which was also in the package, intending to pay the store. Mrs. Grant also had an explanation of how she happened to have the other items of mail in her bag. The all-white jury found her guilty.

Her principal argument to us is that the trial judge improperly refused to ask the following question on the voir dire of prospective jurors:

Would the fact that the defendant, Mrs. Grant, is a black woman prevent you in any way from rendering a fair and impartial verdict in this case?

Appellant contends that the judge committed reversible error under Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), and various decisions of other circuits. The argument appears to be couched in the constitutional terms of deprivation of the right to trial by a fair and impartial jury, although it can also be viewed as a request for the exercise of our federal supervisory powers.

We have carefully reviewed the record and conclude that, in view of the overwhelming evidence of appellant’s guilt, the error here, if any, was harmless beyond a reasonable doubt. See, e. g., Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). But see United States v. Booker, 480 F.2d 1310 (7th Cir. 1973). Mrs. Grant, by her own admissions, established every element of the offense with which she was charged. She signed a statement, whose voluntariness she does not question, confessing that she had knowingly taken the contents of the parcel from the mail, and she reaffirmed the substance of this statement on the stand under oath. Even her highly dubious claim that she intended to pay the store later was not a legally cognizable defense, as the judge correctly charged the jury. In addition, the judge did emphasize to the jurors the importance of being impartial and did ask general questions along these lines. Under all of the circumstances, we hold that the failure to inquire specifically into possible racial prejudice of prospective jurors was not reversible error.

We believe it appropx-iate, however, to express our view that trial judges in the future should inquire into the subject of racial px-ejudice, if x-easonably requested to do so by defense counsel. It hardly needs emphasis that jurors should be impartial. Mox’eover, appropriate inquiry into the possibility of racial prejudice does not demean the integrity of the federal courts, as the trial judge thought; rather, as Chief Justice Hughes stated in Aldridge:

We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred.

283 U.S. at 315, 51 S.Ct. at 473. Finally, we think that possible racial prejudice of prospective jurors can be effectively explored without undermining the trial judge’s salutary control of the scope of voir dire. Exercising his broad discretion under Fed.R.Crim.P. 24(a), the trial judge need not ask every question on this subject which the ingenuity of counsel can devise. It should suffice to ask a brief question or two, such as the one requested in this case, or even a more general query whether any juror is unable to judge the case fairly because of the race, creed or color of the defendant. See United States v. Dennis, 183 F.2d 201, 227-228 (2d Cir. 1950) (L. Hand, J.), aff’d, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); United States v. Bamberger, 456 F.2d 1119, 1129 (3d Cir.), cert, denied, 406 U.S. 969, 92 S.Ct. 2424, 32 L.Ed.2d 668 (1972); Rivers v. United States, 270 F. 2d 435, 436 (9th Cir. 1959), cert, denied, 362 U.S. 920, 80 S.Ct. 674, 4 L.Ed.2d 740 (1960).

We wish to make it clear that, in expressing in the preceding paragraph our view regarding an appropriate voir dire inquiry by trial judges on the subject of racial prejudice, we do not intend to undermine the “broad discretion granted to trial judges in this Circuit to determine bias of jurors on challenges for cause,” since this is an area where it has long been the view of our court that “the entire voir dire procedure in the empaneling of a jury, by its nature, is one best left to the sound discretion of the judge.” United States v. Ploof, 464 F.2d 116, 118, 119 n. 4 (2d Cir.), cert, denied, 409 U.S. 952, 93 S.Ct. 298, 34 L. Ed.2d 224 (1972). See Mikus v. United States, 433 F.2d 719, 722-724 (2d Cir. 1970); United States v. Palumbo, 401 F.2d 270, 275 (2d Cir. 1968), cert, denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969); United States v. Haynes, 398 F.2d 980, 982-987 (2d Cir. 1968), cert, denied, 393 U.S. 1120, 89 S. Ct. 996, 22 L.Ed.2d 124 (1969); Stephan v. Marlin Firearms Company, 353 F.2d 819, 822 (2d Cir. 1965), cert, denied, 384 U.S. 959, 86 S.Ct. 1584, 16 L.Ed.2d 672 (1966). See also Dennis v. United States, 339 U.S. 162, 168, 171-172, 70 S. Ct. 519, 94 L.Ed. 734 (1950).

Appellant’s second point on appeal relates to the admission of evidence against her. In her signed statement, which was a government exhibit, appellant admitted taking a plant and two magazines from the mails. Appellant objects to the failure to redact this information and also to the introduction into evidence of the parcel containing the plant. The judge ruled that these references were admissible as evidence of similar acts indicative of criminal intent. Appellant claims that taking a plant and magazines and taking children’s garments were not similar acts because the former items, unlike the latter, were undeliverable, of no value, and unreturnable to the sender; since they were destined for destruction under postal regulations, 39 C.F.R. § 159.4, taking them was not unlawful. However, the statute under which appellant was indicted, 18 U.S.C. § 1709, applies broadly to the embezzlement of any item intended to be conveyed by mail; it makes no exception for valueless and undeliverable items slated for destruction. Moreover, the postal regulations nowhere authorize the appropriation of such items by postal employees for their own use; indeed, the elaborate provisions of the regulations, 39 C.F.R. § 159, for the disposition of such items indicate quite clearly that appropriation for personal use is not authorized. We have examined the record and the other arguments made to the trial judge regarding these items of evidence, and we conclude that it was not error to admit them.

Judgment affirmed.

      . Appellant received a sentence of three years probation.

      . The other items were two magazines, Jet and Watehtower, and a plant.

      . In Aldridge, a capital case, a black was convicted by an all-white jury of murdering a white policeman. The Supreme Court reversed, holding that under such eircum-stances the trial court’s refusal to permit inquiry into possible racial prejudice of prospective jurors violated “the essential demands of fairness.” 283 U.S. at 310, 51 S. Ct. at 470.

      . In Ham, a black civil rights activist, well known in the local community, was convicted of possession of marijuana. His defense was that the police were “out to get him,” because of his controversial activities. The Supreme Court reversed, holding that, under the facts shown by the record, the refusal to examine jurors for possible racial prejudice violated the due process clause of the fourteenth amendment. 409 U.S. at 527, 93 S. Ct. at 848.

      . This court has apparently not yet decided whether a black defendant, concerned over possible racial prejudice, may require exploration of that possibility on voir dire. In United States v. Dennis, 183 F.2d 201, 228 (2d Cir. 1950), aff’d, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), we did note with apparent approval that the jurors in that case had been asked “as to race prejudice,” but the reference was only a passing one. Cf. United States ex rel. Haynes v. McKendrick, 481 F.2d 152, 157 (2d Cir. 1973).

      . We note that all six circuits to decide the question have held it to be error to refuse to permit reasonable inquiry into racial prejudice on voir dire, even absent the aggravating facts of Sam and Aldridge. See United States v. Robinson, 485 F.2d 1157 (3d Cir. 1973); United States v. Robinson, 466 F.2d 780 (7th Cir. 1972) ; United States v. Carter, 440 F.2d 1132 (6th Cir. 1971); United States v. Gore, 435 F.2d 1110 (4th Cir. 1970); King v. United States, 124 U.S.App.D.C. 138, 362 F.2d 968 (D.C.Cir. 1966); Frasier v. United States, 267 F.2d 62 (1st Cir. 1959). In none of these cases, however, did a defendant, as here, conclusively establish her guilt by her own admission.

      . See, e. g„ 39 C.F.R. § 159.4(a)(2), which specifically requires that magazines be disposed of without examination of their contents, and 39 C.F.R. § 159.2(h)(3), which provides that postal employees may not even bid at sales of salable, perishable items.


author: DUNIWAY, Circuit Judge:

text:
    CITIZENS COMMITTEE FOR the COLUMBIA RIVER et al., Plaintiffs-Appellants, v. Howard H. CALLAWAY, Secretary of the Army, et al., Defendants-Appellees, Port of Portland, a municipal corporation, Intervenor-Defendant-Appellee. Carl A. PETTERSON et al., Plaintiffs-Appellants, v. Howard H. CALLAWAY, as Secretary of the Army, et al., Defendants-Appellees, Port of Portland, a municipal corporation, Intervenor-Defendant-Appellee.
    Nos. 71-2052, 73-1417.
    United States Court of Appeals, Ninth Circuit.
    March 26, 1974.
    Marvin B. Durning (argued), of Cary, Durning, Prince & Smith, Seattle, Wash., for plaintiffs-appellants.
    Larry G. Gutterridge (argued), Kent Frizzell, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Sidney I. Lezak, U. S. Atty., Jack G.- Collins, Asst. U. S. Atty., Portland, Or., for defendants-ap-pellees.
    Before DUNIWAY and GOODWIN, Circuit Judges, and KELLEHER, District Judge.

       The Honorable Robert J. Kelleher, United States District Judge for the Central District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

These cases, although filed at different times, seek essentially the same relief — a halt to the proposed enlargement of the Portland International Airport, which contemplated extensive dredging and filling in the Columbia River, and to the proposed construction of a portion of Interstate Highway 205 and the construction of a highway bridge over the Columbia River, insofar as the plans called for filling in the river and the use of certain islands in the river for the highway and bridge.

In No. 71-2052, the court held that the plaintiff organizations did not have standing to sue, and dismissed the action. Thereafter Action No. 73-1417 was filed, seeking substantially the same relief, but adding additional grounds for relief. The court held that the plaintiffs had standing to sue, and tried the case on the merits. It found for the defendants on all issues and entered a judgment accordingly.

This panel heard oral argument in No. 71-2052 at Portland on April 30, 1973, but deferred submission until argument could be heard in No. 73-1417. That case was argued before the same panel on March 14, 1974, at San Francisco, and both cases were submitted for decision on that date.

Before the argument could be heard in No. 73-1417, we were advised by the parties that the Port of Portland has formally withdrawn its plan to enlarge the airport, and as a result the Corps of Engineers has cancelled the permit that it had issued for the work to be done in the Columbia River. In addition, the plans for highway 1-205 have been changed so that neither the highway nor the bridge will be built on filled land in the river. Both the Port and the Federal defendants concede that if the now abandoned plans were revived, in whole or in part, there would be a new situation, one in which it would be necessary to obtain a new permit, and to comply with the National Environmental Policy Act, and with all other applicable laws.

We are of the opinion that under the circumstances these actions are moot. Plaintiffs do not seriously argue otherwise, except as to one matter. A part of the islands in the river, the Government Island Game Refuge, was owned by the State of Oregon and managed by the Oregon State Game Commission. It had been acquired with federal assistance under the Pittman-Robertson Act, 16 U.S.C. § 669 (I960). After the Port of Portland conceived its airport expansion plan, the State sold the land to the Port, the proceeds to be used to buy other lands for the same use, as required by 50 CFR § 80.-5(b)(4). Plaintiffs complain that the sale was unlawful, and that title should be restored to the State. Otherwise they say, there would be an unlawful avoidance, as to this property, of the requirements of the Department of Transportation Act, § 4(f), 49 U.S.C. § 1653(f).

Because the Port’s plans have never been implemented, the Oregon State Game Commission has continued to manage the lands in question, much as before they were sold to the Port, but the Port retains title.

The validity of the sale is a peripheral question in this case. It is raised as a basis for the plaintiffs’ claim that the Department of the Interior’s approval or comment to the Corps of Engineers, in connection with the proposed Corps permit to the Port, was invalid. As to that issue, the case is clearly moot.

This is not a proper ease in which to decide whether the Port’s title to the Government Island Game Refuge is valid. The State of Oregon, which sold the land to the Port, is not a party to this action. The Department of Transportation concedes that, if future plans for 1-205 or the bridge should impinge upon the Refuge, section 4(f) would be applicable. These actions should not be kept alive merely for the purpose of litigating the Game Refuge issue.

Plaintiffs have filed motions that they be awarded substantial attorneys’ fees and expenses in these actions. They claim that their actions, although the trial judge ruled against them on every point, were “successful” in that they, and they alone, stopped the project to which the plaintiffs objected. We do not think that this is a proper case for such an award.

Such an award cannot be made against the United States even if plaintiffs had won the cases. United States v. Chemical Foundation, Inc., 1926, 272 U.S. 1, 47 S.Ct. 1, 71 L.Ed. 131; United States v. Worley, 1930, 281 U.S. 339, 344, 50 S.Ct. 291, 74 L.Ed. 887; Ewing v. Gardner, 1951, 341 U.S. 321, 71 S.Ct. 684, 95 L.Ed. 968; United States v. Gila River Pima-Maricopa Indian Community, 9 Cir., 1968, 391 F.2d 53, 56-57. The Congress has not provided for an allowance of fees or expenses against the United States in cases such as these; 28 U.S.C. § 2412 is to the contrary. The only statute on which appellants rely is the Clean Air Act of 1970, § 304(d), 42 U.S.C. § 1857h-2(d). This, however, is not the type of action authorized by § 304.

As to the Port of Portland, the situation is different. There is no immunity for the Port. But we cannot say that this is the exceptional case in which we should deviate from the normal rule that one’s attorneys’ fees and expenses may not be recovered from the other party to an action, especially when the other party won the case. The Port’s actions are as consistent with a firm and bona fide belief that it was at all times abiding by the law as they are with the plaintiffs’ assertion that the Port contumaciously refused to do so.The change in the Port’s plans is based upon changed circumstances relating to. air traffic. Nor is it certain that plaintiffs have successfully enforced important statutes enacted to protect and benefit the public. The only judgment on the merits indicates that they have not:

The motion for attorney fees, costs, and related expenses is denied.

Each case is remanded to the district court with directions to vacate the judgment and to enter a judgment dismissing the action as moot.