author: SPRECHER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, Donny Brurell Buckley et al., Intervening Plaintiffs-Appellees, v. BOARD OF SCHOOL COMMISSIONERS OF the CITY OF INDIANAPOLIS, INDIANA, et al., Defendants-Appellants.
    Nos. 73-1968 through 73-1984.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 20, 1974.
    Decided Aug. 21, 1974.
    Rehearing Denied Oct. 3, 1974.

      William C. Graves and Brian K. Lands-berg, Attys. U. S. Dept, of Justice, Washington, D. C., Stanley B. Miller, U. S. Atty., Donald P. Bogard, Deputy Atty. Gen., Donald A. Schabel, Fred S. White, Richard D. Wagner, William M. Evans, William F. Harvey, Indianapolis, Ind., for appellant.
    John O. Moss, John Preston Ward, Indianapolis, Ind., for appellee.
    Craig Eldon Pinkus, R. Davy Eagles-field, III, Indianapolis, Ind., for amicus curiae.
    Before SWYGERT, Chief Judge, KIL-EY, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   SPRECHER, Circuit Judge.

This is a school desegregation case originally brought by the United States against the Board of School Commissioners of Indianapolis, Indiana, but later expanded to include as defendants school districts located in the surrounding metropolitan area. These 17 separate appeals raise a host of divergent issues.

I

THE BACKGROUND

The United States initiated this action on May 31, 1968, pursuant to section 407(a) and (b) of Title IV, of the Civil Rights Act of 1964 (42 U.S.C. § 2000c-6(a) and (b)). The complaint charged the Board of School Commissioners for the City of Indianapolis with racial discrimination in the assignment of faculty and students.

The faculty portion of the charge was resolved first. On August 5, 1968, the district court concluded (pursuant to stipulation by the parties that racial factors had been considered in the assignment of teachers and staff members) that racial composition of faculty and staff deprived students of equal protection in violation of the Fourteenth Amendment. The court entered a consent decree ordering remedial injunctive relief commencing with the school year of 1968-69. Faculty and staff desegregation is one “important aspect of the basic task of achieving a public school system wholly free from racial discrimination.” United States v. Montgomery County Board of Education, 395 U.S. 225, 232, 89 S.Ct. 1670, 1674, 23 L.Ed.2d 263 (1969).

Public school teachers in Indianapolis then brought a class action in an Indiana state court and obtained a temporary restraining order to prevent transfers of teachers and staff without the consent of the teachers involved. De-fendánt school board and its members removed the case to the federal district court, which promptly dissolved the restraining order. Burns v. Board of School Commissioners, 302 F.Supp. 309 (S.D.Ind.1969), aff’d, 437 F.2d 1143 (7th Cir. 1971).

The student portion of the 1968 case was tried before the court on July 12-21, 1971. In accordance with Brown v. Board of Education (Brown I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the court found that the Indianapolis school board was deliberately operating a de jure dual school system on May 17, 1954 (the date of Brown I), and had not changed its policies in order to eliminate de jure segregation on or before May 31, 1968 (the date of the government’s complaint). Pursuant to Brown v. Board of Education (Brown II), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the court on August 18, 1971 ordered interim relief, retained jurisdiction to order further relief and directed the school board to file plans of affirmative action for the school year 1971-72 as required by Green v. County School Board, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). (“School board[s] [were] . . . clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination [would] be eliminated root and branch.”) United States v. Board of School Commissioners (Indianapolis I), 332 F.Supp. 655 (S.D.Ind.1971), aff’d, 474 F.2d 81 (7th Cir.), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973).

In Indianapolis I, the court concluded that the common law of Indiana was that the boundaries of a school district and of a civil city were coterminous, a rule finally recognized by statute in 1931. Statutes passed in 1961 and in 1969 provided that, if Indianapolis’ boundaries were extended, those of its school district could likewise be expanded. Such expansion, however, would be subject to a separate remonstrance or veto by a specified percentage of persons affected.

In 1969, after this suit had been commenced, the civil governments of the City of Indianapolis and of Marion County were consolidated into a unified, metropolitan city government by the so-called Uni-Gov Act, which expressly provides that the Indianapolis school district would not be affected by the expansion of the city. In other words, the school district (or School City) of Indianapolis was confined to an area in the central part of the new Uni-Gov, where it is surrounded by eight township school systems and by two additional city school corporations (Beech Grove and Speedway City), all operating independently within the new unified City of Indianapolis and within Marion County. The district court concluded that “the easy way out . . . would be to order a massive ‘fruit basket’ scrambling of students within the School City,” but “it won’t work.” Resegregation would rapidly occur because of a white exodus from what would be substantially black schools. The resegregation problem “would pale into insignificance if the [school] Board’s jurisdiction were coterminous with that of Uni-Gov” and “would be minimized still further if extended to Beech Grove and Speedway City, and to certain parts of the adjoining counties practically indistinguishable from the City of Indianapolis. . . .” The court ordered the United States as plaintiff to join as additional parties defendant the municipal corporations and school corporations which would have an interest in the court’s intended consideration of the entire metropolitan area. 332 F.Supp. at 678-680.

On September 7, 1971, the United States moved to add as parties defendant all school corporations in Marion County (eight townships and two city corporations). A few days later, the court permitted the Buckley plaintiffs (Donny Brurell Buckley and Aylcia Marqúese Buckley by their parents and next friend, Ruby L. Buckley) to intervene in their own right and as representatives of a class consisting of “all Negro school age children residing in the area served by” the Indianapolis school board. The intervening plaintiffs, in turn, joined as additional parties defendant the Governor and Attorney General of Indiana, the state Superintendent of Public Instruction, the state Board of Education and 19 school corporations (including the ten within Marion County which had been joined by the United States, plus nine in the adjoining counties of Boone, Hamilton, Hancock, Johnson, Morgan and Hendricks).

Citizens of Indianapolis for Quality Schools, Inc., a not-for-profit corporation, was permitted to intervene as a defendant. See United States v. Board of School Commissioners, 466 F.2d 573 (7th Cir. 1972), cert. denied. 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). Coalition for Integrated Education, an unincorporated association favoring a metropolitan plan of desegregation, was granted leave to file briefs as amicus curiae in both the district court and in this court.

The intervening plaintiffs filed an amended complaint in intervention in two counts. The first count alleged that the Indiana statutes effecting a governmental reorganization in Indianapolis were unconstitutional as racially discriminatory because schools were excluded from the consolidated metropolitan government, and prayed for an order consolidating the defendant school sys-terns. The second count alleged and sought relief from racial discrimination by the state and by local school authorities in the operation of the public schools of Indianapolis and the surrounding school corporations.

The additional defendants filed various motions attacking their joinder, the complaint in intervention and the court’s jurisdiction on a variety of grounds. All these motions were overruled by the district court. Several of the added defendants subsequently applied unsuccessfully to this court for writs of prohibition or mandamus to vacate the joinder and intervention orders; to compel the convening of a three-judge district court; and to compel the recusation of the district judge.

On September 28, 1972, the court for the first time ordered the development and submission of comprehensive plans for the desegregation of the Indianapolis district. In response, the Indianapolis board on February 8, 1973 submitted a plan, denominated the “Stabilization Plan.” The “Stabilization Plan” was subsequently rejected by the court on June 11, 1973.

The remedy phase (Indianapolis II) was tried before the court from June 12 to July 6 and on July 18, 1973. On July 20, 1973, the court entered its decision, concluding that (1) desegregation promising a reasonable degree of permanence could not be accomplished within the present boundaries of the Indianapolis school district; (2) the State of Indiana, its officials and agencies, had by-various acts and omissions promoted segregation and inhibited desegregation within the Indianapolis district, so that the state, as the agency ultimately charged under Indiana law with the operation of the public schools, has a continuing affirmative duty to desegregate the Indianapolis system; (3) the system could be effectively desegregated either by combining its territory with all or part of the territory served by the 19 surrounding school corporations in and adjacent to Marion County into a metropolitan system and then reassigning students within the expanded system or by transferring black students from the Indianapolis district to the 19 others, either on a one-way or exchange basis; and (4) the state, through its General Assembly, should first be afforded the opportunity to select its own plan; but if it failed to do so, the court would promulgate a plan. The court ordered interim relief in the form of student assignments for the 1973-74 school year sufficient to bring the number of black students in each Indianapolis elementary school up to approximately 15 percent, which was accomplished. United States v. Board of School Commissioners (Indianapolis II), 368 F.Supp. 1191 (S.D.Ind.1973).

Meanwhile, the Indiana General Assembly was organized in November, 1973 for a session to begin in January,- 1974. On December 6, 1973, the court issued a supplemental memorandum of decision, consisting principally of suggestions and recommendations for the General Assembly to implement Indianapolis II with an affirmative plan. United States v. Board of School Commissioners (Indianapolis III), 368 F.Supp. 1223 (S.D.Ind. 1973).

The General Assembly held its scheduled session. The only legislation it passed relating to this case was Senate Enrolled Act No. 119, which was signed into law by the Governor of Indiana on February 20, 1974. The statute provides for the adjustment of tuition among transferor and transferee schools and for the reimbursement of transportation costs by the state and is rigidly limited in its application:

This chapter applies solely in a situation where a court of the United States or of the State of Indiana in a suit to which the transferor' or transferee corporation or corporations are parties has found the following: (a) a transferor corporation has violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States by practicing de jure racial segregation of the students within its borders; (b) a unitary school system within the meaning of such Amendment cannot be implemented within the boundaries of the transferor corporation; and (c) the Fourteenth Amendment compels the Court to order a transferor corporation to transfer its students for education to one or more transferee corporations to effect a plan of desegregation in the transferor corporation which is acceptable within the meaning of such Amendment. This chapter shall not apply until all appeals from such order, whether taken by the transferor corporation, any transferee corporation or any party to the action, have been exhausted or the time for taking such appeals hás expired, except where all stays of a transfer order pending appeal or further court action have been denied.

II

INTERIM RELIEF WITHIN THE INDIANAPOLIS PUBLIC SCHOOL SYSTEM

In Indianapolis II, the district court directed the Indianapolis public school system (which the court referred to as IPS) to rearrange the enrollment patterns in its elementary schools, effective with the 1973-74 school year, so that each school would have a minimum black enrollment “in the area of 15%.” IPS was directed to pair or cluster schools in close proximity and to realign school assignment zones in order to expand the neighborhood or community school concept and to reduce the necessity for busing. If, after utilizing these procedures, certain schools did not meet the required percentages of black enrollment, pairing or clustering of schools in noncontiguous zones would be required. 368 F.Supp. at 1209.

The unanimous Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 27, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971), discussed these precise remedies and concluded that, even if paired or grouped zones for transferring blacks out of and whites into formerly segregated black schools were “on opposite ends of the city,” nevertheless “[a]s an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court.”

In response to Indianapolis II, IPS submitted a plan which proposed to close four predominantly black schools and to distribute the displaced students to white schools with excess unused capacity. After an evidentiary hearing on August 20, 1973 on the IPS plan, the district court found on August 27 that it (1) did not readjust the percentage of minority students in the elementary schools to approximately 15 percent; (2) did not provide for reducing the percentage of minority students at Short-ridge High School nor for increasing the percentage of minority students at Thomas Carr Howe High School, as previously ordered; and (3) did not provide for the use of any of the attendance zone, pairing or clustering devices required by the court. The court, concluding that' “the Board is unable or unwilling to comply with the orders, of this court,” appointed a two-man commission to develop desegregation plans, temporarily assigned the IPS planning staff to assist the commissioners, and required that application be made for available federal funds to assist in desegregation.

The Board of School Commissioners of IPS in the present appeal attacks the district court’s order insofar as it (1) held the board in default; (2) appointed the two-man commission to prepare plans of desegregation; (3) assigned the professional planning staff of IPS to the temporary service of the commission; and (4) ordered IPS to apply, for all available federal funds.

IPS alleges that the commission’s plan for interim relief, which reassigned some 9,200 students as opposed' to the IPS plan reassigning approximately 4,500 students, “in large part was copied from the earlier [IPS] plan.” IPS Brief, p. 27.

We fail tojperceive how desegregation and dismantlement of the IPS dual school system would be advanced by discarding the court’s interim plan, which has been in effect for an entire school year, and by substituting a similar plan that goes only half as far as the adopted plan in achieving desegregation.

“The measure of any desegregation plan is its effectiveness.” Davis v. Board of School Commissioners, 402 U.S. 33, 37, 91 S.Ct. 1289, 1290, 28 L.Ed.2d 577 (1971). “[A] school authority’s remedial plan or a district court’s remedial decree is to be judged by its effectiveness.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 25, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971). “The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation.” Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716 (1968).

Here the court’s interim plan, although concededly only a temporary measure, was at least twice as effective as the rejected IPS plan.

The percentage of nonwhite enrollment in IPS grew from 18.9 percent in 1950 to 26 percent in 1960 and to 35.9 percent in 1970. At the time of trial, the percentage of black enrollment was 41.1 percent. The IPS interim plan affected 30 of the approximately 100 elementary schools and brought nonwhite enrollment to approximately 15 percent in each school. The commission (court-adopted) interim plan affected significantly 61 elementary schools and tended to bring both predominantly white and black schools closer to 41 percent black enrollment per school.

The 1972 enrollment, the IPS-planned enrollment for 1973 and the commission-planned enrollment for 1973 compare as follows (N.C. refers to “no change” and — indicates a discontinued school):

Percentage Non-White Enrollment
School_Í972_IPS_Comm.
1 98.6 N.C. N.C.
2 23.7 N.C. 21.5
3 0.7 14.5 27.5
Percentage Non-White Enrollment
Sohool 1972 IPS Comm.
4 99.5 — 39.8
5 47.7 N.C. N.C.
6 —
7 38.8 N.C. N.C.
8 1.7 N.C. 15.2
9 32.1 N.C. —
10 —
11 40.7 N.C. N.C.
12 30.7 N.C. 20.8
13 —
14 6.9 15.2 15.1
15 0.6 N.C. 27.5
16 11.8 16.1 —
17 —
18 0.7 N.C. 19.2
19 3.8 15.0 20.4
20 11.8 15.0 20.1
21 9.9 15.0 20.2
22 9.1 15.0 15.0
23 —
24 —
25 —
26 93.0 N.C. 38.0
27 86.5 N.C. N.C.
28 3.0 15.0 20.4
29 100.0
30 0.7 15.0 30.8
31 0.0 N.C. 19.1
32 94.1
33 7.7 15.1 27.4
34 0.6 14.9 19.6
35 0.0 N.C. 19.2
36 100.0 N.C. —
37 99.0 N.C. 34.9
38 94.2 N.C. 35.0
39 4.2 15.1 20.1
40 —
41 99.6 N.C. N.C.
42 100.0 N.C. N.C.
43 99.8 N.C. N.C.
44 99.6 N.C. N.C.
45 98.4 N.C. N.C.
46 8.9 15.0 24.7
47 0.0 15.0 24.8
48 100.0 N.C. N.C.
49 5.4 15.0 24.7
50 0.0 N.C. 31.0
51 88.2 N.C. 39.9
52 77.2 N.C. 31.0
53 44.9 N.C. N.C.
54 0.0 N.C. 22.0
55 14.7 N.C. N.C.
Percentage Non-White Enrollment
School 1972_IPS Comm.
56 100.0 N.C. N.C.
57 5.0 15.0 23.1
58 0.6 15.0 23.2
59 18.7 N.C. N.C.
60 100.0 N.C. N.C.
61 1.9 15.0 19.9
62 1.6 N.C. 15.3
63 99.7 N.C. N.C.
64 99.4 N.C. 37.9
65 4.2 N.C. 19.7
66 95.1 — N.C.
67 36.6 N.C. 31.6
68 0.3 N.C. 18.02
69 99.2 N.C. 38.0
70 41.0 N.C. 34.7
71 96.7 N.C. N.C.
72 20.1 N.C. N.C.
73 81.9 N.C. 84.72
74 23.2 N.C. N.C.
75 84.6 N.C. N.C.
76 . 99.7 N.C. N.C.
77 1.2 N.C. 23.0
78 0.0 15.0 22.1
79 0.4 15.0 20.0
80 13.0 N.C. N.C.
81 2.5 N.C. 20.0
82 0.0 N.C. 20.2
83 63.1 N.C. N.C.
84 6.8 15.0 15.2
85 12.7 N.C. N.C.
86 53.2 N.C. N.C.
87 100.0 N.C. 29.9
88 0.5 N.C. 15.8
89 3.7 N.C. 18.89
90 8.0 15.1 15.0
91 18.7 N.C. N.C.
92 4.0 N.C. 23.18
93 1.0 N.C. 25.7
94 0.6 15.0 25.7
95 1.7 N.C. 22.4
96 0.8 15.1 16.4
97 25.4 N.C. N.C.
98 0.2 14.5 19.8
99 39.7 N.C. N.C.
100 4.4 15.1 15.1
101 36.2 N.C. N.C.
102 1.2 15.0 19.9
103 3.3 N.C. 19.8
104 45.8 N.C. 22.4
105 0.4 15.0 19.8
106 24.0 N.C. N.C.
Percentage Non-White Enrollment
School 1972 IPS Comm.
107 6.1 15.1 21.5
108 1.8 N.C. 17.7
109 0.9 N.C. 19.8
110 99.2 N.C. N.C.
111 37.3 N.C. 34.3
112 68.2 N.C. 38.0
113 6.5 15.0 25.7
114 52.5 N.C. 34.0

The district court properly rejected the IPS plan, which, two years after the finding of de jure segregation by IPS, went a relatively short distance toward desegregation. “The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” Green v. County School Board, supra at 439, 88 S.Ct. at 1695.

Faced with a totally unacceptable plan a few days before the beginning of the 1973-74 school term, the court turned to two independent commissioners to perform a herculean task within a miniscule period of time. The court said “in sorrow and with regret” that “never, since this thing started on the complaint of the United States in 1968 has any [IPS] Board . . . gone very far to do anything, really, unless they were pushed and ordered” and then “when they are ordered, they usually . . . come up with an alternative idea that doesn’t go quite as far as the order, or you want a stay or something —anything to put it off.”

In appointing the two commissioners to formulate a plan, the district court followed the procedure approved in Swann v. Charlotte-Mecklenburg Board of Education, supra at 16, 25, 91 S.Ct. at 1276, 1280:

In default by the school authorities of their obligation to proffer acceptable remedies a district court has broad power to fashion a remedy that will assure a unitary school system.
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It was because of this total failure of the school board that the District Court was obliged to turn to other qualified sources, and Dr. Finger [a court-appointed expert] was designated to assist the District Court to do what the board should have done.

The commission adhered to the district court’s guidelines as approved in Swann by altering attendance zones, by contiguous and non-contiguous pairing and clustering, by “ungerrymandering” and by creating larger “neighborhood schools.” The commission presented its recommended plan, entitled “The Quest for Human Dignity” within ten days of its appointment. This could not have been accomplished without the temporary use of the IPS planning staff. If in fact the commission made use of planning staff material, it obviously made much more effective use of that material than IPS had done.

We conclude that the district court acted properly in rejecting the IPS plan, in holding the IPS board in default, in appointing the commission and in temporarily assigning the planning staff of IPS to the commission.

Finally, in regard to the IPS board’s attacks on the district court’s orders, we hold that the court did not abuse its discretion in ordering IPS to seek available federal funds to expedite desegregation. This method of implementation of a decree intended to eliminate a dual school system has been approved by several courts. United States v. Texas, 342 F.Supp. 24, 29 (E.D.Tex. 1971), aff’d, 466 F.2d 518 (5th Cir. 1972); Whittenberg v. Greenville County School Dist., 298 F.Supp. 784, 790 (D.S.C.1969) (three-judge panel). In Plaquemines Parish School Board v. United States, 415 F.2d 817, 833 (5th Cir. 1969), the court of appeals found a “broadly written” order requiring application for federal aid unjustified, but added:

This direction is without prejudice to the right of the district court in the future in a specific situation as to specific funds to require that application be made when it is shown that the board has failed to apply for such funds as part of a plan or scheme to impede the end of the dual system of schools, or to discriminate against Negro children.

In the last analysis, we must look to Swann, where the Supreme Court said (402 U.S. at 28, 91 S.Ct. at 1282):

The remedy for such [de jure\ segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.

We believe that in this case the district court properly requested the defendants to seek federal funds.

Ill

RACIAL BALANCE WITHIN THE METROPOLITAN INDIANAPOLIS AREA

Even the Board of School Commissioners of IPS concedes that “it appears clear from the cases heretofore decided by the Supreme Court of the United States that the . . . obligation imposed by the Constitution of the United States upon IPS is the duty to dismantle the dual school system which was found to exist within its present boundaries.” Brief, pp. 12-13.

The district court’s opposition to a final desegregation plan within IPS was on the basis that “in the long haul, it won’t work.” 332 F.Supp. at 678. The court’s theory was restated in Indianapolis II (368 F.Supp. at 1197):

[T]he Court in its original opinion expressed some doubts as to whether or not a stable desegregation plan could be established within the confines of IPS, based upon the evidence adduced at that trial, which was all to the effect that when the percentage of Negro pupils in a given school approaches 40%, more or less, the exodus of white pupils from such a school becomes accelerated and irreversible, resulting in resegregation. However, additional evidence on this issue was adduced at the recent trial, and the Court bases its findings exclusively upon such latter evidence.
Having considered such evidence, the Court finds it to be a fact that when the percentage of Negro pupils in a given school approaches 25% to 30%, more or less, in the area served by IPS, the white exodus from such a school district becomes accelerated and continues. . . . All witnesses agreed that once a school becomes identifiably black, it never reverses to white, in the absence of redistricting. Therefore, progressions from white to black are irreversible once the critical percentage has been reached in the absence of intervention through redistricting. Below the critical percentage, however, schools tend to remain stable. . . .

The district court then concluded that the most effective method of realistically accomplishing desegregation of IPS would be either by combining IPS territory with that of all or part of the territory served by the ten Marion County (Uni-Gov) school districts and possibly also with that of some or all of the nine school districts in counties adjacent to Marion County, and then reassigning students within the metropolitan area thus created, or by transferring black students from IPS to the other districts, either on a one-way or an exchange basis.

Having found IPS guilty of de jure segregation, the court then proceeded to consider upon evidentiary hearing the situation in the remaining school districts. He concluded (368 F.Supp. at 1203):

There was no evidence that any of the added defendant school corporations have committed acts of de jure segregation directed against Negro students living within their respective borders. In fact, the evidence shows that, with a few exceptions, none of the added defendants have had the opportunity to commit such overt acts because the Negro population residing within the borders of such defendants ranges from slight to none.

In Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (July 25, 1974), where the lower courts had found a de jure segregated public school system in operation in Detroit (Bradley v. Milliken, 338 F.Supp. 582, 594 (E.D.Mich.1971), aff’d, 484 F.2d 215, 258 (6th Cir. 1973)), but with “no showing of significant violation by the 53 outlying school districts and no evidence of any inter-district violation or effect,” the majority of the Supreme Court said 418 U.S. at 745, 94 S.Ct. at 3127-3128:

To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy. . . .
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Disparate treatment of White and Negro students occurred within the Detroit school system, and not elsewhere, and on the record the remedy must be limited to that system.

The Supreme Court further concluded that, even if state agencies participated in the maintenance of the Detroit system, as the lower courts had held, it did not follow that an interdistrict remedy would be constitutionally justified or required.

In the present case based upon the district court’s comprehensive and detailed recital of the history of Indiana law and procedure pertaining to Indiana schools, appearing in 332 F.Supp. at 658-677 and in 368 F.Supp. at 1199-1205, we conclude, as the district court did, that the state officials have, by various acts and omissions, promoted segregation and inhibited desegregation within IPS, so that the state, as the agency ultimately charged under Indiana law with.the operation of the public schools, has an affirmative duty to assist the IPS Board in desegregating IPS within its boundaries (see Part IV hereof).

On the other hand, the district court’s findings, rulings, orders and discussion relating to a metropolitan remedy beyond the Uni-Gov boundaries are reversed. Those relating to a metropolitan remedy within Uni-Gov are vacated and remanded (see last section of this opinion).

IV

DISMANTLING THE DUAL SYSTEM WITHIN THE INDIANAPOLIS PUBLIC SCHOOLS

So-called “white flight” is not an acceptable reason for failing to dismantle a dual school system. “[I]t cannot ... be accepted as a reason for achieving anything less than complete uprooting of the dual school system.” United States v. Scotland Neck City Board of Education, 407 U.S. 484, 491, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1970). See also Monroe v. Board of Commissioners, 391 U.S. 450, 459, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968).

Where system-wide dualism has been found, as here, “ . . . [the] School Board has the affirmative duty to desegregate the entire system ‘root and branch,’ ” and “the District Court must . . . decree all-out desegregation . . . . ” Keyes v. School District No. 1, 413 U.S. 189, 213, 214, 93 S.Ct. 2686, 2700, 37 L.Ed.2d 548 (1973). We must guard against permitting the “white flight” considerations unduly to delay complete desegregation within IPS now that Milliken v. Bradley has disposed of the metropolitan remedy.

Subsequent to oral argument in these appeals, the record has been supplemented to include an order entered by the district court on July 3, 1974, whereby IPS has been directed to continue for the 1974-75 school year the interim plan in effect for the 1973-74 school year, except that feeder assignments to Thomas Carr Howe High School are to be arranged “to insure that the freshman class at such school for the coming school year will include a minority race enrollment of not less than 15%.”

Obviously many steps have been taken to dismantle the IPS dual school system within its boundaries, but more steps must be taken. The Supreme Court’s mandate to us to develqp a plan of desegregation that “promises realistically to work now” (Green v. County School Board, 391 U.S. at 439, 88 S.Ct. 1689), requires us to remand the case “for further proceedings consistent with [Milli-ken v. Bradley] leading, to prompt formulation of a decree directed to eliminating the segregation found to exist” within IPS.

V

MISCELLANEOUS ISSUES ON APPEAL

Recusation of District Judge. The state officials (Governor, Attorney General, State Superintendent of Public Instruction and State Board of Education) moved to recuse the district judge by filing an affidavit of alleged personal bias or prejudice under 28 U.S.C. § 144. The affidavit stated that on December 27, 1972 the judge submitted to an interview which was published in six weekly newspapers and which allegedly evinced an attitude of prejudgment on the liability of the state officials.

The portion of the .interview to which the state officials objected read as follows :

The judge explained that he had involved the city’s peripheral districts in the suit because the racial imbalance that is seen in the schools of the Indianapolis Public Schools system exists because of housing patterns in the city.

In Indianapolis I, which had been decided 16 months prior to the interview, the judge had found after hearing that “tl]ow-rent housing projects within the School City have significantly affected the racial composition of the schools.” 332 F.Supp. at 673.

“The remarks were derived from proceedings had before the court, and not on attitudes or conceptions that were formed outside the courtroom, so as to constitute disqualifying personal bias or prejudice.” Hanger v. United States, 398 F.2d 91, 101 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969).

Furthermore, comments, rulings or questions propounded to witnesses by the judge during the subsequent trial in which the state officials participated as defendants, and views expressed concerning the applicable law during that trial, do not establish personal bias or prejudice. Nor did the state officials file any subsequent affidavit covering trial events. We have examined the record and have found that the judge was necessarily firm at times particularly when it appeared that the defendants were foot-dragging and stalling, but never did he exhibit personal bias or prejudice, nor go beyond the bounds of an ordinary and reasonable trier of fact attempting to solve a difficult and lengthy school desegregation case.

Adding Parties-Defendant While Appeal Pending. The state officials argue that IPS appealed from Indianapolis I on September 10, 1971 and that everything that transpired in the district court between that date and February 1, 1973, when this court affirmed Indianapolis I (474 F.2d 81), is null and void. They point particularly to the addition of the state officials as parties-defendant on September 14, 1971, the filing of the amended complaint and complaint in intervention and the trial of Indianapolis II.

We disposed of this contention in an earlier appeal in this case, United States v. Board of School Commissioners, No. 72-1948 (Aug. 10, 1973), where we said (p. 3):

Defendants also contend that all jurisdiction passed from the district court when the notice to appeal was filed.
Certainly the district court had the power to enforce its earlier order while the appeal was pending. The Fifth Circuit addressed defendants’ jurisdictional contention in Plaquemines Parish Commission Council v. United States, 416 F.2d 952, 954 (5th Cir. 1969):
“The district court did not lose jurisdiction of the parties merely because an appeal was pending from the desegregation order. Appellants cite no school case authority to support their view that the district court lacks jurisdiction to promulgate additional orders to maintain the status quo and to insure the enforcement of its previous orders. Generally, a district court retains jurisdiction to enforce its prior orders, and this is particularly true with respect to desegregation cases. United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932); Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II); Green v. School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).”

Eleventh Amendment. The state officials and one of the Marion County defendants, Perry Township, contended that the Eleventh Amendment bars prosecution of an action “in essence - against the State of Indiana without the State’s consent or waiver of consent.”

In Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974), Mr. Chief Justice Burger said for a unanimous court (Mr. Justice Douglas took no part):

However, since Ex parte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714] (1907), it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law. Ex parte Young teaches that when a state officer acts under a state law in a manner violative of the Federal Constitution, he

“comes into conflict with the superior authority of that Constitution and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his .individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. 209 U.S. at 159-160 [28 S.Ct. [441], at 454], (Emphasis supplied.)”

In Cooper v. Aaron, 358 U.S. 1, 4, 19-20, 78 S.Ct. 1401, 1403, 1410, 3 L.Ed.2d 5 (1958), the Supreme Court said:

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873].
* *X- * * * *
The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedom guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.

The Eleventh Amendment does not prevent enforcement of the Fourteenth Amendment, which commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

Res Judicata. Several of the school boards outside of IPS territory contend that they were deprived of due process of law by the district court’s decision to make a portion of its prior holding in Indianapolis I res judicata, although these other school boards had not become parties to the litigation until after Indianapolis I had been decided.

On June 11, 1973, the court ruled that its previous judgment “to the effect that the School City of Indianapolis maintains a school system which is segregated by operation of law is res judicata .” In Indianapolis II the judge reiterated what part of Indianapolis I he considered binding on the parties. He said that the issue “that IPS was unlawfully segregating the public schools within its boundaries” was res judicata. This issue had been vigorously fought by IPS in the district court and had been affirmed by this court after equally spirited opposition by IPS here. United States v. Board of School Commissioners, 332 F.Supp. 655 (S.D.Ind. 1971), aff’d, 474 F.2d 81 (7th Cir.), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973).

In Indianapolis II, the district court did “not consider its conclusions in [regard to metropolitan desegregation] as res judicata.” 368 F.Supp. at 1195.

The outside school boards made no attempt to attack the issue of de jure segregation within IPS. In fact most of them, as well as the state officials, have argued in this appeal that IPS should be desegregated within its own boundaries.

In Bradley v. Milliken, 338 F.Supp. 582, 594 (E.D.Mich.1971), the district court found a de jure segregated public school system in operation in the City of Detroit. The Court of Appeals for the Sixth Circuit, after noting that the 53 school districts outside of Detroit which the district court included in the desegregation area should be made parties and be given an opportunity to be heard, added that “the District Court will not be required to receive any additional evidence as to the matters contained in its Ruling . . . reported at 338 F. Supp. 582, or its Findings of Fact and Conclusions of Law on the ‘Detroit-only’ plans of desegregation. . . .” 484 F.2d 215, 252, reversed on .other grounds, Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974).

This is precisely what the district court did in the Indianapolis ease. We hold that its rulings in this regard were proper.

Three-Judge Court. The school boards, outside IPS contend that the district court violated Indiana statutes by purporting to order the transfer of school children from IPS to outside school districts without seeking to convene a three-judge court under 28 U.S.C. § 2281.

The district judge found that the Indiana statutes alleged to have been violated applied only to school corporations within Marion County, Indiana, and he therefore denied the motion for a three-judge court on the ground that the statutes were not of the requisite general, state-wide application. Griffin v. County School Board, 377 U.S. 218, 227-228, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).

This court denied a petition by the school boards for a writ of mandamus or prohibition • and adopted the district court’s memorandum of disposition of the three-judge question in Metropolitan School District v. Dillin, No. 73-1101 (Apr. 2, 1973), and certiorari was denied at 412 U.S. 953, 93 S.Ct. 3007, 37 L.Ed.2d 1006 (1973).

In the Detroit school case, the Sixth Circuit denied applications for writs of mandamus or prohibition against the district judge for “failing to convene three judge courts ... in spite of the fact that . . . [certain school] Districts were not parties to the desegregation proceedings and had not been found to have committed any act of de jure segregation.” Bradley v. Milliken, 484 F.2d 215, 217-218 (6th Cir. 1973). The Supreme Court denied certiorari in the Detroit mandamus and prohibition cases at 410 U.S. 954, 93 S.Ct. 1418, 35 L.Ed.2d 687 (1973).

Exclusion of Sociological Evidence. The outside school boards appealed the court’s exclusion of the testimony of two expert sociological witnesses. Dr. David J. Armor would have testified that “mandatory busing programs could result in adverse sociological and psychological effects on the children involved . . ., that prejudice, racial identity, solidarity and desire for separatism was usually enhanced rather than diminished, and that over the short run busing for purposes of integration did not lead to significant gains in student achievement or interracial harmony.” Dr. Ernest van den Haag would have testified: “(a) Contact between the races does not reduce prejudice; and (b) Integration (as distinguished from desegregation) may heighten racial identity and reduces the opportunity for actual contact between the races.”

In Brown I, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Mr. Chief Justice Warren buttressed his conclusion that the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), deprived minority children of equal educational opportunities, with a footnote citing some sociological and psychological authority to that effect. 347 U.S. at 494 n. 11, 74 S.Ct. 686. This reliance on supportive sociological material by the Supreme Court has led to a number of abortive attempts to overrule Brown and reinstate Plessy through reliance on sociological and psychological material which purports to show that minority children thrive when segregated. Needless to say, these attempts have all failed.

In Mapp v. Board of Education, the district court approved and implemented a plan of desegregation for the Chattanooga, Tennessee public schools at 329 F.Supp. 1374 (E.D.Tenn.1971), and 341 F.Supp. 193 (1972). The majority opinion of a three-judge panel remanded the case to the district court for further consideration, particularly of recent sociological findings, in evaluating the impact of induced busing upon educational achievement and race relations. Cause No. 71-2006 (6th Cir., Oct. 11, 1972). Judge Edwards dissented on the basis that any reevaluatión of the sociological underpinnings of Brown was improper and misleading, and that counter-evidence was available in any event. Describing the majority’s reference to Armor’s article as “completely irrelevant to our legal problems,” he appended to his dissent another article criticizing it. On December 14, 1972, the panel opinion was withdrawn and the case heard en banc. On April 30, 1973, the Sixth Circuit decided eight-to-two to affirm the district court in Mapp v. Board of Education, 477 F.2d 851 (6th Cir.), cert. denied, 414 U.S. 1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973).

In Northcross v. Board of Education, 466 F.2d 890, 894 (6th Cir. 1972), the court said:

In short, the School Board argues, busing for the purposes of desegregation “is wrong.”
The Supreme Court has, of course, come to the opposite conclusion in a recent unanimous decision, holding that “bus transportation” is one “tool of desegregation” which school authorities may be required to use. Swann, supra, 402 U.S. 1, 30, 91 S.Ct. 1267 [28 L.Ed.2d 554]. Recognizing this to be the holding of Swann, Defendants nevertheless suggest that we come to a contrary conclusion on the basis of a single piece of much criticized sociological research, the conclusions of which are, by its own terms, inapplicable to the Southern school pattern. It would be presumptuous in the extreme for us to refuse to follow a Supreme Court decision on the basis of such meager evidence. Swann is controlling and requires us to sanction the use of bus transportation as a tool of desegregation when, as here, such busing is necessary to accomplish the dismantling of the dual system and its use does not pose intolerable practical problems.

The “much criticized sociological research” is Armor’s article cited supra in footnote 17 and criticized in Judge Edwards’ dissent in the original Mapp decision.

In Stell v. Savannah-Chatham County Board of Education, 220 F.Supp. 667, 673 (S.D.Ga.1963), the district court as early as 1963 relied upon a great volume of sociological and psychological material, including the testimony of Dr. van den Haag, in refusing to dismantle a dual school system. The Court of Appeals for the Fifth Circuit promptly entered an injunction requiring desegregation pending appeal on the merits at 318 F.2d 425 (5th Cir. 1963) and reversed the district court at 333 F.2d 55 (5th Cir.), cert. denied, 379 U.S. 933, 85 S.Ct. 332, 13 L.Ed.2d 344 (1964).

If this sort of sociological and psychological material were fully valid and if Brown I vitally depended upon it, even then only the Supreme Court itself could overrule Brown.

But, as we have seen, the validity of the material is in grave doubt and Brown is not dependent upon it. As Judge Sobeloff so aptly put it in Brunson v. Board of Trustees, 429 F.2d 820, 824, 826 (4th Cir. 1970) (Judge Sobeloff concurring and responding to a dissent which relied in part upon the sociological theories of Dr. Thomas F. Pettigrew):

There have always been those who believed that segregation of the races in the schools was sound educational policy, but since Brown their reasoning has not been permitted to withstand the constitutional command.
-X- -X- -X- * * -X-
This idea, then, is no more than a resurrection of the axiom of black inferiority as justification for separation of the races, and no less than a return to the spirit of Dred Scott. The inventors and proponents of this theory grossly misapprehend the philosophical basis for desegregation. It is not founded upon the concept that white children are a precious resource which should be fairly apportioned. It is not, as Pettigrew suggests, because black children will be improved by association with their betters. Certainly it is hoped that under inte-gregation members of each race will benefit from unfettered contact with their peers. But school segregation is forbidden simply because its perpetuation is a living insult to the black children and immeasurably taints the education they receive. This is the precise lesson of Brown. Were a court to adopt the Pettigrew rationale it would do explicitly what compulsory segregation laws did implicitly.

The district court in Indianapolis was acting well within its discretion in excluding the testimony of Drs. Armor and van den Haag since neither the district court nor this court can overrule Brown.

Attorneys’ Fees. The district court’s decision in Indianapolis II included a finding that “attorneys for intervening plaintiffs and their class . . . are entitled to recover their reasonable attorneys fees and expenses, and intervening plaintiffs are entitled to recover their costs.” 368 F.Supp. at 1210.

In Northcross v. Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973), the Supreme Court held that under section 718 of Title VII of the Emergency School Aid Act, 20 U.S.C. § 1617, “the successful plaintiff [in a school desegregation case] ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ”

Section 718 did not become effective until July 1, 1972, whereas the intervening plaintiffs became parties to the case on September 14, 1971. However, in Bradley v. School Board, 416 U.S. 696, 724, 94 S.Ct. 2006, 2022, 40 L.Ed.2d 476 (1974), the Supreme Court held that “the District Court in its discretion may allow petitioners a reasonable attorneys’ fee for services rendered” prior to July 1, 1972.

Section 718 provides in part that in a school desegregation case “the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

It is our understanding from the record that the district court has not awarded any specific fees to the intervening plaintiffs’ attorneys; the court has the discretion to do so if the attorneys’ services fall within the limitations set forth in section 718. Particularly, the court will be required to determine whether the intervening plaintiffs are “the prevailing party” under all the circumstances. We express no opinion on this issue inasmuch as the solution involves the intimate knowledge of this lengthy proceeding possessed only by the district court, whose discretion is called for by the statute.

In accordance with Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), we reverse the district court’s findings, conclusions, orders and rulings insofar as they pertain to a metropolitan remedy beyond the Uni-Gov boundaries; insofar as they pertain to a remedy within the boundaries of Uni-Gov, we vacate those rulings and remand for further proceedings consistent with that decision. The district court should determine whether the establishment of the Uni-Gov boundaries without a like reestablishment of IPS boundaries warrants an inter-district remedy within Uni-Gov in accordance with Milliken,

In all other respects, the findings, conclusions, orders and rulings of the district court are affirmed and the case is remanded for a prompt formulation of a decree directed to eliminating the segregation found to exist in IPS schools.

Reversed in part, affirmed in part, and remanded.

      . Acts 1931, Ch. 94, § 1, p. 291; Burns Ind. Stat.Ann. § 28-2301 (1948 Repl.), I.C.1971, 20-3-11-1.

      . Acts 1961, Ch. 186, §§ 1, 9, 10; Burns Ind.Stat.Ann. §§ 28-2338, 28-2346, 28-2347 (1968 Cum.Supp.), I.C.1971, 20-3-14-1, 20-3-14-10.

      . Acts 1969, Ch. 52, § 3, p. 57; Burns Ind. Stat.Ann. § 28-2346a (1970 Cum.Supp.), I. C.1971, 20-3-14-9.

      . Acts 1969, Ch. 173, § 314, p. 357; Burns Ind.Stat.Ann. § 48-9213 (1970 Cum.Supp.), I.C.1971, 18-4-3-14.

      . This court ruled ou three sucli applications: Avon Community School Corp. v. Dillin, No. 71-1695 (Sept. 27, 1971); Carmel-Olay Schools v. Dillin, No. 71-1702 (Oct. 1, 1971); and School Town of Speedway v. Dillin, No. 72-1063 (Feb. 2, 1972), cert. denied, 407 U.S. 920, 92 S.Ct. 2457, 32 L.Ed.2a 805 (1972).

      . Metropolitan School District v. Dillin, No. 73-1101 (Apr. 2, 1973), cert. denied, 412 U.S. 953, 93 S.Ct. 3007, 37 L.Ed.2d 1006 (1973).

      . Sendak v. Dillin, No. 73-1144 (Feb. 22, 1973), cert. denied, 412 U.S. 949, 93 S.Ct. 3011, 37 L.Ed.2d 1001 (1973); a motion for stay of a June 11, 1973 trial date pending the ruling on the petition for a writ of certiorari was denied by this court on May 23, 1973 and by the Supreme Court at 412 U.S. 937, 93 S.Ct. 2777, 37 L.Ed.2d 396 (1973).

      . A study of the school system, with interim recommendations for desegregation, was prepared at the request of the board by a team of representatives from t e Office of Education, Department of Health, Education and Welfare. Its recommendations were rejected by the board on June 17, 1969. See United States v. Board of School Commissioners, 332 F.Supp. 655, 670-671 (S.D.Ind.1971). A federally funded study by two “advisory specialists” employed by the school board resulted in a series of desegregation recommendations which were also rejected shortly before trial in 1971. See 332 F.Supp. at 672.

      . On August 20, 1973, an additional hearing was conducted, after which the court ruled that a i>lan submitted by the Indianapolis board failed to comply with Ihe interim relief order and that circumstances justified the appointment, as officers of the court, of a two-man commission to accomplish the task. On August 30, 1973, a plan formulated by the commissioners was approved. Applications by the Indianapolis board for a stay of implementation of the orders entered on August 20 and 30 were denied by this court, Misc. No. 73-8170 (Sept. 10, 1973), and by a Justice of the Supreme Court, Board of School Commissioners v. United States, No. A-278 (Sept. 14 and Sept. 21, 1973) (Relinquish J.). The plan has now been implemented. The commissioners were discharged on December 10,1973.

      . I11 an order entered on August 27, 1973, and expanded by an order denying stay entered December 18, 1973, the court ordered the Indianapolis board to apply “for Federal funds in all of the various categories available to school systems operating under orders of desegregation.”

      . See Bradley v. Milliken, 484 F.2d 215, 252 (6th Cir.), vacated on other grounds, - U.S. -, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974): “[T]he defendants and school districts involved will continue to supply administrative and staff assistance to the [court-appointed] panel upon its request.”

      . See also 332 F.Supp. at 676: “[RJesegregation rapidly occurs, and the entire central core of the involved city develops into a virtually all-Negro city within a city when, as in Indianapolis, the Negro residential area is largely confined to a portion of the central city in the first place.”

      . 28 U.S.C. § 144 provides that “[a] party may file only one such affidavit in any case,” but it also provides that the affidavit “shall state the facts and the reasons for the belief that bias or prejudice exists.”

      . The prior appeal was disposed of by an unpublished order, which under our Circuit Rule 28 “shall not be cited as precedent except to support a claim of law of the case.” That is the reason for citing it here.

      . Tl.e Eleventh Amendment to the Constitution of the United States provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of any Foreign State.” The Eleventh Amendment applies to suits against a state by citizens of that state. Fitts V. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535 (1899).

      . The amendment bars suits not only against the state when it is named a party but when it is the party in fact. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

      . See also Armor, “The Evidence on Busing,” Pub. Interest 91 (Summer 1972).

      . See also van den Ilaag, “Social Science Testimony in the Desegregation Cases,” 6 Vill.L.Rev. 69 (1960) ; van den Haag, “The Tortured Search for the Cause of Inequality,” Nat.Rev., Feb. 16, 1973, at 200.

      . Note, “Busing as a Judicial Remedy: A Socio-Legal Reappraisal,” 6 Ind.L.Rev. 710, 736-38 (1973).

      . “It was agreed among all parties and the court below t at Dr. Armor would have testified at the trial to the facts and conclusions stated in such article . . . . ” Brief for Carmel-Clay Schools, et al. in the present case at 42.

      . Armor’s article is also criticized in : Editorial, “Dangerous Orthodoxy,” N. Y. Times, July 5, 1972, at 38, cols. 1-2; Farber, “Lawyers’ Group Fears an Overreliance on Educational Studies,” N. Y. Times, June 11, 1972, at 37, cols. 1-5; Hodgson, “Do Schools Make a Difference,” Atlantic, Mar. 1973, at 40-41; Pettigrew, Useem, Normand, & Smith, “Busing: A Review of ‘The Evidence,’ ” I’ub. Interest, Winter 1973, at 88; Pettigrew, Useem, Normand, & Smith, “Pierced Armor,” Integrated Educ., Nov.Dee. 1972, at 3; Reinliold, “Study Critical of Busing Scored,” N. Y. Times, June 8, 1972, at 40, cols. 1-3; Strickman, “The Trouble with Armor,” 6 Urban Rev., Sept.Oct. 1972, at 20.

      . In Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), “The boundaries of the Detroit School District, are coterminous with the boundaries of the city of Detroit, . . . established over a century ago by neutral legislation when the city was incorporated

      . “Specifically it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of inter-district segregation. Thus an inter-district remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race.” 418 U.S. at 745, 94 S.Ct. at 3127. Cf. Mr. Justice Stewart’s concurring opinion : “Were it to be shown . . . that state officials had contributed to the separation of tiie races by drawing or redrawing school district lines . . . ; or by purposeful, racially discriminatory use of state Lousing or zoning laws, then a decree calling for transfer of pupils across district lines or for restructuring of district lines might well be appropriate.”


source: Caselaw Access Project

author: JAMES M. CARTER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert D. POLLACK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth N. DELLAMATER, Defendant-Appellant.
    Nos. 73-3218, 73-3363.
    United States Court of Appeals, Ninth Circuit.
    Aug. 27, 1974.
    Leslie A. Kast (appeared), West Covi-na, Cal., for appellant in 73-3218.

      David Elson (argued), of Simon, Sheridan, Murphy, Thornton & Hiner-feld, Los Angeles, Cal., for appellant in 73-3363.
    Thomas E. Kotoske, Asst. U. S. Atty., (argued), Los Angeles, Cal., for appel-lee.
   OPINION

Before CHAMBERS and CARTER, Circuit Judges, and SCHWARTZ, District Judge.

JAMES M. CARTER, Circuit Judge:

This is an appeal from the judgment of conviction on one count of conspiracy to violate and two counts of counselling and inducing a violation of 18 U.S.C. § 1005, which proscribes making, drawing, issuing, putting forth, or assigning any banking document or obligation without authority. We reverse.

I. PACTS

Defendants Robert D. Pollack (“Pollack”) and Kenneth N. Dellamater (“Dellamater”) agreed to engage in a business venture to salvage abandoned communication cables from the ocean floor off the coast of California, and the Pacific and Gulf of Mexico coasts of Panama in Central America. Together, they formed the Oceanographic Geophysical Corporation (“OGC”) to conduct the California salvage operations, and Oceantech Panama, Inc. (“Oceantech”) to conduct salvage operations off the Panamanian Coast.

Pollack had an extensive background in oceanographic and marine engineering and was to be in charge of the salvage operations. Dellamater was an attorney and was therefore to perform the legal work for the corporations. They hired Marvin Hopkins, a former ship captain for the University of California’s Scripps Institute of Oceanography, to direct the actual exploration and salvaging operations.

Although the California operations were largely abandoned after failure to obtain a federal permit for OGC, Pollack went to Panama on three separate occasions in 1970 to investigate the potential for a cable-salvaging operation and to secure the Panamanian government’s permission to conduct the operations.

The violations charged arise from the efforts of Pollack and Dellamater to obtain financing for the Panamanian operation, primarily through Edward Snead, an assistant vice-president of the International Branch of the Bank of America in Los Angeles, and an unindicted conspirator in this case. Snead’s job as lending officer included actively attempting to develop business for the Bank and during 1970 Dellamater discussed OGC and Oceantech with Snead on a númber of occasions following their introduction.

After a series of negotiations, a financing arrangement was set up whereby the Bank of America would fund the cable-salvaging operations through its Los Angeles International Office, and would look to a “standby” letter of credit from the Chase Manhattan Bank in New York City, secured by securities deposited by a group of investors in Washington, D.C. (“Mortgage Investors, Investors, Inc.”). Bank of America, however, required that the standby letter of credit, to which it would look to secure its own $5,000,000 line of credit in favor of OGC and Oceantech, would be renewable for ten years on an annual basis, at the option of the Bank of America. Mortgage Investors, Inc. had arranged for the Chase Manhattan Bank to guarantee to reimburse the Bank of America up to $5,000,000, but only at the end of the ten years. Therefore, this financing arrangement fell through.

On January 8, 1971, in response to an application signed by Pollack and Della-mater, a $90,000 letter of credit was issued by Snead in favor of Oceantech, the letter having been countersigned by another officer of the International Branch. It contained a “100 per cent Red Clause,” in effect making it unsecured. This unsecured letter of credit exceeded the lending limits beyond which Snead was not authorized to make unsecured loans without the approval of a superior. Snead testified at trial that he issued the letter of credit because of pressure from Pollack and the manager of a Long Beach branch of the Bank who was holding an OGC check until funds would be available to avoid an overdraft.

Snead failed to include any reference to the $90,000 letter of credit in the application for the $5,000,000 line of credit which he had submitted to the Bank’s General Loan Committee. There was no evidence at trial that Pollack or Della-mater induced or even knew about the omission.

Subsequently, on several occasions, Snead used his twenty years of experience as an officer of the Bank dealing in letters of credit to issue letters and amendments in favor of Oceantech in an amount totalling approximately $5,000,000. Contemporaneously dated applications for each of the letters and amendments were prepared by Snead and signed by Pollack and Dellamater (except for one $1,840,000 application of which Dellamater had no knowledge). Commercial pro-forma invoices for amounts of lead “at ten cents per pound F.O.B. Panama” to support drawings against the various letters of credit were drafted in Spanish on Oceantech Spanish language stationery, and were signed by Pollack.

During this period, Snead’s personal finances, which he had not revealed to Dellamater, were in a precarious state. He had become heavily involved in the stock market and eventually managed to entangle himself in several transactions in which he personally borrowed from, or lent money to, customers for whose accounts he was responsible. Snead subsequently requested and received personal loans from OGC and Oceantech by giving the impression to Dellamater and Pollack that he was using the proceeds to make direct payments to the Bank on behalf of several of his “shakey” accounts.

The salvage operations turned up very little abandoned cable, and that found was of no commercial value. The Bank’s net loss, after seizing certain funds of the defendants and venture-related assets, was approximately $2,648,000.

Pollack and Dellamater were convicted by a jury on counts of conspiracy to violate, and counselling and inducing violation of 18 U.S.C. § 1005. The district court ordered re-examination, of Della-mater’s books and records to ensure that he had not been wrongly convicted. Apparently the report and hearing on that re-examination satisfied the court that the verdict of guilty should stand. This appeal ensued.

II. REQUIREMENT OF INTENT TO INJURE OR DEFRAUD

18 U.S.C. § 1005 provides in pertinent part:

“Whoever, being an officer, director, agent, or employee of any member bank without authority from the directors of such bank, issues or puts in circulation any notes of such bank; or
“Whoever, without such authority, makes, draws, issues, puts forth, or assigns any certificate of deposit, draft, order, bill of exchange, acceptance, note, debenture, bond, or other obligation, or mortgage, judgment or decree; or
“Whoever makes any false entry in any books, report, or statement of such bank with intent to injure or defraud such bank . . . company, body, politic or corporate, or any individual person, or to deceive any officer of such bank ... or any agent or examiner appointed to examine the affairs of such bank, or the Board of Governors of the Federal Reserve System — •
“Shall be fined not more that $5,000 or imprisoned not more than five years, or both . ” (Emphasis added)

Pollack and Dellamater contend that “intent to injure or defraud” the Bank was an essential element under 18 U.S.C. § 1005. Since the indictment failed to so charge, and the district court failed to instruct the jury on such intent, they argue that their convictions must be reversed. We agree that the legislative history of § 1005 and the relevant case law compel the conclusion that “intent to injure or defraud” was intended to be an essential element of all three paragraphs of § 1005.

The original predecessor of § 1005 was Rev.Stat. § 5209. Section 5209 was quite similar to the present § 1005, except that the three paragraphs of § 1005, plus an additional crime of embezzlement or willful misapplication of bank funds or credits, were all part of the same paragraph. Further, § 5209 required intent to injure or defraud “in either ease,” referring to all parts of the section. See Evans v. United States, 153 U.S. 584, 592, 14 S.Ct. 934, 38 L.Ed. 830 (1894).

In 1913, Rev.Stat. § 5209 was re-codified as 12 U.S.C. § 592, which again included all parts of the section in a single paragraph, and which required “intent, in any case, to injure or defraud.” Then, in 1948, the statute was revised and its contents separated into three separate statutes: 18 U.S.C. §§ 334, 656, and 1005.

Although there is little case law interpreting the revision of 12 U.S.C. § 592 with respect to § 1005, those courts which have considered the elimination of the “intent to injure or defraud” language in § 656, have interpreted such elimination as an oversight and have held that intent to injure or defraud remains an element of the offense. United States v. Docherty (2 Cir. 1972) 468 F.2d 989, 994-995, Ramirez v. United States (9 Cir. 1963) 318 F.2d 155. The Reviser’s Notes to 18 U.S.C. §§ 656 and 1005 both state that the sections “are based on sections 592, 597 of title 12, U. S.C.” and that the revisions were intended to clarify and condense “without changing in any way the meaning or substance of existing law.”

In Docherty, supra, the Second Circuit, citing and relying in part on Ramirez, supra, held that the Reviser’s Notes indicated an intent to retain the requirement of intent to injure or defraud in § 656, stating:

“In applying the provision of 18 U. S.C. § 656 relating to ‘wilful misapplication,’ courts must be mindful of its history and avoid undue extension as a result of the ill-conceived work of the 1948 reviser. Until that time the statute, as previously noted, after defining the prohibited acts, had included a requirement of intent ‘to injure or defraud’ the bank or ‘to deceive’ a bank officer or agent appointed to examine the affairs of the bank. Some courts, referring to the Reviser’s Note, have properly held that intent to injure or defraud remains an element of the offense. . . . Ramirez v. United States, 318 F.2d 155 (9 Cir. 1963).... By the same token an intent to deceive remains an alternative mental element. See 18 U.S.C. § 1005.” 468 F.2d at 994-995.

In Ramirez, supra, this court also considered the legislative history of 12 U. S.C. § 592 and the effects of the recodi-fication into §§ 656 and 1005. The court read an intent to injure or defraud into § 656:

“Despite the omission of these words from the text of section 656, it is clear that ‘an intent to injure or defraud’ remains an essential element of any crime under that statute and accordingly must be proved . . . ”

(Footnote omitted) 318 F.2d at 158. Congress, in omitting “intent to injure or defraud” in the 1948 Revision, “undoubtedly considered these words to be redundant.” Id. See also United States v. Wiggenhorn (9 Cir. 1963) 312 F.2d 289; United States v. Tornabene (3 Cir. 1955) 222 F.2d 875, 878.

We hold that 18 U.S.C. § 1005, which, like 18 U.S.C. § 656, was derived from 12 U.S.C. § 592, likewise requires an intent to injure or defraud. Pollack and Dellamater were charged and convicted under the second paragraph of § 1005, which covers any person who, without authority, “makes, draws, issues, puts forth, or assigns” any banking document or obligation. Although the language “with intent to injure or defraud” appears not in this paragraph, but in the third paragraph of § 1005, it was undoubtedly intended as a requirement of all three paragraphs.

Since our Circuit read an intent to injure or defraud into 18 U.S.C. § 656, which concerned an officer, director, agent or employee who embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of a bank, we must also read that requirement into the second paragraph of 18 U.S.C. § 1005, which carries the same penalty for exceeding the authority of an agent of a bank in extending credit. We think that Ramirez dictates our decision.

Count 1, charging the conspiracy, did not include intent to injure or defraud as a part of the substantive offense, which was alleged to be the purpose of the conspiracy.

Counts 4 and 6 in substance alleged that Snead “willfully and knowingly” and without authority made and put forth letters of credit and amendments thereto, and that the defendants “coun-selled or induced” Snead’s offenses. There is no allegation as to Snead’s intent to injure or defraud.

We hold, for the reasons stated, that Counts 1, 4 and 6 did not allege a federal offense.

In requiring an intent to injure or defraud, we do not rest our decision on Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), where the statutory offense, 18 U.S.C. § 641, had a common law background. There is no such background for banking offenses.

III. THE JURY INSTRUCTIONS

With respect to Count 1, the conspiracy charge, the district court instructed the jury:

“As to each defendant, you must determine whether he was a conspirator by deciding whether he willfully and intentionally and knowingly joined with any other or others in the alleged conspiracy, and keep in mind specifically that the conspiracy alleged was to bring about the issuance of irrevocable letters of credit which were not authorized by the bank.”

This instruction requested the jury to determine whether there was a conspiracy to bring about the issuance of irrevocable letters of credit without authority. At no time did the court instruct that the substantive crime referred to in the conspiracy must include the purpose or intent to injure or defraud.

As to Counts 4 and 6, there was no instruction that the offense alleged to have been committed by Snead (which defendants were alleged to have coun-selled and induced) contained the element of an intent to injure or defraud.

The instructions, based on the improper indictment, were also erroneous.

IV. THE INSUFFICIENCY OF THE EVIDENCE AS TO DELLAMATER

The conviction of Dellamater must be reversed for another reason— the insufficiency of the evidence to sustain a conviction on the three charges alleged in Counts 1, 4 and 6.

There is no evidence that Dellamater counselled or induced Snead to issue the letters of credit without authority. There is evidence that Dellamater desired the letters of credit to be issued and that he was told by Snead that they had been issued in excess of his authority, but those factors do not constitute counselling or inducing. Customers of banks ordinarily have no knowledge of the authority of an agent of the bank. Even assuming Snead told Dellamater he was exceeding his authorized limits, Del-lamater knew many other bank officers or agents were involved in processing the credit and that some were superiors of Snead. The fact that Snead in fact extended the credit was some indication of approval by a superior even though he protested his limited authority.

It seems harsh to convict Dellamater of counselling and inducing the offense by the evidence of his request, desire and acceptance of the credit extended, and without direct evidence to support “counselling and inducing.”

With respect to Pollack, on the other hand, there was other evidence: he persuaded Snead to act, and sums of money were made available to Snead through Pollack’s accounts. From this the jury could infer that Snead was paid for his wrongful acts.

If the case is retried, the indictment must allege intent to injure or defraud in connection with the alleged wrongful acts. There will therefore be a heavier burden upon the government than that required in the original trial of the present case.

Reversed and remanded.

       Honorable Edward J. Schwartz, Chief Judge, United States District Court, Southern District of California, sitting by designation.

      . Rev.Stat. § 5209 provided in pertinent part: “Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association ; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.” (Emphasis added)

      . 12 U.S.C. § 592 provided:
      “Any officer, director, agent, or employee of ... a national banking association . who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of such . . . national banking association ... or who, without authority from the directors of such . . . national banking association . . . issues or puts in circulation any of the notes of such . . . national banking association . . . or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree, or who makes any false entry in any book, report, or statement of such . . . national banking association . . . with intent in any case to injure or defraud such . . . national banking association ... or any other company, body politic or corporate, or any individual person, or to deceive any officer of such . . . national banking association . . . and every receiver of a national banking association who, with like intent to defraud or injure, embezzles, abstracts, purloins, or willfully misapplies any of the moneys, funds, or assets of his trust, and every person who, with like intent, aids or abets any officer, director, agent, employee, or receiver in any violation of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof in any district court of the United States shall be fined not more than $5,000 or shall be imprisoned for not more than five years, or both, in the discretion of the court. * * * ” (Emphasis added)

      . 18 U.S.C. § 656 provides in pertinent part: “Whoever, being an officer, director, agent or employee of, or connected in any capacity with any . . . member bank embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities instructed to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both. . . . ”


author: PER CURIAM:

text:
    Claire KELLEY, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 73-2204.
    United States Court of Appeals, Ninth Circuit.
    Sept. 11, 1974.
    Claire Kelley, in pro. per.
    Charles E. Brookhart, Atty. U. S. Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before MERRILL and KILKENNY, Circuit Judges, and EAST, Senior District Judge.

       Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   PER CURIAM:

Appellant, a depositor of the Bank of America, seeks to enjoin the enforcement of an Internal Revenue Service summons issued pursuant to 26 U.S.C. § 7602. The summons commanded the officers of the bank to produce for examination “[a] 11 bank statements, ledger sheets, canceled checks, or any other records pertaining to the above named taxpayer in your possession or control which reflect deposit or withdrawal transactions or any other transactions in the checking, savings, or loan accounts with the Bank of America.” Appellant asserts that production of the demanded records will violate her rights under the Fourth and Fifth Amendments of the United States Constitution. She sought an order restraining the bank from granting the Internal Revenue Service access to the records and restraining the Internal Revenue Service from enforcing the summons. The district court dismissed her complaint for lack of jurisdiction and failure to state a claim.

Injunction by a taxpayer will not lie against the Internal Revenue Service or its officers in a situation such as this. A remedy at law exists through intervention of the taxpayer in judicial proceedings brought by the Commissioner in enforcement of his summons. Reis-man v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964).

The problem we face is that the bank here has indicated willingness to comply with the summons and thus enforcement proceedings appear to be unnecessary. With reference to this problem it was stated in Reisman:

“Nor would there be a difference should the witness indicate * * * that he would voluntarily turn the papers over to the Commissioner. If this be true, either the taxpayer or any affected party might restrain compliance, as the Commissioner suggests, until compliance is ordered by a court of competent jurisdiction. This relief was not sought here. Had it been, the Commissioner would have had to proceed for compliance, in which event the petitioners or the Bromleys might have intervened and asserted their claims.”

375 U.S. at 449-450, 84 S.Ct. at 514. In Fitzmartin v. Bingler, 244 F.Supp. 541 (W.D.Pa.1965), the court followed the procedure suggested by the Supreme Court. The action was dismissed as to officers of the Internal Revenue Service. However, the bank was' restrained from compliance with the summons until disposition of proceedings by the United States to compel attendance of the witnesses and production of the demanded records.

In the case before us questions are presented as to the standing of appellant to protest production under Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), and Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). Inclusion of canceled checks of the taxpayer among the documents sought would seem to give standing, at least as to such checks. However, all these issues can be resolved at hearings in due course on application by appellant for intervention in enforcement proceedings.

Accordingly we find no error in denial by the district court of an injunction against the Internal Revenue Service or its officers. However, an opportunity should be afforded appellant to seek an order restraining the bank from compliance with the summons until such constitutional claims as she has standing to assert have had judicial consideration.

The order dismissing the action is vacated and the matter remanded for further proceedings.


author: PER CURIAM.

text:
    Constance SNODGRASS, as Special Ad-ministratrix of the Estate of Michael P. Snodgrass, Deceased, Appellee, v. Wayne Lee NELSON et al., Appellants.
    No. 74-1138.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1974.
    Decided Sept. 27, 1974.

      Richard H. Battey, Redfield, S. D., for appellants.
    Stanley E. Siegel, Aberdeen, S. D., for appellee.
    Before MATTHES, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   PER CURIAM.

Constance Snodgrass, as Special Ad-ministratrix of the Estate of Michael P. Snodgrass, deceased, filed this suit to recover damages for the wrongful death of Michael P. Snodgrass, caused by fatal injuries he sustained in a multiple motor vehicle collision which occurred on a highway in South Dakota on January 24, 1972. The case was tried to the court, a jury having been waived. Judge Bogue found plaintiff was entitled to recover against defendant Wayne Lee Nelson, and rendered a judgment against Nelson for $150,000, plus interest and costs. All other parties were exonerated. Judge Bogue’s opinion constituting his findings of fact and conclusions of law is reported at 369 F.Supp. 1206 (D.S.D. 1974). Nelson has appealed and submits three issues for our consideration.

1. The evidence established as a matter of law that the contributory negligence of Constance Snodgrass, the driver of the Snodgrass automobile, and her husband, Michael P. Snodgrass, was more than slight, and consequently plaintiff was precluded from recovering under South Dakota law.

2. The evidence established as a matter of law that plaintiff and the deceased assumed the risk of injury and plaintiff is therefore precluded from recovering.

3. The verdict is excessive and is based upon speculative evidence.

It is obvious from the contentions of error as well as from the record that this action, like many arising from automobile accidents, presented controverted issues of fact. Thus, the question of whether the judgment is vulnerable to the attacks of appellant must be tested by the clearly erroneous standard embodied in Rule 52(a) Federal Rules of Civil Procedure. Under this rule, our scope of review is circumscribed. The controlling principle is announced in Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969):

In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether “on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). See also United States v. National Ass’n. of Real Estate Boards, 339 U.S. 485, 495-496, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950); Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 289-291, 80 S.Ct. 1190, 1198-1199, 4 L.Ed.2d 1218 (1960).

Id. at 123, 89 S.Ct. at 1576. See also Cleo Syrup Co. v. Coca-Cola Co., 139 F.2d 416, 417-418 (8th Cir. 1943), cert. denied, 321 U.S. 781, 64 S.Ct. 638, 88 L.Ed. 1074 (1944).

It is also settled that the complaining party has the burden to clearly demonstrate error in the court’s findings. This is a strong burden where, as here, the findings are primarily based upon oral testimony and the trial judge has viewed the demeanor and credibility of witnesses. Chalk v. Beto, 429 F.2d 225, 227 (5th Cir. 1970); St. Louis Typographical Union No. 8 v. Herald Company, 402 F.2d 553, 557 (8th Cir. 1968), and cases cited therein.

A careful analysis of all of the evidence accurately marshalled in Judge Bogue’s opinion; convinces us that appellant has failed to discharge the burden of demonstrating that the court’s findings are clearly erroneous.

The appellant has also failed to satisfy us that the amount of the judgment is excessive to the extent that it shocks the judicial conscience requiring reversal. The subject of excessive verdicts has been presented to this and other federal courts in numerous cases. In Solomon Dehydrating Co. v. Guyton, 294 F.2d 439 (8th Cir. 1961), authored by Judge, now Mr. Justice Blackmun, the issue was exhaustively reviewed. In concluding his discussion, Judge Black-mun emphasized again “that in our opinion, inadequacy or excessiveness of a verdict is basically, and should be, a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards . . . and that we shall continue to consider review, as we have said before, not routinely and in every case, but only in those rare situations where we are pressed to conclude that there is ‘plain injustice’ or a ‘monstrous’ or ‘shocking’ result.” 294 F.2d at 447-448.

As late as 1973, we announced adherence to the standard of review expressed in the Solomon case. See Krall v. Crouch Brothers, Inc., 473 F.2d 717 (8th Cir. 1973). In this case, the record reveals that plaintiff offered evidence which in our judgment was of sufficient probative value to justify Judge Bogue in awarding plaintiff damages in the sum of $150,000. Finding no error, we affirm.


author: McWilliams, circuit judge.

text:
    HEBER VALLEY MILK COMPANY, Plaintiff-Appellant, v. Earl BUTZ, United States Secretary of Agriculture, Defendant-Appellee.
    No. 73-1725.
    United States Court of Appeals, Tenth Circuit.
    June 26, 1974.
    Rehearing Denied Nov. 1, 1974.

      Richard W. Giauque, Salt Lake City, Utah (Van Cott, Bagley, Cornwall & McCarthy and Jean L. W. Barnard, Salt Lake City, Utah, on the brief), for plaintiff-appellant.
    Judith S. Feigin, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., C. Nelson Day, U. S. Atty. and Robert E. Kopp, Atty., Dept, of Justice, on the brief), for defendant-appellee.
    Before CLARK, Justice, and HILL and McWILLIAMS, Circuit Judges.

       Honorable Tom C. Clark, Associate Justice Retired, United States Supreme Court, sitting by designation.

   McWilliams, circuit judge.

Pursuant to 7 U.S.C. § 608c(15)(B), Heber Valley Milk Company filed in the United States District Court for The District of Utah a petition for review of a milk order of Earl Butz, the Secretary of Agriculture. Butz incorporated in his answer by reference a certified copy of the transcript of proceedings before the Department of Agriculture and then moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the ground that there was no genuine issue as to any material fact and that he was entitled to judgment as a matter of law. The motion further set forth that it was based upon “the pleadings, the record of the administrative proceedings before the Secretary of Agriculture, . . . and upon controlling law . . .”

Upon hearing and after listening to the arguments of opposing counsel, the trial court granted Butz’s motion for summary judgment and entered judgment in favor of the Secretary. Heber Valley now appeals. We reverse under the authority of our recent decision in Nickol v. United States, 501 F.2d 1389 (10th Cir. 1974).

In Nickol we held that summary judgment is inappropriate in a judicial review under the Administrative Procedure Act of 1946 of an order and decision of an administrative agency when the issue to be decided is whether the administrative order is supported by substantial evidence, and there is substantial controversy as to the material facts. We indicated in Nickol that it is the duty of the trial court to examine the record as made before the administrative agency, and then to “find,” and to identify, the “facts” which it deems to be supportive of the agency’s order, if such be the trial court’s resolution of the matter. The trial judge in Nickol in his judgment and order stated that he had examined the record as made before the administrative agency and that he had “concluded” that there was evidence to support the agency’s decision. But in Nichol we held that such was not enough, and that the trial court must itself make “a finding of fact or facts as to what is the substantial evidence which supports the agency determination. . . . [and that] [t]he appellate court cannot properly review the district court’s action without such findings.”

Both the rule and reasoning of Nickol dictate a reversal of the instant case and a remand with directions that the trial court examine the record of proceedings as made before the Secretary of Agriculture and then make findings as to the facts which it deems to be supportive of the ■ Secretary’s decision and order. The central issue in the instant case is whether the order and decision of the Secretary of Agriculture is “in accordance with law,” which carries with it a determination as to whether the order is supported by substantial evidence. See, for example, Chiglades Farm, Ltd. v. Butz, 485 F.2d 1125 (5th Cir. 1973); Fairmont Foods Company v. Hardin, 143 U.S.App.D.C. 40, 442 F.2d 762 (1971); Lewes Dairy, Inc. v. Freemans, 401 F.2d 308 (6th Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1187, 22 L.Ed.2d 455 (1968); and Freeman v. Hygeia Dairy Company, 326 F.2d 271 (5th Cir. 1964).

In the present case, unlike Nickol, there is nothing in the record before us to indicate that the trial judge before granting summary judgment had himself examined the record as theretofore made before the Secretary of Agriculture. From the colloquy between the court and counsel it would appear that such was not the case, and that in granting the Secretary’s motion for summary judgment, the court relied on counsel’s statements as to what was in the record. In any event, under Nickol, the trial court must itself examine the record as made before the agency and must itself find and identify the supportive facts.

In reversing we are aware that the trial court in granting the summary judgment was following procedures which were often used in a proceeding of this type. However, Nickol, which was decided only recently and long after the trial court acted in the present case, has changed all that.

Judgment reversed and case remanded for further proceedings consonant with the views herein expressed.


author: HUFSTEDLER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mauro DELMENDO, Defendant-Appellant.
    No. 73-2707.
    United States Court of Appeals, Ninth Circuit.
    Sept. 16, 1974.

      Benjamin J. Cayetano, Honolulu, Hawaii, for defendant-appellant.
    Harold M. Fong, U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and SKOPIL, District Judge.

      Honorable Otto Skopil, Jr., District of Oregon, sitting by designation.

   OPINION

HUFSTEDLER, Circuit Judge:

Delmendo appeals from a judgment denaturalizing him pursuant to 8 U.S.C. § 1451(d). The issue is whether the evidence supported the district court’s determination that Delmendo lacked intention to reside permanently in the United States when he filed his petition for naturalization. We conclude that the evidence was insufficient and that the district court’s contrary conclusion was based on a misapplication of 8 U.S.C. § 1451(d).

Under section 1451(d), proof that a naturalized citizen established a permanent residence abroad within five years from his naturalization is “considered prima facie evidence of a lack of intention on the part of such person to reside permanently in the United States at the time of filing his petition for naturalization . . . . ” In absence of countervailing evidence, the prima facie evidence is “sufficient ... to authorize . . . the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation ff

We are of the view that the evidence was inadequate to sustain a finding that Delmendo established a permanent residence abroad and that even if he did so, the countervailing evidence of his intent at the time of naturalization to reside permanently in the United States defeated the statutory presumption.

Delmendo reached Hawaii in 1946 from his native Philippines. He was steadily employed in Hawaii until .1953, when he visited the Philippines and married. He returned to Hawaii five months later, leaving his bride in the Philippines because he could not afford to bring her with him. (He did not revisit the Philippines until 1958, despite the fact that his wife had borne him a child in 1954.) When he returned to Hawaii, he promptly commenced naturalization proceedings. More than four years elapsed after he was naturalized and before he rejoined his wife and child in the Philippines. During all of those years he continuously resided and worked in Hawaii. His testimony revealed attachment to life in the United States.

Delmendo also testified that when he went to the Philippines in 1958, he intended to return to Hawaii, but extended illness left him without financial means to do so. He remained in the Philippines for over three years, at which time he was informed by the Department of State that his three-year residence abroad automatically deprived him of American citizenship. He did not learn that the statute upon which that advice was predicated was declared unconstitutional until shortly before the proceedings that bring him here.

We do not think that his years of residence in the Philippines, dependent as they were on his impoverishment, illness, and erroneous legal advice given him by the State Department, can be equated either with an intent to establish permanent residence in the Philippines or with an intent not to make the United States his permanent home when he applied for naturalization.

Because proof was inadequate that Delmendo intended to establish permanent residence in the Philippines, the foundation for the statutory presumption was not laid. But, even if we assumed, arguendo, that he did establish permanent residence in the Philippines, the statutory presumption was overcome by the countervailing evidence. Although the constitutionality of the section 1451(d) presumption was upheld in the old case of Luria v. United States (1913) 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101, sustaining the presumption in a predecessor statute, the Court noted the weakness of the presumption when the intervening time between naturalization and permanent residence abroad approaches five years. Under such circumstances, the presumption is so weak “as to require but slight countervailing evidence to overcome it.” (Id. at 27, 34 S.Ct. at 15.) Applying this standard to our facts, we have no difficulty in concluding that the presumption was overcome. The same conclusion was reached on similar facts in Perrone v. United States (3d Cir. 1928) 26 F.2d 213.

Reversed.

      . Act of June 27, 1952, ch. 3, § 352(a)(1), 66 Stat. 269. This section was held unconstitutional in Schneider v. Rusk (1964), 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218.

      . In reviewing denaturalization based on claims that naturalization was illegally or fraudulently obtained, we are not bound by the district court’s findings even if they are not clearly erroneous. (Bechtel v. United States (9th Cir. 1949), 176 F.2d 741, 744.)

      . Act of June 29, 1906, ch. 3592, § 15, 34 Stat. 601. Although we do not reach the constitutional issue, we note that the continued vitality of Luria is dubious in the light of Leary v. United States (1969), 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.