author: TRASK, Circuit Judge:

text:
    Howard B. BURDEAU, Plaintiff-Appellant, v. TRUSTEES OF the CALIFORNIA STATE COLLEGES et al., Defendants-Appellees.
    No. 73-1622.
    United States Court of Appeals, Ninth Circuit.
    Nov. 29, 1974.

      Howard B. Burdeau in pro per.
    Evelle M. Younger, Atty. Gen., Los Angeles, Cal., for defendants-appellees.
    Before TRASK, CHOY and GOODWIN, Circuit Judges.
   OPINION

TRASK, Circuit Judge:

This appeal is by Howard B. Burdeau, a non-tenured assistant professor at California State College, San Bernardino, from an opinion and order of the District Court dismissing without leave to amend the action he had filed resisting the failure of the school to rehire him.

Appellant was a probationary assistant professor with a one-year appointment for the 1970-71 academic year. That was his first year of employment. Appellant would not have been eligible for tenure until the passage of four years of service with successive annual reap-pointments. On February 19, 1971, appellant was informed by appellee, John M. Pfau, President of the College, that he would not be reemployed. The letter gave no reason for the action.

Pursuant to California statute (California Education Code § 24201), the Trustees have the power to provide by rule for the government of their appointees and employees, including reappointment of non-tenured academic employees. California State College, San Bernardino, has formulated procedures which include a consultative process for rehiring of professors. In accord with this process President Pfau obtained the evaluations and recommendations of the Division of Social Sciences Committee on Retention, • Promotion and Tenure: from the College-wide Committee of Retention, Promotion and Tenure; and, from the Vice President for Academic Affairs. Individuals participating were to evaluate and base their recommendations upon teaching, professionally recognized research and creative activity, and college service. All three recommendations were considered by President Pfau in his decision.

Appellant availed himself of existing grievance procedures, and a hearing was held upon his grievance. At that hearing appellant declined to proceed unless and until he was first furnished the evidence that the several committees or President Pfau had relied upon in making their determinations, or until he had been given access to his personnel file. “Professor White kept insisting that af-fiant outline for the Committee what evidence had been ignored, and affiant [Burdeau] just as persistently replied that this was impossible since he was unaware of what evidence had been considered.” With the matter in a standoff, appellant withdrew and filed this action without presenting any evidence or making any statement.

Appellant in his complaint before the District Court claimed a denial of his fourteenth amendment due process rights. He alleged:

“That nowhere in the applicable California statutes, rules of Defendant Trustees, or California State College, San Bernardino consultative process is there any requirement that the President of the College, or the Committees and individuals making recommendations to him, inform the affected academic employee of the reasons for a negative decision or negative advisory recommendation, nor do said statutes, rules and consultative process require that the matters considered before making these decisions and recommendations be revealed to the affected academic employee.” C.T. at 3, 4.

In addition, he asserted “that the reason for the decision not to reappoint plaintiff was to retaliate against him for his expressed opposition to policies and practices within his department and his utilization of the grievance procedure.” He also alleged that the refusal to give reasons for his rehiring was a violation of the fifth amendment.

The District Court after the decisions of the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); and in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); and our decision in Toney v. Reagan, 467 F. 2d 953 (9th Cir. 1972), held that Bur-deau’s action in failing to complete the administrative hearing constituted a failure to exhaust adequate state administrative procedures and precluded him from maintaining a Civil Rights action. The action was dismissed without leave to amend.

Appearing in propria persona before this Court, appellant stated in his opening brief the questions presented by his appeal as follows:

“1. Whether under the Fourteenth Amendment and 42 U.S.C. 1983, an individual had rights of due process and equal protection in California State College dismissal actions.
“2. Whether the recent Roth, (408 U.S. 564, [92 S.Ct. 2701, 33 L.Ed.2d 548], 1972), or Sindermann, (408 U.S. 593 [92 S.Ct. 2694, 33 L.Ed.2d 570] 1972), eases removed Federal jurisdictional protection from employment.”

No question is raised on appeal as to first amendment rights, and that frequently discussed problem is not argued in the briefs of either of the parties. We do not consider it here.

Appellant equates President Pfau’s letter not to reemploy as a “firing.” To quote further from appellant’s opening brief:

“The plaintiff contends that a ‘no-reason’ firing does, in fact, denote an implied reason because it is subject to interpretation by third parties. Furthermore, it does not give the fired employee any protection for the employer can at a later date make any statement as to the nature of the firing to the serious injury of the ‘fired’ employee.”

A non-tenured professor, as was Bur-deau, who is employed on an annual basis is not “fired” simply because his contract is not renewed — neither expressly nor by implication. See Board of Regents v. Roth, 408 U.S. 564, 573-574, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The notice of non-renewal, supra n.l, was delivered to appellant well in advance of the time required by rule for such notice. It was not couched in terms derogatory of appellant’s character or performance or even faintly critical of his ability. It was much as stated in Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972):

“The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For ‘[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ Wisconsin v. Constantineau, 400 U.S. 433, 437 [91 S.Ct. 507, 510, 27 L.Ed.2d 515].' ... In such a case, due process would accord an opportunity to refute the charge before University officials. In the present case, however, there is no suggestion whatever that the respondent’s ‘good name, reputation, honor, or integrity’ is at stake.
“Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. For ‘[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . . .’ Joint Anti-Fascist Refugee Committee v. McGrath, supra, [341 U.S. 123,] at 185, [71 S.Ct. 624, at 655, 95 L.Ed. 817] (Jackson, J., concurring).” (Citations & footnotes omitted).

Appellant’s assumption that a “no reason” non-retention is subject to derogatory interpretation by third parties is an assumption not supported by any fact.

“ . . . Mere proof, for example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty.’ ” 408 U.S. at 574 n. 13, 92 S.Ct. at 2707.

The appellant’s reliance upon the fourteenth amendment’s due process provision to afford relief does not assist him upon this record. He has been deprived of neither “liberty” or “property” as those terms are stated in the Constitution and have thus far been interpreted by the Court. Granted that appellant’s “liberty” might be impinged had there been a wrongful dismissal during his one-year employment period, such was not this case. We have already shown that there was nothing said to him, of him or remotely concerning him which was of a depreciatory character in the notice given that he was not to be reemployed. As Roth, teaches us, “It stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” 408 U.S. at 575, 92 S.Ct. at 2708.

Nor does he have an interest in “property” on this record which affords constitutional protection to him. His personal hope or even expectation of reemployment or his sincere belief in his own qualifications gives him no claim to the job for an ensuing year. Appellant has- pointed to nothing in the statutes, or in the State-wide rules, or in the regulations of the particular institution which state that if he meets certain standards his reemployment is guaranteed. Until tenure is obtained he may equal or exceed minimum requirements for evaluation and still the school may prefer to employ someone else for the position he seeks. Roth, supra, at 577, 92 S.Ct. 2701.

Appellant argues, however, that he was not given a formal hearing on non-retention and that one was required under existing rules and therefore he was denied due process. There are two sets of rules which were in effect at State College of San Bernardino during appellant’s stay. One set of rules consists of those formulated by this particular college and covers the “consultative process” whereby tenured faculty members make recommendations to the President upon retention, promotion and tenure. From the record and examination of other cases, these rules may vary in some respects from college to college. The second set of rules is set out in Executive Order 112. The appellant filed a “formal request for grievance hearing pursuant to Exectutive Order Number 112” promulgated by the Office of the Chancellor for all California State Colleges, which provided the grievance procedure by which one aggrieved submits his complaint for grievance committee review. In this request he listed two claims. The first was that the decision not to reappoint him- “indicates that prior committees . . . departed from required procedures in a manner that was substantially prejudicial to the grievant.” The document then expanded the grievance by reference to the committees on retention, promotion and tenure and outlined affirmatively Professor Burdeau’s accomplishments during the academic year and asked that the committee examine them. In his second claim he complained of the college policy of keeping personnel files secret which he asserts is bad policy and contrary to that of the “open file” policy of some of the other state colleges.

At the hearing he insisted on the production of his own personnel file and a statement of reasons for his non-retention. When the chairman of the committee called upon Burdeau to proceed with the presentation of his grievance the response was that he would have to have his personnel file and the several committee recommendations before he could detail the reasons they were wrong. A stand-off ensued and appellant left.

In Toney v. Reagan, 467 F.2d at 959, we discussed the problem of a grievant who was faced with the task of attacking a decision without knowing the reasons upon which the decision was predicated. A resolution of the problem was unnecessary there because the grievant had informally obtained the information prior to the hearing. Here, the grievant had no information from the committees or their files as to their recommendations or findings.

But he was entitled to none. The Faculty Rules on Procedures for Retention, Promotion and Tenure provided that “[a] 11 proceedings, conversations, and minutes relevant to the official business of committees on retention, promotion and tenure are confidential . .”, 2.10 Retention, Promotion and Tenure: Criteria and Procedures I D. The state statutes and the rules of the Trustees likewise make no provision for disclosure. As the moving party to the grievance the burden is upon the grievant to produce the evidence to support his charges. Where the state rules and the faculty rules do not provide a grievant with material from the files of the committees he may not by filing his grievance turn the proceeding into a fishing expedition for information he was not otherwise entitled to obtain. And there is no assurance that it would have been helpful had it been obtained. The grievance procedures presuppose that the grievant will have evidence to support his position. Appellant was aware of the fact that the policies of the faculty and the Trustees made no provision for disclosure of the information in their own files. From a constitutional basis to require such a disclosure at the demand of the non-tenured teacher on the basis of a due process claim is to turn Board of Regents v. Roth, supra, upside down.

The judgment of the District Court is affirmed.

      . “Mr. Howard B. Burdeau 711 Brookside Avenue Redlands, California 92372 “Dear Mr. Burdeau:
      “It is with sincere regret that I must inform you that you will not be reappointed to the faculty for the coming academic year (1971-72).
      “Consequently, your employment at the California State College, San Bernardino will terminate at the end of the 1970-71 academic year.
      “Sincerely,
      /s/ John M. Pfau John M. Pfau President”

      . In an affidavit in opposition to a motion to dismiss, filed in the District Court, appellant states: “In a deposition taken of President Pfau on November 2, 1971, in connection with this case, President Pfau testified that the Division of Social Sciences Committee on Retention, Promotion and Tenure recommended against affiant’s reappointment for the 1971-72 academic year as did the College-wide Committee on Retention, Promotion and Tenure.” The deposition was not made a part of the record on appeal.

      . Because Mr. Burdeau has acted as his own attorney in this court, and because his briefs and argument were directed primarily to the merits, we will assume for the purpose of deciding this case that Mr. Burdeau has satisfied the exhaustion requirements of Toney v. Reagan, 467 F.2d 953, 956 (9th Cir. 1972), even though his conduct before the Executive Order 112 panel may not have been conducive to meaningful ajudication.

      . The procedural record is in considerable disarray. The opinion of the District Court states that at a hearing before the court the plaintiff (appellant) abandoned his contention that a failure to provide a specification of reasons for his non-retention constituted a deprivation of procedural due process. The record of that hearing was not designated as a part of the record on appeal and we do not have it before us. We treat appellant’s cause on appeal on the basis of the issues raised in his brief to which response was made by appellee.

      . Jablon v. Trustees of California State Colleges, 482 F.2d 997 (9th Cir. 1973); Toney v. Reagan, 467 F.2d 953 (9th Cir. 1972).

      . Executive Order No. 112 provides as follows :
      “10.9 At the hearing, the grievant shall present his evidence, following which other evidence shall be received. The grievant shall have the burden of persuasion.”


source: Caselaw Access Project

author: LAY, Circuit Judge.

license: Public Domain

text:
    Gail PROSTROLLO et al., Appellees, v. The UNIVERSITY OF SOUTH DAKOTA et al., Appellants.
    No. 74-1184.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 14, 1974.
    Decided Dec. 6, 1974.
    Rehearing Denied Dec. 18, 1974.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1687.

      Carleton R. Hoy, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S.D., for appellants.
    Michael B. Crew, Crew & Crew, Vermillion, S. D., for appellees.
    Before VOGEL, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   LAY, Circuit Judge.

The University of South Dakota, Dr. Richard Bowen, its President, A. L. Schnell, Director of Resident Services, and the Board of Regents of the State of South Dakota appeal from a decision of the district court declaring certain University housing regulations unconstitutional. The named plaintiffs, Gail Prostrollo and Lynn Severson, are students at the University of South Dakota. They brought this suit on behalf of themselves and other students similarly situated to challenge a regulation which requires all single freshman and sophomore students to live in University residence halls. They contend that enforcement of this rule encroaches upon their right of privacy and denies them equal protection of the laws. The district court found that the primary purpose of the regulation was to ensure housing income sufficient to pay off the revenue bonds which had been issued to finance the construction of the dormitories. It concluded that the regulation was unconstitutional, since it established an arbitrary and unreasonable classification which had no rational relationship to this purpose and therefore denied petitioners equal protection of the laws. Prostrollo v. University of South Dakota, 369 F.Supp. 778 (D.S.D.1974). We find the regulation constitutional and reverse and remand the case with directions to enter judgment for the defendants.

The challenged regulation provides: All single freshman and sophomore students are required to live in university residence halls. Exceptions to this policy must be approved by the Director of Resident Services prior to the beginning of the semester.

School officials offered several justifications for this parietal rule. Dr. Richard L. Bowen, the University president, said that the rule had at least two purposes. First, he stated, it was intended to provide a standard level of occupancy to ensure repayment of the government bonds which provided capital for the dormitory construction. Second, he said, it was meant to ensure that younger students who must of necessity live away from home while attending the University would avail themselves of the learning experience in self-government, group discipline, and community living that dorm life provides, as well as the increased opportunity for enriching relationships with the staff and other students. Aaron Schnell, Director of Resident Services, emphasized the educational benefits of living on campus, such as the availability of films and discussion forums. Dr. Richard Gibb, the Commissioner of Higher Education for the South Dakota Board of Regents, freely admitted the financial reasons for the rule, but throughout his testimony, he also emphasized the various educational advantages of dormitory living. Michael Easton, the Director of Student Services, observed:

[T]he facilities for studying are more accessible to those people who live on campus. It’s easier for them to get to the library, for example; the atmosphere on campus is more conducive to study. It’s encouraged. . . .
There are control factors which eliminate the amount of confusion and noise. The emphasis on campus is academic . . . where off campus it’s frequently not.

The overall evidence demonstrates that these University officials believe that dormitory living provides an educational atmosphere which assists younger students, as underclassmen, in adjusting to college life. The testimony reflects a belief that students who become “established” and well-oriented in their early years are more prone to develop those good study habits which will assist them in their years as upperclassmen. Despite this testimony, the district court in its original opinion, as well as in a supplemental opinion filed under a Rule 60(b) proceeding, empha-sized its factual conclusion that the primary purpose of the parietal rule was to defray the costs of the revenue bonds. It found the reasons relating to educational values expressed by school officials to be “unconvincing and unsupported by the evidence.” It was on the basis of the finding of this primary purpose that the court concluded that the classification had no rational connection to the purpose of the regulation and therefore denied plaintiffs equal protection of the law. Cf. Mollere v. Southeastern Louisiana College, 304 F.Supp. 826 (E.D.La.1969).

We need not decide whether the court’s finding regarding the primary purpose of the rule is clearly erroneous. The district court’s error, we believe, was in deciding the reasonableness of the classification on the basis of a single “primary” purpose in the face of evidence revealing multiple purposes. This is a misapplication of the standards governing the equal protection clause. In discussing equal protection principles, the Supreme Court recently observed:

[O]ur decisions do not authorize courts to pick and choose among legitimate legislative aims to determine which is primary and which subordinate. Rather, legislative solutions must be respected if the “distinctions drawn have some basis in practical experience,” South Carolina v. Katzenbach, 383 U.S. 301, 331, 86 S.Ct. 803, 820, 15 L.Ed.2d 769 (1966), or if some legitimate state interest is advanced, Dandridge v. Williams, 397 U.S. [471], at 486 (90 S.Ct. 1153, at 1162, 25 L.Ed.2d 491). So long as the state purpose upholding a statutory class is legitimate and nonillusory, its lack of primacy is not disqualifying.
. . . The search for legislative purpose is often elusive enough, Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), without a requirement that primacy be ascertained. Legislation is frequently multi-purposed: the removal of even a “subordinate” purpose may shift altogether the consensus of legislative judgment supporting the statute. Permitting nullification of statutory classifications based rationally on a non-primary legislative purpose would allow courts to peruse legislative proceedings for subtle emphases supporting subjective impressions and preferences. The Equal Protection Clause does not countenance such speculative probing into the purposes of a coordinate branch. We have supplied no imaginary basis or purpose for this statutory scheme, but we likewise refuse to discard a clear and legitimate purpose because the court below perceived another to be primary.

McGinnis v. Royster, 410 U.S. 263, 276-277, 93 S.Ct. 1055, 1062, 35 L.Ed.2d 282 (1973).

The district court concluded that the challenged classification (freshmen and sophomores) had no rational connection to the purpose of paying off the bonds. We would agree. However, there is no evidence on the record that the classification in question was ever intended to have any connection with that purpose. In Molerre, supra, relied upon by the district court, where a similar regulation was struck down, the only reason women under the age of 21 and freshman men were required to live in the dormitories was because as a group they approximated the number needed to fill the dormitory vacancies. 304 F.Supp. at 827. To the contrary in the present case the only evidence of why the classification was created was the testimony of University officials that they felt that freshman and sophomore students benefited more directly from the educational values of dormitory living.

When no suspect classification is involved or fundamental right infringed, any “rational basis” may justify classifications which have been made. See Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (“any conceivable purpose”); Kotch v. Board of River Pilot Commissioners, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947). We find there exists a rational connection between one of the permissible purposes for the regulation and the classification made.

Right of Privacy

Although the district court did not pass on the plaintiffs’ other contention, i. e., that the regulation violates their right of privacy, this claim is argued on appeal and we must decide it. Aside from equal protection arguments, any law may, of course, be invalid if it clearly violates a fundamental constitutional right. Plaintiffs urge, however, that it is now recognized that when a legislative classification appears to have been made on a suspect basis or encroaches upon a fundamental right, the state has the burden of demonstrating a “compelling interest” which required it. We agree that when those circumstances exist closer judicial scrutiny is required under an equal protection challenge. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). That is not the case here, however.

First, we think it obvious that the classification involved was not made on a “suspect” basis. See Johnson v. Robi-son, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). The class within the regulation is created on the basis of educational attainment. This classification has never been recognized as an inherently irrational basis for differentiating between persons otherwise equal. Cf. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (alienage); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), and McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (race); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (national origin).

We move then to the consideration of whether the right involved is “explicitly or implicitly protected by the Constitution.” See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 1281, 36 L.Ed.2d 16 (1973).

The basic challenge asserted by plaintiffs is that the parietal rule affects (a) their right of privacy and (b) their freedom of association. Plaintiffs rely on Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), which requires the demonstration of a “compelling state interest” before a fundamental right may be encroached upon. However, before applying the compelling interest rule it is basic that both the nature and importance of the rights affected and the extent or nature of the encroachment must first be weighed to determine if the challenged rule constitutes a serious abridgement of a basic interest. Cf. Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); Cole v. Housing Authority, 435 F.2d 807 (1st Cir. 1970).

Plaintiffs urge that inherent within the right of privacy is the right to choose one’s home and to live with whomever one chooses. As much as we may strive to protect these goals, we cannot agree that the right to choose one’s place of residence is necessarily a fundamental right. Cases too numerous to mention have upheld restrictions on this interest. See, e. g., Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (zoning ordinance). This “right” is akin to the interest in education, which the Supreme Court recently held not to be the kind of interest which will invoke the compelling interest test. See San Antonio School District v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). This is not, it must be noted, a ease in which the right to live in a given geographic area is affected or in which freedom to travel and relocate is abridged as in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), or Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The interest in living precisely where one chooses is not fundamental within our constitutional scheme.

Freedom of association has been recognized as a fundamental right, NAACP v. Alabama, 357 U.S. 449, 78 S. Ct.1163, 2 L.Ed.2d 1488 (1958), but even fundamental rights are not so absolute as to be protected from all incidental effects of otherwise legitimate legislation. For example, in Village of Belle Terre v. Boraas, supra, a case challenging zoning laws, one of the rights supposedly infringed was the right of association and, admittedly, the ordinance prevented more than two unmarried adults from living in a single dwelling. The Court found these incidental effects to be too insignificant to invoke strict scrutiny of the statute. The analogy to the instant ease is apparent. .

Mr. Justice Douglas observed that legislative bodies have historically drawn lines when dealing with economic and social problems. He stated:

But every line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative not a judicial function.

Village of Belle Terre v. Boraas, supra 416 U.S. at 8, 94 S.Ct. at 1540.

Fundamental to our reasoning is the fact that we are dealing with education, an area in which “[sjchool authorities are traditionally charged with broad power to formulate and implement educational policy . . . .” Swann v. Board of Education, 402 U.S. 1, 16, 91 S. Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). We are also cognizant of the wisdom of Mr. Justice Holmes’ statement in Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 24 S.Ct. 638, 48 L.Ed. 971 (1904), where he observed:

When a state legislature has declared that, in its opinion, policy requires a certain measure, its action should not be disturbed by the courts under the 14th Amendment, unless they can see clearly that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.

Id. at 269, 24 S.Ct. at 639.

This parietal rule and its challenged classification are directed toward a permissible objective. The classification is not based on any patently invidious basis. We conclude that the rule is reasonable and not arbitrary and that it “bears a rational relationship to a permissible state objective.” See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). We find this test to be met here. Accord, Pratz v. Louisiana Polytechnic Institute, 316 F.Supp. 872 (W.D.La.1970), appeal dismissed, 401 U.S. 951, 91 S.Ct. 1186, 28 L.Ed.2d 234, aff’d, 401 U.S. 1004, 91 S.Ct. 1252, 28 L.Ed.2d 541 (1971); Poynter v. Drevdahl, 359 F.Supp. 1137 (W.D.Mich.1972).

The judgment of the district court is reversed and the cause is remanded to the district court to enter judgment in favor of the defendants Dr. Richard Bowen and A. L. Schnell. The district court shall dismiss the complaint against the University of South Dakota and the Board of Regents for lack of jurisdiction.

      . The defendants have raised several points of error, but since we find that the regulation is constitutional we need discuss only one. Nonetheless, we note they have challenged the jurisdiction of the district court to entertain the subject matter on the ground that a constitutional challenge to a school regulation should be heard by a three-judge court convened under 28 U.S.C. § 2281. The regulation challenged here, however, does not have statewide application, and a three-judge court was not required. See Board of Regents of University of Texas System v. New Left Educational Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972).
      We also note that jurisdiction is premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Although the defendants have not raised this jurisdictional question, we think it is fundamental that the University of South Dakota and the corporate body constituting the Board of Regents, both political subdivisions of the state, may not be sued under the Civil Rights Act since neither entity constitutes a “person” within the meaning of § 1983. Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) ; Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) ; Jorden v. Metropolitan Utilities District, 498 F.2d 514 (8th Cir. 1974) ; cf. Board of Trustees v. Davis, 396 F.2d 730 (8th Cir.), cert. denied, 393 U.S. 962, 89 S.Ct. 401, 21 L.Ed.2d 375 (1968). The district court erred in assuming it had jurisdiction of plaintiffs’ complaint against these defendants under § 1343.

      . Both parties and the court below consistently use the term “parietal” rule in describing the housing regulation. The New Webster’s Dictionary of the English Language defines that term as an adjective meaning “of or relating to life within college walls or its order or regulation.” Its derivation is discussed in Pratz v. Louisiana Polytechnic Institute, 316 F.Supp. 872, 876 n. 2 (W.D.La. 1970), appeal dismissed, 401 U.S. 951, 91 S.Ct. 1186, 28 L.Ed.2d 234, aff’d, 401 U.S. 1004, 91 S.Ct. 1252, 28 L.Ed.2d 541 (1971).

      . S.D.C.L. § 13-51A-38 adopted by the South Dakota Legislature in 1971 reads :

        Parietal rules. — In connection with the issuance of any bonds under this chapter, and in order to secure the payment of any such bonds and the interest thereon, the board shall have the power for each such institution to make and enforce and agree to make and enforce parietal rules that shall ensure the use of any project to the maximum extent to which such project is capable of serving students, staff members and others using or being served by, or having the right to use or the right to be served by, or to operate, any project.

      . The defendants have adopted answers to interrogatories from another pending ease in the federal district court in the Southern District of Iowa. Iowa university officials were asked to list the advantages and disadvantages of dormitory living. They listed them as follows:
      ADVANTAGES
      1) meals prepared
      2) maid service
      3) meet more people
      4) group activities, movies
      5) ideal location
      6) laundry service
      7) activities
      8) communication
      9) more a part of campus life
      10) experiencing different life styles
      11) supervision for young and immature
      12) equipment available
      13) develop feeling of belonging
      14) educational environment
      15) counselors available
      16) advisors spot problems early
      17) feel a part of group
      18) Reserve Library
      19) forced to meet people and get along
      20) more recreational opportunities
      21) vending machines
      22) stores in dorms
      23) refrigerators
      24) freedom from household duties
      25) learn to be more tolerant of others
      26) easier to keep up with current activities
      27) help one another with homework
      28) easier to meet people
      DISADVANTAGES
      1) too restrictive
      2) isolation from the opposite sex
      3) student not responsible for self
      4) can’t study
      5) too noisy
      6) too expensive
      7) no liquor
      8) rooms too crowded
      9) parking
      10) standing in line
      11) poor quality of food
      12) lack of privacy
      13) no choice of roommates
      14) having roommates
      15) not sufficient study lounges
      16) prolongs adolescence
      17) too social
      18) maybe escape

      . While the appeal was pending and upon motion of the defendant, this court certified to the district court a motion to vacate the judgment under Rule 60(b), Fed.R.Civ.P., on the basis of “newly discovered evidence.” After the district court refused to vacate its judgment, the record was certified back to this court. No new notice of appeal is required under this procedure. Serio v. Badger Mutual Ins. Co., 266 F.2d 418 (5th Cir.), cert. denied, 361 U.S. 852, 80 S.Ct. 81, 4 L.Ed.2d 73 (1959).

      . We can only assume that the rule requiring students to live in the dormitory was promulgated in compliance with the legislative direction. See note 4, supra. School officials cannot in this day and age be faulted for requiring students to live in housing constructed by the University. A state policy requiring parietal rules to defray costs of construction is, in itself, not illegal or violative of the Constitution. See Pratz v. Louisiana Polytechnic Institute, 316 F.Supp. 872 (W.D.La.1970), appeal dismissed, 401 U.S. 951, 91 S.Ct. 1186, 28 L.Ed.2d 234, aff’d, 401 U.S. 1004, 91 S.Ct. 1252, 28 L.Ed.2d 541 (1971) ; Pyeatte v. Board of Regents of University of Oklahoma, 102 F.Supp. 407 (W.D.Okla.1951), aff’d, 342 U.S. 936, 72 S.Ct. 567, 96 L.Ed. 696 (1952).

      . Although not pleaded or discussed in the district court’s opinion, the plaintiffs challenge on appeal as well the allegedly unequal. enforcement of tire regulation. They rely on the University’s Handbook on Student Life and Services which reads :
      HOUSING Residence Halls
      The University provides eight residence halls for 2,300 students. The University policy requires all single freshman and sophomore men and women who are under 21 years of age to live in University housing. Vermillion residents and other students commuting from home may be excused from living in a residence hall providing a written request is submitted and approved by the Director of Resident Services prior to the start of the school year.
      There was testimony that freshman and sophomore students living in sorority or fraternity houses are also exempted from this regulation.
      These exemptions do not invalidate the regulation. Cf. Pratz v. Louisiana Polytechnic Institute, supra, 316 F.Supp. at 882-883. The policy of allowing a very small number of freshmen and sophomores to live in sorority and fraternity houses is not a serious deviation from the rule. These houses constitute University-approved housing and provide many of the same benefits as do dormitories. The policy of granting exemptions to beginning students who are over 21 is reasonably related to the belief that it is primarily the younger students who will benefit from dorm life. This fact alone distinguishes the equal protection arguments discussed in Cooper v. Nix, 496 F.2d 1285 (5th Cir. 1974). It is reasonable, at least, to assume that beginning students who are 21 and over will not have as much in common with their younger classmates.
      Neither of these exemptions is arbitrary or capricious. "When lines are drawn, there will always be some under and over inclusion. This fact alone does not create an equal protection problem. See Developments in the Law — Equal Protection, 82 Harv.L. Rev. 1067, 1084-86 (1969).

      . Sex-based classifications and those founded directly on wealth seem to be consistently subjected to a more rigid review (San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) ; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed. 2d 225 (1971)), though the Court has expressly declined to label them “suspect” bases.

      . See Mr. Justice Powell’s observation in San Antonio School District v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), where the property tax base of the school system was attacked as a denial of equal protection. The Court reasoned :
      Education . . . presents a myriad of “intractable economic, social, and even philosophical problems.” . . . The very complexity of the problems of financing and managing a statewide public school system suggests that “there will be more than one constitutionally permissible method of solving them,” and that, within the limits of rationality, “the legislature’s efforts to tackle the problems” should be entitled to respect.

        Id. at 42, 93 S.Ct. at 1301.

      . See note 1, supra.


author: McENTEE, Circuit Judge.

text:
    Joseph RODRIGUES, Plaintiff-Appellant, v. RIPLEY INDUSTRIES, INC., Defendant-Appellee. Joseph RODRIGUES, Plaintiff-Appellee, v. RIPLEY INDUSTRIES, INC., Defendant-Appellant.
    Nos. 74-1065, 74-1072.
    United States Court of Appeals, First Circuit.
    Argued Oct. 9, 1974.
    Decided Nov. 25, 1974.

      Vincent A. Wenners, Jr., Manchester, N. H., with whom Craig, Wenners, Craig & McDowell, Manchester, N. H., was on brief, for Joseph Rodrigues.
    W. Wright Danenbarger, Manchester, N. H., with whom Susan B. Monson and Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N. H., were on brief, for Ripley Industries, Inc.
    Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

This is a consolidated appeal by plaintiff Rodrigues and defendant Ripley from a judgment in the amount of $15,-000 pursuant to a jury verdict. Rodri-gues was injured when a plastic injection heel molding machine designed and manufactured by Ripley and owned by its subsidiary, Security Heel Company, Rodrigues’ employer, closed on his hand causing permanent and total disability. Rodrigues seeks a new trial, alleging errors by the trial court and challenging the adequacy of the jury’s verdict, while Ripley attacks the sufficiency of the evidence to support a finding of liability against it. We affirm in all respects.

We can dispose of the latter claim in short order. Plaintiff’s expert testified to three separate design defects in the molding machine, and expressed the opinion that the instructional materials provided with the machine were inadequate. Defendant sought to minimize the importance of these alleged' defects. It also sought to prove that the accident could riot have occurred had Security Heel not removed a safety gate from the machine, but there was evidence from which the jury could have concluded that this removal was a foreseeable possibility which did not supervene Ripley’s negligence. We are not prepared to hold that the evidence and every legitimate inference that can be drawn therefrom, Bayamon Thom McAn v. Miranda, 409 F.2d 968, 973 (1st Cir. 1969), viewed in the light most favorable to plaintiff, was not sufficiently substantial to justify the court in allowing the case to go to the jury. Magnat Corp. v. B & B Electroplating Co., 358 F.2d 794, 797 (1st Cir. 1966). The court properly denied Ripley’s motion for a directed verdict.

Turning to plaintiff’s appeal, we dealt comprehensively with a claim that a jury verdict was excessive in Boston and Maine R. R. v. Talbert, 360 F.2d 286 (1st Cir. 1966). No reason appears why the standards we developed in that case should not apply here. See Caskey v. Village of Wayland, 375 F.2d 1004, 1008 (2d Cir. 1967). Making a detailed appraisal of the evidence bearing on damages in accordance with the Supreme Court’s practice in Grunenthal v. Long Island R. R., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968), we find that Rodrigues claimed medical expenses of $5,047.95, while Ripley suggested that only $4,276.95 of this amount was attributable to the accident in question. Rodrigues had been earning over $10,000 yearly and had not worked since the accident, a period of nearly three years. He planned to work until age 65, eleven years hence. However, his doctor testified that within a year of the accident he had reached the endpoint of his recovery, converted his dominant hand to his left, and was capable of gainful employment. In fact, he was reoffered his old job at the molding plant soon after the accident and this offer was repeated on the witness stand by the assistant to the plant manager, who spoke very highly of Rodrigues. Thus the jury could have concluded that Rodri-gues had failed to mitigate and that his allowable damages for lost earnings and out-of-pocket expenses were under $15,000.

Rodrigues notes that a new trial will be granted where a verdict closely approximates the amount of special damages claimed by a plaintiff who has suffered serious injury, since the jury has evidently failed to heed the court’s instructions on pain and suffering. See e. g., Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir. 1972) ; Schieck v. Duluth Heating and Sheet Metal Supply Co., 53 F.R.D. 401 (D.Minn.1971). However, we must bear in mind that New Hampshire adheres to a rule of comparative negligence, N.H. Rev.Stat.Ann. 507:7-a (Supp. 1973) , under which the jury may diminish its verdict up to 50% if it concludes that the plaintiff’s negligence was a partial cause of his injury. See Glover v. Daniels, 310 F.Supp. 750, 752 (N.D.Miss.1970). There was ample evidence from which the jury could have determined that Rodrigues was partially at fault in his mishap. We cannot know whether the jury in fact made this determination absent a special verdict or a general verdict with interrogatories under Fed.R.Civ.P. 49, but we think it is fair to presume that the verdict is predicated upon such a finding. Cf. Railway Express Agency v. Little, 50 F.2d 59, 60 (3d Cir. 1931). Thus this verdict may reflect an award of over $15,000 for general damages. Rodrigues experienced severe pain and spent more than a month in the hospital, where he underwent a series of six operations. Needles were inserted into his hand in an effort, ultimately unsuccessful, to save the stumps of his fingers from gangrene. He had trouble sleeping, and is unable to perform certain everyday operations like tying his shoelaces. His sister characterized his hand as “repulsive.” He has given up former hobbies. Nevertheless, although such an amount for general damages may be low in light of plaintiff’s suffering and disfigurement, we do not find it shockingly so. See, e. g., June T., Inc. v. King, 290 F.2d 404 (5th Cir. 1961); Johnson v. United States, 271 F.Supp. 205 (W.D. Ark.1967); Missouri Pacific R. R. v. Handley, 341 S.W.2d 203 (Tex.Civ.App. 1960). It was not a manifest abuse of discretion not to order a new trial here.

Rodrigues next advances a series of allegedly erroneous rulings by the trial court as grounds for a new trial. We note at the outset that a motion for a new trial is addressed to the sound discretion of the trial court and its decision will be reversed only where abuse of discretion is shown. Dumas v. MacLean, 404 F.2d 1062, 1065 (1st Cir. 1968). Ripley contends that plaintiff has waived these objections by failing to include them in his notice of appeal, but we need not pass on this contention since we find plaintiff’s claims without merit.

Rodrigues first alleges that the court below erred in failing to submit his claim of strict liability in tort to the jury. Even if this was error we doubt that it was prejudicial. The jury concluded on the evidence that Ripley had designed the molding machine negligently. “Since proper design is a matter of reasonable fitness, the strict liability adds little or nothing to negligence on the part of the manufacturer.” W. Prosser, Torts § 99 n. 72 (1971). As Rodrigues himself concedes, the two claims merge. The New Hampshire comparative negligence statute applies to claims for strict liability in tort, Cyr v. B. Offen & Co., 501 F.2d 1145 (1st Cir. 1974). Rodrigues could not have benefitted from the presentation of an alternative theory. Indeed, insofar as the comparative apportionment of blame is concerned, if the jury made any distinction at all between the two theories it could well have concluded that Ripley was less blameworthy in falling short of the more demanding strict liability measure of conduct than in designing the machine carelessly in contravention of the negligence standard. Hence we doubt that the exclusion of the strict liability theory worked to Rodrigues’ disadvantage.

Rodrigues next attacks the court’s exclusion of proffered testimony that the wiring diagram showed the molding machine was designed with a “momentary contact” emergency stop button. Such a switch must be held down continuously to keep the machine from operating and is consequently less safe than a “maintain contact” switch. The evidence was excluded on the ground that Rodrigues had failed to include this claim in his pretrial enumeration of alleged defects. The pretrial statement “controls the subsequent course of the action,” Fed.R.Civ.P. 16, and the trial court is endowed with discretion to exclude non-conforming evidence. See, e. g., Wiggins v. City of Philadelphia, 331 F.2d 521 (3d Cir. 1964). Rodrigues argues that his claim in his pretrial statement that “the ‘emergency stop’ button was not designed so that when it was depressed it was visibly in an ‘off’ position” put Ripley on notice of this allegation. Certainly this sentence is less than pellucid as a statement of the “momentary contact” contention. Furthermore, though plaintiff’s expert gave ambiguous deposition testimony which may conceivably have had reference to this claim (although it was clearly not so understood by Ripley’s counsel at the time), he twice assented to the completeness of lists of alleged defects that did not include the momentary contact claim. Nor did Rodrigues’ counsel mention the switch in his opening statement. Pretrial statements are to be liberally construed to cover any of the legal or factual theories that might be embraced by their language. C. Wright & A. Miller, Federal Practice & Procedure § 1527 at 609 & n. 47 (1971). Yet we cannot hold that the district court abused its discretion in ruling that plaintiff’s murky pretrial statement did not in the circumstances fairly apprise Ripley of the momentary contact claim. Cf. Johnson v. Geffen, 111 U.S.App.D.C. 1, 294 F.2d 197 (1960).

Rodrigues next contends that the trial judge abused his discretion in refusing to order a new trial despite the possibility that the jury overheard his statement addressed to counsel at the bench that he might set aside the verdict in the event plaintiff did get one. There is no evidence beyond Rodrigues’ naked assertion that the jury actually heard the remark, and his counsel failed to remind the court to poll the jury on this matter after the verdict as the judge had seemingly agreed to do. Further, the trial judge clearly instructed the jury not to try to infer his opinion of the case from any of his remarks during the trial. We think this contention is without merit.

At the view of the molding machine conducted for the jury before trial began, Ripley’s counsel inserted into the mold area a bar similar to the one issued to Rodrigues for use in freeing heels lodged in the mold to indicate comparative dimensions. Ripley argued at trial that the dimensions were such that Rodrigues could not have been injured as he was had he used the safety bar to dislodge the heel caught in the mold. Rodrigues claims that this was an improper experiment at a view and urges that the trial court abused its discretion in refusing to caution the jury that the demonstration was not evidence and in denying his motion for a new trial on this ground. Although counsel may not conduct tests or experiments at a view, Chouinard v. Shaw, 99 N.H. 26, 104 A.2d 522 (1954), it is proper to direct the jury’s attention to particular relevant measurements, Meyer v. Short, 104 N.H. 328, 186 A.2d 146 (1962); Flint v. Union Water Power Co., 73 N.H. 483, 62 A. 788 (1906). Even if counsel’s demonstration here were construed as a test, we see no prejudicial effect. There was no dispute as to the length of the bar, and the bar that counsel used at the view was of the same length as the bar Rodrigues claims he used at the time of the accident. Cf. Chouinard v. Shaw, supra. Rodrigues testified for the first time at trial that he “choked up” somewhat on the bar, while counsel presumably did not do so at the view because Rodrigues had testified in his depositions that he had held the bar at its end. But since the deposition testimony was admissible and in fact admitted into evidence at trial anyway, it is doubtful that Rodrigues’ case suffered any appreciable additional prejudice from counsel’s conduct at the view.

Affirmed.

      . These were that it lacked a safety bar which the operator could place between the mold faces to hold the mold apart while working between the jaws; that it lacked a warning light on the control panel indicating that there was power to the mold clamp circuit; and that it lacked a gate over the entire mold area with an electrical interlock switch breaking power to the mold clamp when the gate was opened. Ripley did provide the machine with a smaller safety gate which Security Heel had removed.

      . Ripley’s engineer was aware that gates had been removed at Ripley’s home plant in order to accommodate water hoses designed to rectify molding problems, and he had had an opportunity to notice when visiting Security Heel’s plant that the gates were not in use there.

      . “It is well settled that the question of ex-cessiveness of a verdict is primarily for the trial court and its determination thereof will not be reversed on appeal except for manifest abuse of discretion. . . . The reason for this rule is that the trial court has had the benefit of hearing the testimony, of observing the demeanor of the witnesses and also knows the community and its standards. On appeal, therefore, we are reluctant to overturn jury verdicts on the ground of excessiveness. . To constitute such an abuse of discretion the award must be shocking.” 360 F. 2d at 291. Cf. Jolicoeur v. Conrad, 106 N.H. 496, 213 A.2d 912 (1965).

      . The jury could have inferred from the evidence that Rodrigues had attempted to dislodge a heel stuck in the mold with his bare hand instead of a brass rod, that he failed to activate the emergency stop button, or that he was carelessly perched atop the rim of a water bin in front of the machine instead of remaining on the floor.

      . Our necessity to speculate under these circumstances underscores the desirability of the court putting to the jury the special question of the degree, if any, of a plaintiff’s fault.

      . Rodrigues strenuously argues that the rule that contributory negligence is a defense to an action based on strict liability, enunciated in Buttriek v. Arthur Lessard & Sons, Inc., 110 N.H. 36, 260 A.2d 111 (1969) and Stephan v. Sears, Roebuck & Co., 110 N.H. 248, 266 A.2d 855 (1970), depended on the sparsity of authority at the time. He contends that McLaughlin v. Sears, Roebuck & Co., 111 N.H. 265, 281 A.2d 587 (1971) heralds a “drift away” from that rule. We have rejected this position in two recent cases, Cyr v. Offen, supra, 501 F.2d at 1150, n. 9, and Stevens v. Kanematsu-Goshu Co., 494 F.2d 367 (1st Cir. 1974).


author: McWILLIAMS, Circuit Judge.

text:
    SIERRA CLUB, a non-profit California Corporation, et al., Plaintiffs-Appellants, v. Gilbert STAMM, Individually and as Commissioner, U. S. Bureau of Reclamation, et al., Defendants-Appellees, and State of Utah: Central Utah Water Conservancy District, et al., Defendants-Intervenors-Appellees.
    No. 74-1425.
    United States Court of Appeals, Tenth Circuit.
    Nov. 29, 1974.
    Rehearing Denied Dec. 23, 1974.

      Dennis F. Olsen, Salt Lake City (H. Anthony Ruekel, Denver, Colo., Curtis K. Oberhansly, and Kinghorn, Oberhansly & O’Connell, Salt Lake City, Utah, on the brief), for plaintiffs-appellants.
    Dirk D. Snel, Atty., Dept, of Justice (Wallace H. Johnson, Asst. Atty. Gen., C. Nelson Day, U. S. Atty., Raymond N. Zagone and Andrew F. Walch, Attys., Dept, of Justice; and Ronald L. Staten, Atty., Dept, of the Interior, of counsel, on the brief), for defendants-appellees.
    Edward W. Clyde, Salt Lake City, Utah (Dallin W. Jensen, Asst. Atty. Gen., and Joseph Novak, Provo, Utah and Hugh W. Colton, Vernal, Utah, on the brief), for defendants in intervention-appellees.
    Before HILL, McWILLIAMS and DOYLE, Circuit Judges.
   McWILLIAMS, Circuit Judge.

This proceeding was instituted in the United States District Court for the District of Utah by four nonprofit environmental corporations against the Secretary of the Interior, Rogers C. B. Morton, and certain officers of the Bureau of Reclamation. The State of Utah and its state water districts later intervened as intervening defendants. The plaintiffs sought declaratory judgment and injunctive relief based on the alleged failure of the defendants to file a Final Environmental Statement which complied with the provisions of the National Environmental Policy Act. 42 U.S.C. § 4321 et seq.

After a six-day evidentiary hearing the trial court found and concluded that the Final Environmental Statement prepared and filed by the defendants did comport with the statute and accordingly entered judgment dismissing the complaint with prejudice. Plaintiffs now appeal. Our study of the record leads us to conclude that the trial court did not err in its determination that the Final Environmental Statement with which we are here concerned met the requirements of the statute, and we therefore affirm. Some background facts are necessary to an understanding of the matter.

The Central Utah Project is a plan to collect, develop and divert water in the Bonneville and Uinta Basins of central Utah for municipal, industrial, agricultural and recreational purposes. The project is an “on-going” one in the sense that certain of its components were completed and in use, even before the advent of the National Environmental Policy Act; whereas, the entire project as presently contemplated will in all probability not be finally completed till sometime in the next century.

The Central Utah Project is composed of six units, one of which is the Bonneville Unit, and it is the Bonneville Unit with which we are here concerned. The Bonneville Unit involves the collection of water in the Uinta Basin by a series of dams, reservoirs, aqueducts, and the like, with the water thus collected being transferred across the Wasatch Mountains for use in the Bonneville Basin. This particular unit is about 16% completed at the present time.

The Bonneville Unit, where construction activity is now focused, is itself broken down into six component systems, one of which is the Strawberry Aqueduct and Collection System. This latter system in turn embraces the so-called Currant Creek Dam and Reservoir. The Government has most recently been involved in the letting of contracts preparatory to building the Currant Creek Dam, and it is this fact which has precipitated the present controversy. The immediate relief sought by the plaintiffs was an injunction to prohibit any further action in connection with the Currant Creek Dam. As indicated, plaintiffs’ claim is based on their belief that the Final Environmental Statement filed by the defendants is inadequate. Let us look then at the Final Environmental Statement here under attack.

The Statement was prepared by the Bureau of Reclamation and the Department of the Interior and filed with the Council on Environmental Quality . on August 2, 1973. The Secretary of the Interior subsequently announced on November 8, 1973, that construction would proceed on the Currant Creek Dam as “the next step in the construction of the Strawberry Aqueduct.” Although there was perhaps some misunderstanding, at least initially, as to the intended scope of the Statement, it would appear that now it is agreed that the Statement is intended to be a final one only as to the Strawberry Aqueduct and Collection System, even though the Statement makes reference to other components of the Bonneville Unit, as well as to other units within the Central Utah Project. The Statement clearly indicates that final impact statements will be filed on the other systems of the Bonneville Unit and the Central Utah Project before work commences on those phases. The Statement is a bulky one, consisting of over 800 pages of single-spaced printing. The Statement itself is subdivided into the following headings: Description of the proposal; description of the environment; environmental impacts of proposed action; mitigating measures and air and water quality aspects; unavoidable adverse effects; short and long term environmental uses; irreversible and irretrievable commitments of resources ; alternatives to proposed action; and consultation and coordination with others. The Statement then contains rather detailed “responses” by the Department of the Interior to “objections” earlier made to the draft impact statement.

The plaintiffs’ attack on the Statement is fourfold: (1) The Statement is too narrow in its scope and should include the cumulative and collective environmental impact of the entire Central Utah Project; (2) the Statement is incomplete in that it is a final statement as to the Strawberry Collection System only, and that it should, but does not, encompass all increments of the Bonneville Unit; (3) the Statement fails to adequately discuss alternatives for obtaining water within the Bonneville Basin for municipal and industrial purposes; and (4) the Statement fails to include and discuss a cost-benefit ratio. Before discussing each of the matters thus raised, let us first ascertain what the statute declares should be included in a Final Environmental Statement.

Section 4332, 42 U.S.C. provides as follows:

“* * * [A] 11 agencies of the Federal Government shall * * * include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on
“(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” (Emphasis added.)

The plaintiffs first attack the Statement on the ground that it is too narrow in scope, and should be a final statement at least for the entire Bonneville Unit, if not indeed for the entire Central Utah Project. As indicated above, the Statement here involved is intended to be a final statement as to the Strawberry Aqueduct and Collection System only, and, according to the plaintiffs, the Strawberry system is not in itself an independent “major Federal action,” as mentioned in 42 U.S.C. § 4332, but only an increment of the Bonneville Unit and the Central Utah Project.

We deem the question as to whether the Strawberry system is in itself an independent “major Federal action,” and whether the Statement should have been a “final” impact statement for the Bonneville Unit, or perhaps even the entire Central Utah Project, to be, in a sense, a mixed question of fact and law. By that we mean that the issue as to whether the Strawberry system is a unit unto itself, and can stand on its own two feet, or, on the contrary, whether it is so intertwined with the rest of the Bonneville Unit and the Central Utah Project that it is but an increment of the larger plan, is essentially one of fact. Then whether the “facts” as thus found by the trial court permit the Strawberry system to be classified as an independent “major Federal action” is essentially a question of law. Let us now examine the trial court’s findings on the issue as to whether the Strawberry system is an independent unit, or not.

Finding No. 16 reads as follows:

“The Strawberry Aqueduct and Collection System has an independent utility of its own as a collection and conveyance system of waters from the designated Uinta Mountain streams for storage in the enlarged Strawberry Reservoir for release and use in the Bonneville Basin. Such system can operate and function separately from the remaining unconstructed systems of the Bonneville Unit or other units of the Central Utah Project. The termini of the Strawberry Aqueduct and Collection System, comprising the Soldier Creek Dam on the westerly end, and the Upper Stillwater Reservoir on the easterly end, delineate a reasonable and logical segment of the Bonneville Unit for discussion and analysis of the environmental impacts resulting therefrom, which remain unchanged regardless of the systems to be constructed for delivery and use of project waters within the Bonneville Basin. The major federal action of Defendant Secretary Morton was limited to the approval of immediate construction of the Currant Creek Dam and to the continuation of the construction of the Strawberry Aqueduct and Collection System on a logical construction schedule. The detailed discussion and analysis of the Strawberry Aqueduct and Collection System contained in the FES and the explanation and discussion of the entire Bonneville Unit therein fully complies with the requirements of NEPA, and the applicable guidelines of the Council on Environmental Quality as to the scope, nature and extent of the project to be covered thereby.”

In • our view, the trial court’s finding as set forth immediately above finds more than adequate support in the record, and on appeal should be, and is, accepted by us. The next question then is whether the Strawberry system as thus “found” by the trial court can be deemed an independent “major Federal action” as that term is used in 42 U.S. C. § 4332. We agree with the trial court that the Strawberry system does constitute such Federal action. In support of our conclusion see such cases as Sierra Club v. Calloway, 499 F.2d 982 (5th Cir. 1974), and Environmental Defense Fund, Inc. v. Armstrong, 352 F. Supp. 50 (N.D.Cal.1972), supplemental opinion, 356 F.Supp. 131 (N.D.Cal. 1973), aff’d on appeal, 487 F.2d 814 (9th Cir. 1973). Brief reference to these cases will prove helpful.

The Calloway case concerns the Trinity River Project in Texas. This is a tremendous undertaking which envisions a straightening of the Trinity River and the construction of a channel of a width of 200 feet and a depth of 12 feet from the Houston Ship Channel in Galveston Bay to Forth Worth, a distance of 363 miles. The latest projected cost estimate is $1,356,000,000. The Wallisville Project involves the construction of a dam at the mouth of the Trinity River. The final impact statement related to the Wallisville Project, and in the trial court the environmentalists obtained in-junctive relief on the ground that the impact statement did not comply with the statute because the Wallisville Project was not in and of itself an independent “major Federal action,” but merely an increment of the Trinity River Project, and that a final impact statement for the whole project was necessary before work could be commenced on the Wallisville Project. In reversing on appeal, the Fifth ■ Circuit declared as follows:

“We conclude that the Wallisville and Trinity River Projects are not interdependent. The nexus between the projects is not such as to require an EIS evaluation of the Trinity Project as a condition precedent to an EIS evaluation of Wallisville. The Wallis-ville EIS should speak for itself. Wallisville is a separate viable entity. It should be examined on its own merits. Although it has been made compatible in certain of its features with Trinity it is not a mere component, increment, or first segment of Trinity. The court erred in so holding. [499 F.2d at 990]
* * * * -x-
“The court’s decision linking Wallis-ville with Trinity and requiring the Wallisville EIS to evaluate not only the environmental impact of Wallis-ville, but also to assess some or all of the effects of the Trinity Project, and the latter’s effect upon Wallisville, cannot be sustained in view of our holding that the Wallisville EIS must be separately considered and determined.
“It was error to make Wallisville an evidentiary hostage of Trinity. The holding if permitted to stand could well spell the doom of the Wallisville Project in view of the continuing uncertainties attending the Trinity Project.” [499 F.2d at 993]

In Armstrong, the trial court held that the final impact statement on the New Melones Project in California was sufficient to meet the “major Federal action” requirement of 42 U.S.C. § 4332, and that the New Melones Project did not have to await completion of the comprehensive study of the bigger and more inclusive Central Valley Project. In thus holding that court, citing Jica-rilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973), declared as follows:

“ * * * So long as each major federal action is undertaken individually and not as an indivisible, integral part of an integrated state-wide system, then the requirements of NEPA are determined on an individual major federal action basis. Plaintiffs’ suggestion that there is need for a comprehensive study of the Central Valley Project should be made to the Congress, and not to the Court.”

In sum, then, we agree with the trial court that the Strawberry system in and of itself constitutes a “major Federal action” and that it is not a mere increment of either the Bonneville Unit or the Central Utah Project requiring a final impact statement for something more than the Strawberry system before work may be commenced on the Currant Creek Dam. Before leaving this phase of the case, brief mention should be made of the Indian Deferral Agreement signed by the United States and the Ute Indians in 1965.

The Ute and Ouray Indian reservations lie downstream from the Bonneville Unit. For the Strawberry system to function it was necessary to obtain a deferral of certain water rights held by the Indians. By contract, the Indians agreed to defer their present right to an amount of irrigation water until the development of the Ute Indian Unit, which is one of the six units of the Central Utah Project. The Ute Indian Unit, as a matter of fact, is the ultimate segment of the Central Utah Project, and if that phase is not completed by the year 2005, then, according to the agreement, the Indians are to have immediate use of all deferred water or receive an equitable adjustment.

The plaintiffs argue that the Indian Deferral Agreement legally obligates the construction of the Ute Indian Unit and that such is proof positive that the Strawberry system is not a major Federal action in itself, but is only a dependent increment in the overall project. In this regard the trial court found, however, that the Indian Deferral Agreement did not “mandate or require the construction of other features of the Bonneville Unit nor other units of the Central Utah Project, since the terms thereof [i.e., Indian Deferral Agreement] can be fulfilled without such construction.” As indicated, the agreement itself does provide that if replacement water is not ultimately furnished, then the Indians are to have immediate use of their deferred rights or otherwise receive “equitable adjustment.” We agree with the trial court that the fact of the Indian Deferral Agreement does not in itself render the Strawberry system a mere increment of the total plan of the Central Utah Project.

Plaintiffs’ remaining grounds for reversal relate to the internal sufficiency of the Statement, the plaintiffs contending that the Statement does not contain a sufficient discussion of alternatives and does not contain a discussion of environmental cost-benefit ratio. The trial court in reviewing the matter concluded that the Statement was not deficient in these two particulars. We agree.

In National Helium Corporation v. Morton, 486 F.2d 995 (10th Cir. 1973), we held that the “rule of reason” should be applied in a judicial review testing the sufficiency of a final environmental statement and declared that a judicial review of a final environmental statement is limited to the following:

“(1) Whether FES discusses all of the five procedural requirements of NEPA.
“(2) Whether the environmental impact statement constitutes an objective good faith compliance with the demands of NEPA.
“(3) Whether the statement contains a reasonable discussion of the subject matter involved in the five required areas.”

The concurring opinion in Morton agreed that “judicial review of an impact statement is limited to a determination of whether the statement is a “good faith, objective, and reasonable” presentation of the subject areas mandated by NEPA,” and that opinion went on to add that in thus testing the sufficiency of a final environmental statement, the courts should not engage in “second guessing” the experts who have prepared the statement. Our study of the very elaborate final environmental statement filed for the Strawberry system leads us to conclude that there is a “good faith, objective, and reasonable” discussion of alternatives. Over 100 pages in the Statement are devoted to a consideration of alternatives to the entire Bonneville Unit plan, including possible alternatives to Currant Creek Dam, that being the defect in the Statement specifically complained of by the plaintiffs. We believe such discussion to comport with the statute. In Life of the Land v. Brinegar, 485 F.2d 460, at 472 (9th Cir. 1973), the following pertinent comment appears:

“NEPA’s ‘alternatives’ discussion is subject to a construction of reasonableness. N.R.D.C., Inc. v. Morton, supra, 148 U.S.App.D.C. 5, 458 F.2d at 834. Certainly, the statute should not be employed as a crutch for chronic fault-finding. Accordingly, there is no need for an EIS to consider an alternative whose effect cannot be reasonably ascertained, and whose implementation is deemed remote and speculative. Id. at 834. Rather, the EIS need only set forth those alternatives ‘sufficient to permit a reasoned choice.’ Id. at 836. This has been done. See also Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 380, supra, 463 F.2d at 787; Pennsylvania Environmental Council v. Bartlett, 315 F.Supp. 238, 250 (M.D.Pa.1970).”

As concerns cost-benefit ratio, the National Environmental Protection Act only requires that “presently unquantified environmental amenities and values * * * be given appropriate consideration in decisionmaking along with economic and technical considerations.” 42 U.S.C. § 4332(B). See also Environmental Defense Fund, Inc. v. Armstrong, 352 F.Supp. 50 (N.D.Cal. 1973). This in our view does not require the fixing of a dollar figure to either environmental losses or benefits. Environmental Defense Fund v. Tennessee Valley Authority, 371 F.Supp. 1004 (E.D.Tenn.1973), aff’d, 492 F.2d 466 (6th Cir. 1974). Our study of the impact statement leads us to conclude that the cost-benefit matter is adequately covered therein. See Environmental Defense Fund, Inc. v. Corps Engineers of the United States Army, 492 F.2d 1123 (5th Cir. 1974).

Judgment affirmed.

      . Scientists’ Inst, for Pub. Info., Inc. v. Atomic Energy Com’n, 156 U.S.App.D.C. 395, 481 F.2d 1079, at 1095 (1973), footnote 68, reads as follows:
      “The decision whether the time is ripe for a NEPA statement on an overall research and development program is a mixed question of law and of fact. It concerns a question of law as to interpretation of the statutory phrase ‘major Federal action significantly affecting the quality of the human environment’ as it pertains to technology research and development programs. As indicated in text, we interpret the statute to provide for a balancing approach which takes into account the Act’s policies in favor of information which is both meaningful and timely. In addition, the decision involves a question of fact as to application of that balancing test to the realities of a specific program at a specific time.
      “With respect to judicial review of such mixed questions of law and fact, the Supreme Court has authorized a practical standard of review, the ‘rational basis’ test, under which the court will reverse the agency’s decision if it has no warrant in the record and no reasonable basis in law. NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) ; Hanly v. Kleindienst, 2 Cir., 471 F.2d 823, 829 (1972).”