author: ELY, Circuit Judge: SOLOMON, Senior District Judge

text:
    Dorothy CARLSON et al., Appellants, v. The COCA-COLA COMPANY, a Delaware corporation, and Grlendenning Companies, Inc., a Connecticut corporation, Appellees.
    No. 26842.
    United States Court of Appeals, Ninth Circuit.
    July 31, 1973.
    As Amended Aug. 20, 1973.
    John E. Hill (argued), Melvin M. Bel-li, Robert L. Lieff of Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, Cal., for appellants.
    John N. Hauser (argued), Charles F. Preuss (argued), James L. Hunt, Robert L. Maines of McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for appellees.
   OPINION

Before ELY and HUFSTEDLER, Circuit Judges, and SOLOMON, District Judge.

ELY, Circuit Judge:

Acting individually and, purportedly as class representatives, appellants initiated this action against The Coca-Cola Company for damages. The complaint alleged that Coca-Cola had engaged in a nationwide promotional game, Big Name Bingo, that was deceptively structured to deprive many participants of prize money to which they were allegedly entitled under the rules of the game. Under Federal Rule of Civil Procedure 12, the District Court, 318 F.Supp. 785, dismissed the complaint for failing to establish a requisite basis for federal jurisdiction. We affirm.

Appellants sought to ground general federal jurisdiction upon 28 U.S.C. § 1337, which provides:

“The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.”

The specific Act of Congress under which this action was alleged to have arisen is section 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1):

“Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.”

Here, the pivotal question is thus whether private litigants may invoke the jurisdiction of federal district courts solely by. alleging that defendants engaged in business practices proscribed by section 5(a)(1). Whether the District Court had jurisdiction depends upwhether this action was one “arising under” section 5(a)(1).

“Arising under”, in the context of 28 U.S.C. § 1337, requires a plaintiff seeking jurisdiction to state a claim arising under a federal act regulating commerce. To acquire federal jurisdiction, a plaintiff must assert a colorable right to a remedy under a particular federal statute. The statutory provision invoked by the appellants in this case provided them with no direct remedy, either explicitly or implicitly. This conclusion is supported by solid authority of long standing. See Amalgamated Workers v. Edison Co., 309 U.S. 261, 268, 60 S.Ct. 561, 84 L.Ed. 738 (1940) (dictum); Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926); Holloway v. Bristol-Myers Corp., 485 F.2d 986 (D.C.Cir. 1973); United States v. St. Regis Paper Co., 355 F.2d 688, 693 (2d Cir. 1966) (dictum); New Jersey Wood Finishing Co. v. Minnesota Mining & Manufacturing Co., 332 F.2d 346, 352 (3d Cir. 1964) (dictum), aff’d, 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965); Holloway v. Bristol-Myers Corp., 327 F.Supp. 17 (D.D.C. 1971); La Salle Street Press, Inc. v. McCormick & Henderson, Inc., 293 F. Supp. 1004 (N.D.Ill.1968); Smith-Victor Corp. v. Sylvania Electric Products, Inc., 242 F.Supp. 302 (N.D.Ill. 1965); L’Aiglon Apparel, Inc. v. Lana Labell, Inc., 118 F.Supp. 251 (E.D.Pa. 1953); Samson Crane Co. v. Union National Sales, Inc., 87 F.Supp. 218, 221 (D.Mass.1949), aff’d, 180 F.2d 896 (1st Cir. 1950); National Fruit Product Co. v. Dwinell-Wright Co., 47 F.Supp. 499 (D.Mass.1942); Atlanta Brick Co. v. O’Neal, 44 F.Supp. 39 (E.D.Tex.1942). The protection against unfair trade practices afforded by the Act vests initial remedial power solely in the Federal Trade Commission. See id.

Section 5(a)(1) equips the Federal Trade Commission with a flexible tool with which to combat unfair trade practices. See e. g., New Jersey Wood Finishing Co. v. Minnesota Mining & Manufacturing Co., supra at 352. Consumers cannot transmute that tool into a crowbar for prying open door 1337 to the federal courthouse.

Affirmed.

SOLOMON, Senior District Judge

(dissenting):

The Coca-Cola Company conducted a national sales-promotion contest, Big Name Bingo, in which each contestant received a game card with ten questions. The answers were printed on the inside of soft drink cartons and bottle caps. Coca-Cola promised each winner $100. The Official Rules said that one answer might be correct for more than one question and that for some of the questions none of the answers provided were correct. The Rules did not mention that any question had or required more than one correct answer.

Appellants submitted entries with one correct answer to each' question. At the end of the contest, Coca-Cola announced that some questions required more than one correct answer and Coca-Cola refused to pay appellants the $100 prizes. Appellants allege that about 1,500,000 people entered the contest and that almost all of them gave one, and only one, correct answer to each question.

Appellants filed this class action under 28 U.S.C. § 1337 against Coca-Cola and Glendenning Companies, Inc., its advertising agency. Appellants assert that Big Name Bingo was unfair and deceptive and that respondents violated Section 5 of the Federal Trade Act, 15 U.S.C. § 45(a)(1) [the Trade Act].

The District Court dismissed appellants’ action for lack of jurisdiction for their failure to state a claim because Section 5 does not create a private right of action.

Appellants do not seek to expand the coverage of Section 5. The sole issue here is whether aggrieved parties can redress violations of this section even though it does not include an express private right of action. Numerous cases permit a private right of action in similar situations. See J. I. Case v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) [Securities and Exchange Act of 1934]; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944) [Railway Labor Act]; Texas & Pacific Ry. v. Rigsby, 241 U.S. 33, 36 S. Ct. 482, 60 L.Ed. 874 (1916) [Safety Appliance Act]; Burke v. Companía Mexicana De Aviacion S.A., 433 F.2d 1031 (9th Cir. 1970) [Railway Labor Act]; Reitmeister v. Reitmeister, 162 F.2d 691 (2d Cir. 1947) [Federal Communications Act]; Wills v. Trans World Airlines, Inc., 200 F.Supp. 360 (S.D.Cal. 1961) [Civil Aeronautics Act].

In J. I. Case v. Borak, supra, the Supreme Court allowed an aggrieved investor to recover damages resulting from a false proxy statement that violated Section 14(a) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78n(a) [the Securities Act], The Securities Act authorizes the Securities and Exchange Commission (SEC) to enforce Section 14(a), but it does not expressly provide a private right of action for an investor. Because the SEC has been unable to enforce Section 14(a) effectively, the Supreme Court found that private actions are necessary “to make effective the congressional purpose [of protecting investors].” 377 U.S. at 433, 84 S.Ct. at 1560.

Section 5 of the Trade Act is intended to protect the public from “unfair or deceptive acts or practices in commerce.” The Trade Act expressly grants authority to the Federal Trade Commission (the FTC) to enforce Section 5, but it does not mention private actions by aggrieved consumers. »

The FTC has been ineffective in its role as a consumer protection agency. The prohibitions against unfair and deceptive trade practices have been flaunted since their enactment in 1938. Report of the American Bar Association Commission on the Federal Trade Commission, Sept. 15, 1959. The sole enforcement weapon available to the FTC to police most consumer frauds is the cease-and-desist order, which has proved inadequate.

“A cease-and-desist order is not enough to create the kind of deterrent that one needs so that . . . business will police itself, because no agency, State or Federal, can police violations of the law. What you depend on is for the community to police itself. But in order for a community to police itself, you have to have effective sanctions . . . .” S.Rep. No.91-1124, 91st Cong., 2d Sess. 4-5 (emphasis added).

Critics have also complained that the FTC is undermanned and that it has befriended business at the expense of the consumer. See Report of the American Bar Association Commission on the Federal Trade. Commission, supra. Historically, the SEC has been more aggressive and effective than the FTC in pursuing its congressional mandate. Nevertheless, the Court in J. I. Case v. Borak, supra, found persuasive the practical limitations resulting from a limited SEC staff which was confronted with the task of examining 2,000 proxy statements a year. A private right of action was implied because the SEC could not, within its personnel limitations, protect investors' against the fraud from which Congress intended to protect them.

The FTC’s ability to protect consumers is even more severely circumscribed. In 1972, the FTC received 9,000 “applications for a complaint” each month. At that time there were only 27 attorneys in the Commission’s Division of Food and Drug Advertising. With this disparity between need and resources, only a few consumer complaints could be considered and even fewer complaints issued. In fiscal 1971, the Commission’s Division of Food and Drug Advertising issued only twelve complaints under Section 5 of the Trade Act. Four of these cases were contested and eight were settled by consent decrees.

I do not believe the protection of Section 5 can be a reality without private actions, such as appellants’, brought under 28 U.S.C. § 1337 without regard to jurisdictional amount.

Coca-Cola contends that J. I. Case v. Borak, supra, is not applicable here because the Trade Act does not have a jurisdictional provision like the one in the Securities Act, which gives the district courts jurisdiction over all actions “brought to enforce any liability or duty” created by the Act. 15 U.S.C. § 78aa. The Borak decision does not rest on that provision. The Supreme Court interpreted Borak to mean that a private party can maintain an action if his interest falls “within the class that [a] statute [is] intended to protect, and [if] the harm that occurred [is] of the type that the statute [is] intended to forestall.” Wyandotte Trans. Co. v. United States, 389 U.S. 191, 202, 88 S.Ct. 379, 386, 19 L.Ed.2d 407 (1967).

The majority assert that Section 5 does not provide the consumer with either an explicit or implicit direct remedy and that “[t]his conclusion is supported by solid authority of long standing.”

I disagree. Claimants, as consumers, together with competitors are aggrieved parties and are entitled to the benefits and protection of the Trade Act. Nothing in that Act gives the FTC either primary or exclusive jurisdiction. Most of the authorities upon which the majority rely are either admittedly dicta or are unfair competition cases. Many cite Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926), as controlling authority. Moore held that relief in cases of unfair competition “must be afforded in the first instance by the commission.” Id. at 603, 46 S.Ct. at 368.

In my view, Moore is not controlling because the Supreme Court decided Moore before the 1938 Wheeler-Lea Act Amendments expanded Section 5 to protect consumers. . Furthermore, the Court in Moore did not consider whether a private right of action should be implied where administrative remedies are insufficient to afford the protection intended by Congress when enacting Section 5. See Note, Implying Civil Remedies from Federal Regulatory Statutes, 77 Harv.L.Rev. 285, 291 (1963).

The majority’s restrictive interpretation leaves consumers, especially the poor, with little protection against dishonest merchants and manufacturers.

“[Consumers are left with] nowhere to turn for effective redress. Generally quite small amounts are involved as far as any one [consumer fraud] is concerned. The cost of private counsel is generally more than the amount involved .... [T]he consumer’s frustration turns to a feeling of hopelessness and a feeling that the law does not serve him fairly.
“Crime is crime whether it be at the tip of a gun or the tip of a pen and the tip of a tongue of a fraudulent sales operator. All reasonable forces for years have decried consumer fraud. It is long past time we turned orations into actions, lament into law, exhortation into fraud elimination.” S.Rep., supra, at 3.

I believe that Section 5 allows private actions. Appellants’ claims are based on the established principle that a party has a cause of action when damaged by conduct that violates a statute enacted for his protection. Restatement of Torts, 2d § 286. I find no reason to deviate from that principle here.

I would reverse.

       The Honorable Gus J. Solomon, Senior United States District Judge, Portland, Oregon, sitting by designation.

      . Judicial interpretations of “arising under” are equally applicable to 28 U.S.C. § 1331 and 28 U.S.C. § 1337. See Russo v. Kirby, 453 F.2d 548, 551 n.2 (2d Cir. 1971).

      . See Statement by FTC Chairman Miles W. Kirkpatrick before Senate Agriculture, Environmental, and Consumer Pro-fection Subcommitte of the Senate Committee on Appropriations (92nd Congress, 1st Sess., part 3, Page 2642).

      . Only three weeks after enacting the original Section 5, Congress explicitly created a private right of action to redress many of the kinds of unfair competition prohibited by Section 5. See 15 U.S.C. § 15 (Section 4 of the Clayton Act).

      . “A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law expressed in 1 Com.Dig., tit. Action upon Statute (F), in these words: ‘So, in every case, where a statute enacts, or prohibits a thing for the benefit of a person, lie shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.’ (Per Holt, C. J., Anon., 6 Mod. 26, 27.) This is but an application of the maxim, TTbi jus ibi remedium." Texas & Pacific Ry. v. Rigsby, supra, 241 U.S. at 39, 40, 36 S.Ct. at 483.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Robert THROWER, Defendant-Appellant.
    No. 72-2789.
    United States Court of Appeals, Ninth Circuit.
    July 13, 1973.
    Rehearing Denied Sept. 18, 1973.

      Richard L. Patsey (argued), Gladstein, Leonard, Patsey & Andersen, San Francisco, Cal., for defendant-appellant.
    Robert C. Carey, Jr., Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., Joseph E. Reeves, Chester G. Moore, III, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee.
    Before WRIGHT and WALLACE, Circuit Judges, and KELLEHER, District Judge.

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

   PER CURIAM:

This appeal is from a judgment of conviction of failure to submit to induction into the armed forces in violation of 50 U.S.C. App. § 462(a). We affirm.

Appellant registered for the draft on October 5, 1966. On August 20, 1968, he was classified 1-A, and on March 28, 1969, was ordered to report for his pre-induction physical on April 23, 1969. At his physical appellant reported suffering from various ailments, including depression, and claimed that he was a homosexual. However, appellant did not substantiate his ailment claims with letters or other evidence and was found acceptable for induction. Subsequently, on May 5, 1969, appellant submitted to his local board a psychiatrist’s letter, the contents of which are described below. The next day, May 6, 1969, the psychiatrist’s letter was forwarded by the clerk of the board to the Armed Forces Exam-ing and Entrance Station (AFEES). After review of the letter on May 7,1969, AFEES requested that the local board direct appellant to return to AFEES for a psychiatric consultation on May 20, 1969. On that date appellant’s file was reviewed by AFEES and once again appellant was found acceptable for induction. Notice of acceptability was mailed to appellant on June 23, 1969. On December 3, 1969, appellant reported for induction at which time his papers, including the letter of May 5, 1969, were reviewed by AFEES and neuro-psychi-atric examination of appellant was administered; once again appellant was found acceptable for induction. He was prosecuted for refusal to be inducted.

The determinative question upon appeal is whether the psychiatrist’s letter submitted by appellant to his local board constituted new information and required a review of that letter by the local board in accordance with United States v. Miller, 455 F.2d 358 (9th Cir. 1972).

As noted above, the letter in question was reviewed by the Senior Medical Officer at AFEES; however, appellant’s local board never considered or passed upon the letter.

The applicable portions of the letter which was sent by a practising psychiatrist and professor of psychiatry provided as follows:

“He has been troubled with episodes of depression especially in the last one to two years. Related to this, he has had difficulty at college and has transferred from a junior college to the University of Missouri where he could not satisfy academic requirements, returning back to the junior college and after graduating then, [sic] has recently dropped out again from the University of Missouri.
* * # -Jf * *
“There have been certain family problems in terms of his communication with his parents and recent physical violence between he and his father, [sic] In November of 1968 he moved out of his family home and while living alone in an apartment suffered overt paranoid ideation, feeling that he could trust no one and that even his friends were against him . . .
“In light of these developments in his emotional state, in my opinion, this man is not a fit candidate for military service at this time. I have advised that he consider some psychiatric treatment.”

At the time the letter was received appellant was, and for some time past had been, classified 1-A. Thereafter he was ordered to report for induction, which he refused.

Appellant relies upon three sections of the pertinent Army Regulation AR 40-501, which sets forth disqualifying physical conditions, as follows:

Section 2-33a(3),

“. . . Loss of time from normal pursuits for repeated periods even if of brief duration . . . . ;” Section 2-33a(4),
“Symptoms or behavior of a repeated nature which impaired school or work efficiency.”

Section 2-33b,

“History of a brief psychoneurotic reaction or nervous disturbance within the preceding 12 months which was sufficiently severe to require medical attention or absence from work or school for a brief period. . . .”

Measuring the contents of the letter against the quoted regulations, the question presented on review is whether or not there was thereby presented new information upon which appellant was entitled to consideration by the board as a basis for reclassification.

Since we must assume that all the factual statements in the psychiatrist’s letter are true, the question then is whether there is substantial evidence in the record to support the trial court’s finding that no prima facie claim was established for a change in appellant’s 1-A classification. See Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). However, if such information submitted does not constitute a prima facie claim, the local board is not required to reopen and failure to do so is not prejudicial error. United States v. McKinley, 447 F.2d 962 (9th Cir. 1970).

The doctor’s letter may be characterized as setting forth a minimal finding and diagnosis, but surely not a determination that appellant had a history of psycho-neurotic reaction. The recital of the doctor consists substantially of a finding that the appellant had some dif-. ficulties with school, was depressed, and experienced episodes of family problems. None of this is at variance with, nor in addition to, the findings with regard to the pre-induction physical examination theretofore had by appellant on April 23, 1969. During the course of that earlier examination appellant claimed to have had dizziness or fainting spells, frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, nervous trouble of some sort, a drug or narcotic habit, and homosexual tendencies. He further then indicated that he could not cope with school. All of these defects had been considered and evaluated previously, and appellant was found acceptable for induction. It cannot then be said that the doctor’s letter constitutes new information such as to bring it within the applicable Army Regulations so as to have made a prima facie case requiring the board to reopen his classification. The failure of the board to consider the letter, since it contained nothing new, constitutes no deprivation of procedural due process. See United States v. Kelly, 473 F.2d 1225 (9th Cir. 1973); United States v. Bingham, 484 F.2d 365 (9th Cir., 1973).

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Ernest Henry MATOUSEK, Appellant.
    No. 73-1099.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1973. .
    Decided July 24, 1973.
    Reed K. Mackenzie, Minneapolis, Minn., for appellant.
    John K. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   PER CURIAM.

The defendant Ernest Henry Matou-sek was indicted and convicted in a jury trial in the District of Minnesota for the theft of an automobile moving in interstate shipment in violation of 18 U. S.C. § 659 and for the possession and sale of the same automobile in violation of 18 U.S.C. §§ 659 and 2313. He was sentenced to three years imprisonment on each count, the sentences to run concurrently. On appeal defendant claims trial irregularities in admission of evidence, in the Government’s closing argument, and in the instructions. Finding no error, we affirm.

On January 24, 1972, House Chevrolet Company (House), an automobile dealership in Stewartville, Minnesota, ordered delivery of a 1972 Chevrolet Nova from General Motors Corporation. On February 21, 1972, General Motors notified House that a 1972 Nova Coupe was being delivered to it via rail car from Ypsilanti, Michigan. The 1972 Nova was delivered to Clark Transport, Inc. (Clark) on February 23, 1972, in Minneapolis, Minnesota, in route to House, its final destination before sale. The automobile was parked in Clark’s lot and taken sometime on February 23 or February 24, 1972. House never received the 1972 Nova.

On February 28, 1972, Lance Vogel, driving the 1972 Nova described above and bearing 1971 Minnesota license plates assigned to a 1967 Chevrolet Corvette owned by the defendant, was involved in an accident. The 1972.Nova was towed to a lot and searched by police pursuant to a valid warrant. A fingerprint, identified as the defendant’s left thumb print, was lifted from the front vent window of the 1972 Nova.

Vogel told the police and testified that he had traded a motorcycle to the defendant for the 1972 Nova on February 27, 1972, that he was temporarily using the defendant’s license plates from the 1967 Corvette that the defendant had given him. He also testified that he knew the car had been stolen. FBI agents arrested the defendant on March 3, 1972, and pursuant to a proper search found that the license plates were missing from the defendant’s 1967 Chevrolet Corvette parked in his garage. The defendant denied any knowledge to law enforcement officials of the missing license plates, the 1972 Nova, and the trade described by Vogel.

On appeal, the defendant first contends that the District Court improperly allowed FBI Agent Newell to testify concerning denials made by the defendant to Newell relating to knowledge of the automobile theft. He argues that such out-of-court statements were inadmissible hearsay. This contention merits only brief comment, since it is well established that “the fact that a defendant has made false statements in explanation of the conduct which is the subject of a criminal charge against him- is admissible as tending to indicate his guilt.” Rizzo v. United States, 304 F.2d 810, 830 (8th Cir.) (citations omitted), cert. denied sub nom. Nafie v. United States, 371 U.S. 890, 83 S.Ct. 188, 9 L. Ed.2d 123 (1962); Wilson v. United States, 162 U.S. 613, 620-621, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); 29 Am.Jur. 2d § 611 (1967). Thus, the “consciousness of guilt” instruction given by the court was in order.

Second, the defendant argues that the district attorney prejudicially commented during closing argument that the defendant had “changed his testimony.” The defendant claims that this comment referred to the alleged fact that he was varying “his story in an effort to cover up the commission of a crime.” The defendant futher argues that a change in his testimony would have been impossible since he did not take the stand. In effect the defendant is contending that the prosecutor’s comments were outside the record and prejudicial.

The Government argues that the comments referring to a change in testimony related to differing statements made by a defense witness Robert Val Koeh-nen, who first told FBI agents that he had no knowledge of the 1972 Nova and later testified that he, the defendant, and Vogel rode in the 1972 Nova to a liquor store on February 26,1972.

The Government’s interpretation of the prosecutor’s closing comments is correct. On appeal, the defendant incorrectly states that the district attorney said that the defendant had “changed Ms testimony,” whereas the district attorney on several occasions in discussing Robert Val Koehnen’s statements actually said, “there is a change in the testimony.” Although the Government cites no authority for its contention that the comments were non-pre judicial, a legion of cases discusses various closing arguments. Chief Judge Matthes of this Court in a well-considered opinion, Isaacs v. United States, 301 F.2d 706, 736 (8th Cir. 1962), said that “[t]he dominating question, always, is whether the argument complained of was so offensive as to deprive the defendant of a fair trial.” The district attorney’s arguments here involved were not all offensive, but rather were proper comments on the vacillating statements of Robert Val Koehnen, which gave rise to a proper and legitimate argument that the defense was not presenting a true picture of the facts involved. The closing statements were not “improper methods calculated to produce a wrongful conviction. . . .” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Further, the contested utterances, by their very nature, could not have influenced the jury so as to bring about an unjust conviction. Isaacs v. United States, supra, at 737.

Third, the defendant argues that the District Court erred in giving an aiding and abetting instruction, since there was no evidence to support such an instruction. The Government counters by saying that Vogel testified that a man named “Scott” and the defendant drove two cars, the 1972 Nova and a 1972 Buick Riviera, to Vogel’s home to discuss a trade. There was no conclusive testimony on who drove which car to Vogel’s; thus leaving open the question of whether Scott or the defendant acted as a principal or an aider and abettor in the sale of the stolen car. In the light of the foregoing circumstances, the defendant could have been aiding and abetting Scott. If a defendant is indicted as a principal, the indictment need not specifically charge that the defendant aided and abetted the commission of a crime. United States v. Lester, 363 F.2d 68, 72 (6th Cir. 1966), cert. denied, 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967); Mays v. United States, 261 F.2d 662, 664 (8th Cir. 1958). Also there was sufficient evidence in this case for the District Court to give an aiding and abetting instruction. United States v. Megna, 450 F.2d 511, 512 (5th Cir. 1971); United States v. May, 419 F.2d 553, 555 (8th Cir. 1969).

Judgment of conviction affirmed.

      . The Honorable C. Niles Tavares, Senior District Judge, District of Hawaii, sitting by designation in the District of Minnesota, presided at the trial. The Honorable Earl R. Larson, District of Minnesota, sentenced the defendant.


author: FRANK W. WILSON, District Judge.

text:
    Ada ASH et al., Plaintiffs-Appellants, v. HOBART MANUFACTURING COMPANY, Defendant-Appellee.
    No. 72-1897.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 16, 1973.
    Decided Aug 9, 1973.

      John B. Huber, Dayton, Ohio, for plaintiffs-appellants; Ray E. Schmidt, Dayton, Ohio, on brief; Dorfmeier, Schmidt & Stone, Dayton, Ohio, of counsel.
    Daniel W. Hammer, Cleveland, Ohio, for defendant-appellee; Thompson, Hine & Flory, Cleveland, Ohio, Dean E. Den-linger, Smith & Schnacke, Dayton, Ohio, on brief.
    Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and WILSON, District Judge.

       Honorable Frank W. Wilson, Chief Judge, United States District Court for the Eastern District of Tennessee, sitting by designation.

   FRANK W. WILSON, District Judge.

This is an appeal from a decision by the District Court concluding that the plaintiff-appellants had failed in their proof to establish sexual discrimination by the defendant-appellee in employment practices. The case was tried before the District Court sitting without a jury. At the conclusion of the plaintiff’s proof, and upon a motion for judgment made pursuant to Rule 41(b), Federal Rules of Civil Procedure, the District Court made findings adverse to the plaintiffs and denied the relief sought by the plaintiffs under the provisions of Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seq.]. It is contended that the District Court was in error in denying relief and dismissing the complaint for the reasons hereinafter stated and considered.

The record of this appeal reflects that the plaintiffs are 13 individual employees or former employees of Hobart Manufacturing Company, along with their local union collective bargaining agent. (For reasons not set forth in the record, the number of individual employees participating in the lawsuit appears to have been reduced to eight by the time of this appeal.) The substance of the plaintiffs’ complaint is that following enactment of the 1964 Civil Rights Act Hobart continued to practice sexual discrimination in their Receiving Department, and that the plaintiffs, ten of whom were female employees and three of whom were male employees within that Department, have suffered wage discrimination and loss of seniority rights and privileges as a result of Hobart’s unlawful employment practices in this regard. More particularly, it is contended that although in 1966, as a consequence of the Civil Rights Act of 1964, Hobart abolished its former practice of designating “male” and “female” employee classifications throughout its plant, the change was a change in name only in the Receiving Department where the plaintiffs were employed. In that Department, it is alleged, the former male positions were merely redesignated as “general bench inspectors” and the former female positions were redesig-nated as “departmental bench inspectors” and the prior discriminations on the basis of sex continued. Although the work in the two classifications was the same, so the plaintiffs contend, a wage differential of 180 an hour was retained. Furthermore, employees in the “departmental bench inspectors” classification (female) were not permitted to “bid” or “bump” into the higher paying and more desirable positions in the “general bench inspectors” classification (male). Upon these allegations the plaintiffs sought an order of the Court establishing one classification for all employees working in the Receiving Department and further sought monetary compensation, including back pay, for losses suffered by reason of past unlawful discrimination. Such monetary damages were claimed from and after 1966, this lawsuit having been initially filed in 1968.

The defendant’s answer concedes that in 1966 the male and female classifications as previously practiced in the Receiving Department were redesignated, with the former male classification being designated “general bench inspectors” and the former female classification being redesignated “departmental bench inspectors.” However, it contends that sexual discriminations were abolished in that year in all other portions of their plant and that to the extent it was retained in the Receiving Department, this was done in the course of collective bargaining negotiations with the plaintiff-union and in a mutual effort to comply both with the Civil Rights Act of 1964 and the then applicable laws of Ohio regulating the employment of females, including specifically Section 4107.43 of the Ohio Revised Code prohibiting the employment of females in positions “requiring frequent or repeated lifting of weights over twenty-five pounds.” The defendant concedes that an 180 per hour wage differential has at all times continued to exist between the general and the departmental bench inspector classifications, but contends that the wage differential is not based upon sex, but rather is based upon differences in the duties subject to be performed in the two job classifications. The defendant concedes that it excluded the employment of females in the “general bench inspector” classification until 1969, including the right of females to “bid” or “bump” into that classification, but contends that it did so only in an effort to avoid prosecution under the Ohio weight lifting statute above referred to. With a resolution of the differences between the federal and state enforcement officials and notification by the state enforcement authorities in 1969 that they would no longer enforce the Ohio female protective statutes, including the weight lifting statute, the defendant contends that it promptly opened the “general bench inspectors” classification to females and eliminated all sexual restrictions in “bidding” or “bumping” into any classification. In summary, the defendant contends that sexual discrimination played no part in the establishment of the 180 per hour wage differential between the general and the departmental bench inspector positions, that restrictions imposed on the employment of females in the “general bench inspectors” classification between 1966 and 1969 was occasioned by a good faith effort on the part of the defendant, as well as the plaintiff-union, to comply with applicable federal and state laws, with the consequence that no award of back pay for that period would be in order, and, finally, that since 1969 no sexual limitation or discrimination of any kind has been practiced by the defendant with regard to any job classification, including the two complained of job classifications.

The case went to trial upon these contentions. At the conclusion of the plaintiffs’ proof the Court sustained the defendant’s motion made pursuant to Rule 41(b), F.R.C.P., for judgment on the plaintiffs’ proof and entered findings from the bench adverse to the plaintiffs’ contentions. Shortly thereafter the trial court supplemented these findings by filing an “Opinion and Judgment.” The trial court’s findings were in substance: (1) the plaintiffs failed to establish by a preponderance of the evidence that the physical demands and requirements of the positions of “departmental bench inspector” and “general bench inspector” were substantially equivalent; (2) the defendant’s refusal to allow females to enter the “general bench inspector” classification prior to September of 1969 was based upon its attempt to conform to the requirements of the Ohio female protection laws, particularly Section 4107.43 of the Ohio Revised Code limiting weight lifting by female employees; (3) after notice in September of 1969 from Ohio officials that enforcement of that State’s statutes restricting female employment would be discontinued, the defendant in 1970 opened all job classifications to bidding and bumping without regard to sex, although it was not until 1972, in the case of Jones Metal Products Company v. Walker, 29 Ohio St.2d 173, 281 N.E.2d 1, that the Ohio statutes were finally struck down by that State’s Supreme Court as being in violation of the Supremacy Clause of the Federal Constitution; (4) in adherence to its decision in the case of Ridinger v. General Motors Corp., 325 F.Supp. 1089 (1971), the Court would not hold the defendant liable for an unlawful employment practice resulting from compliance with the Ohio statutes; and (5) since no female plaintiff ever sought to bid or bump into the general bench inspector classification, the plaintiffs suffered no injury from the alleged violation.

Essentially upon this state of the record the plaintiffs contend that the trial court committed three reversible errors, each of which would require a remand for a new trial. Citing initially a statement made by the trial court in its remarks from the bench to the effect that “ . . . good faith isn’t in this case at all,” the plaintiffs contend that this is an erroneous statement of the law which led the trial court to ignore all evidence demonstrating that the defendant never complied with the Ohio state laws, but rather was in violation of both the Ohio female lifting law and the Federal Civil Rights Act throughout the period from 1966 to 1969, during which period it now seeks to be excused from its violation of federal law by claiming compliance with state law.

Of course, an employer will not be permitted to ignore or violate a state statute and then claim reliance upon that statute as justifying in any manner his violation of a conflicting federal law. Furthermore, even good faith reliance by an employer upon a conflicting state female employment statute, which statute was later declared invalid, would not render that employer’s actions any less a violation of the Federal Civil Rights Act. However, as contended by the plaintiffs, evidence of good faith reliance is indeed relevant. It is relevant to the proper exercise by the trial court of its discretion in withholding or awarding back pay or other compensation for the period of such reliance. See, in this regard, the decision of this Court in the case of Manning v. International Union, 466 F.2d 812 (6 Cir. 1972), as well as the cases of Le-Blanc v. Southern Bell Telephone & Telegraph Co., 333 F.Supp. 602 (E.D.La., 1971) , aff’d 460 F.2d 1228 (5th Cir. 1972) ; and Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972). Upon the finding of an intentional unlawful employment practice, the fashioning of a remedy, including an award of back pay, is left to the sound discretion of the trial court pursuant to the provisions of Section 2000e-5(g), Title 42 U.S.C. The Court is to fashion the remedy with equitable principles in mind, one such principle being the exercise of good or bad faith on the part of the employer in making compliance with a conflicting state law.

The record in this case, however, fails to bear out the plaintiffs’ contention that the trial court ignored the principles of law hereinabove stated or excused the defendant from the requirement of good faith reliance upon the conflicting state law. While the statement that “ . . . good faith isn’t in this case at all,” was made in the course of the Court’s remarks from the bench, the meaning and significance of this statement, when read in context, cannot be ascertained with any certainty. The remark was made immediately following, and apparently in connection with, the Court’s finding that the plaintiffs had failed to prove discrimination in the establishment of the 18^ wage differential between the general and departmental bench inspector jobs. It is of greater importance, however, to note that in the trial court’s more carefully prepared opinion and judgment, not only is the statement omitted, but rather the Court expressly found “reliance” upon the Ohio statute by the defendant and “compliance” by the defendant with those statutes. Support may be found in the record for these findings, and they are not clearly erroneous. In the course of making these findings the Court made reference to its former decision in the ease of Ridinger v. General Motors Corp., 325 F.Supp. 1089 (1971), and expressly stated that it was adhering to that decision. A reading of the decision in the Ridinger case will reflect that the trial court there amply and correctly stated the requirement of good faith reliance. The plaintiffs’ initial complaint of error is accordingly without merit.

Closely related to the plaintiffs’ initial contention of error is the further assignment that the defendant employer must have taken affirmative action to resolve the conflict between the state and federal laws before it would be entitled to claim good faith reliance upon the state law, and that such was not shown to have been done in this case. While lack of affirmative action may well be relevant to the issue of the employer’s good faith reliance, it is not decisive of that issue. Rather, it is evidence to be weighed by the trier of fact along with all of the facts and circumstances in the case. The assignment is without merit in the context of this case.

The final contention put forth on behalf of the plaintiffs is that the findings of the trial court are unsupported by the evidence or are contrary to the weight of the evidence. This contention is argued upon the premise that the evidence is to be viewed in the light most favorable to the plaintiffs. The case having been tried by the Court sitting without a jury, the appropriate test to be applied by this Court in reviewing the evidence is the “clearly erroneous” test as laid down in Rule 52, F.R.C.P. The fact that the trial court made its findings at the conclusion of the plaintiffs’ evidence pursuant to Rule 41(b), F.R.C.P., does not alter the appellate review standard to be applied. See 5 Moore’s. Federal Practice and Procedure, ¶ 41.13 [4],

It should be noted that the findings of the trial court in this ease are based both upon a lack of evidence sufficient to establish a preponderance as well as evidence preponderating in favor of findings adverse to the position of the plaintiffs. Without attempting to undertake a full discussion of the record as it relates to each finding of the trial court, suffice it to say that this Court has carefully reviewed the trial record and is of the opinion that neither of the findings of fact of the trial court is clearly erroneous. Rather, support for each finding may be found in the record.

In conclusion, it may be noted that, although exhaustion of administrative remedies is alleged, the same is generally denied as to all plaintiffs and specifically denied as to six plaintiffs. This not being a class action, the filing of charges with the Equal Employment Opportunity Commission and administrative action by that Commission is a condition precedent to the maintenance of this action under 42 U.S.C. § 2000e-5. See Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, 418 F.2d 355 (6th Cir. 1969). Proof on this issue appears either to have been omitted from the record or its omission was overlooked in the proceedings below. Further attention to this omission is unnecessary, however, in view of the disposition of the lawsuit upon this appeal.

The judgment of the District Court in dismissing this lawsuit is affirmed.


author: VAN DUSEN, Circuit Judge.

text:
    Hubert DAYE, et al., Appellants, v. The COMMONWEALTH OF PENNSYLVANIA, et al. Mindy MEYERS, an infant, by her parent and natural guardian, Marvin Meyers, et al., Appellants, v. The COMMONWEALTH OF PENNSYLVANIA.
    Nos. 72-1769, 72-1840.
    United States Court of Appeals, Third Circuit.
    Argued May 17, 1973.
    Decided, Aug. 3, 1973.
    Richard F. Stevens, Theodore J. Zeller, Jr., Butz, Hudders & Tallman, Allentown, Pa., for appellant in No. 72-1769.
    James B. Zane, Zane and Zane, New York City, for appellant in No. 72-1840.
    Daniel J. Ryan, John J. Walsh, Jr., LaBrum & Doak, Philadelphia, Pa., for appellee in No. 72-1769.
    J. Shane Creamer, Atty. Gen., Edward V. A. Kussy & Edward A. Hosey, Asst. Attys. Gen., Harrisburg, Pa., for appel-lee in No. 72-1769 and No. 72-1840.
    Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from the opinion and order of the United States District Court for the Eastern District of Pennsylvania entered on June 30, 1972 which granted the motions of defendants to dismiss the complaints brought in a tort action for damages arising out of a bus accident allegedly caused by the improper design, construction and maintenance of an interstate highway and its safety devices.

The plaintiffs in No. 72-1769 are the driver and the corporate owner of the bus (hereafter jointly referred to as Daye). They demanded damages for injuries suffered in the accident by the driver and the bus company. They also sought to bring a class action under F.R.Civ.P. 23 on behalf of the injured and deceased passengers. The defendants in Daye are the Commonwealth of Pennsylvania, the Department of Transportation in that state and named individuals, who were officials with the Department of Transportation.

The complaint in No. 72-1840 was filed by Marvin Meyers on behalf of his daughter Mindy, and by Stanley Bienen-feld on behalf of his daughter Lynda (hereafter jointly referred to as Meyers). In this action the defendants were the Commonwealth of Pennsylvania and the County of Lehigh, Pennsylvania.

The tragedy occurred on July 15, 1970 when a chartered tour bus carrying a group of young people, aged 10 to 17, and their counselors was proceeding westbound on U.S. 22 (Interstate 78) about 12 miles west of Allentown, Pennsylvania. A light rain was falling at the time and had been preceded by a heavy shower. The wet pavement allegedly caused the front wheels of the bus to hydroplane, which initiated a skid from which the driver was unable to recover. The bus rotated one hundred and eighty degrees (180°) clockwise through the guardrail alongside the highway and off the northern embankment. It overturned at the bottom of the embankment, ejecting eighteen persons and pinning six of them under the left side of the bus. Seven children were fatally injured.

The study by the National Transportation Safety Board suggested that contributing factors to the accident included:

“low basic skid resistance of the pavement in wet weather, and the probable presence of water draining across the pavement in an abnormal manner. The fatalities and injuries were caused by an ineffective highway guardrail which failed to prevent the bus from rolling down an embankment, by bus windows which failed to prevent ejection of some passengers, in some cases, by the absence of occupant restraints.”

Motions to dismiss were filed by the defendants in both Daye and Meyers. The Commonwealth in essence argued that it had not waived its immunity under the Eleventh Amendment of the Constitution, that the action was not authorized by the laws of the Commonwealth and it was in violation of Article I, Section 11 of the Pennsylvania Constitution. The Department of Transportation entered a similar motion to dismiss. The named defendants in their motion to dismiss contended that the motion was not maintainable as a class action; and that the defendants were public employees and officials of the Commonwealth and were acting within the course and scope of their official duties. The motions to dismiss were granted and this appeal followed.

“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 or Subjects of any Foreign State.”

The parties raise a number of contentions, but the issue central to both their appeals is whether the Commonwealth by its acceptance of funds under the Federal-Aid Highway Act entered into an area of federal preemption resulting in a waiver of its Eleventh Amendment immunity from suit, or whether Congress in enacting the Highway Safety Act intended to create implied causes of action that would permit private parties to pierce the states’ sovereign immunity statutes in order to be compensated for injuries sustained as a result of a state’s violation of the regulations promulgated under that Act?

Both Daye and Meyers suggest that since our decision in Mahler v. United States, 306 F.2d 713 (3rd Cir. 1962) the Congress has enacted legislation which clearly establishes an intention that' states receiving federal highway funds will waive their immunity from suit. They also contend that the recently enacted Highway Safety Act indicates an implied, if not an express, intention by Congress to regulate the interstate highway systems, and thus subjects the states to Congressional regulation under the power reserved to the federal government by the commerce clause of the Constitution.

. . Suits may be brought against the Commonwealth in such manner, in such courts, and in such cases as the Legislature may by law direct.”

In Mahler the contention was made by the plaintiff that the United States failed to fulfill its duty by causing to be approved defective highway plans, by failing to discover faulty construction, and by failing to provide for and make inspections after construction on the interstate highways was completed. This court rejected those arguments holding:

“that in enacting the provisions respecting approval and inspection by the federal government, it was not the intention of Congress to impose a duty on the Secretary of Commerce, on the Bureau of Public Roads, or on the United States or any of its agencies, to make sure that a member of the trav-elling public, a user of a federal-aid highway, was not injured because of negligence in carrying out these provisions. The concern of Congress was to make sure that federal funds were effectively employed and not wasted.
“In light of the legislative history traced above, it is plain that the appellants cannot successfully rely on the federal highway acts unless they are able to show that legislation following the Act of 1921 has affixed to the inspection and approval sections the additional purpose of securing the safety of those using the federal-aid highways.
“[w]e have discovered nothing which would indicate that Congress has redesigned the inspections during and after construction to function as anything more than that which was originally intended, viz., a means of protecting the federal investment. Without such an expansion of purpose, the inspection provisions of the statute do not create a duty running to these plaintiffs.” (footnote omitted)

Mahler, supra, 306 F.2d at 721, 722; see also Daniel v. United States, 426 F.2d 281 (5th Cir. 1970); Delgadillo v. El-ledge, 337 F.Supp. 827 (E.D.Ark.1972).

It is clear that the Eleventh Amendment denies the federal courts jurisdiction to entertain a suit brought by a private party against a state absent that state’s consent. E. g., Employees of the Department of Public Health & Welfare of Missouri, et al. v. Department of Public Health & Welfare of Missouri, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945). However, a state may, of course, waive its immunity from suit. Parden v. Terminal R. Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Petty v. Tennessee-Missouri Comm’n., 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959).

In Parden a suit was brought against a State-owned railroad to recover damages under the Federal Employers’ Liability Fund. The Court held that Alabama by entering into interstate commerce as a rail carrier waived its immunity from suit and “necessarily consented to such suit as was authorized by that Act.” 377 U.S. at 192, 84 S.Ct. at 1213.

In Petty the Court recognized that a state may also waive its immunity by forming an interstate agency pursuant to a compact entered into with consent of Congress, which specifically creates a right “to sue and be sued” in that agency. Both Parden and Petty demonstrate that a waiver most likely will take place when a state “leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation. . . .’’At that point, “its subjects itself to that regulation as fully as if it were a private person or corporation.” 377 U.S. at 196, 84 S. Ct. at 1215. However, mere entry into such sphere alone will not constitute a waiver. “Congress must express an intent to override the state’s immunity.” Red Star Towing and Transportation Co. v. Department of Transportation of N. J., 423 F.2d 104, 106 (3rd Cir. 1970); see Employees of the Department, of Public Health & Welfare, supra,.

Although a state at its pleasure may waive its Eleventh Amendment immunity, the conclusion by a court that there has been a waiver will not be lightly inferred. Petty, supra 359 U.S. at 276, 79 S.Ct. 785. The cases make clear that when a waiver does take place it must be clear and unequivocal. Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Rothstein v. Wyman, 467 F.2d 226 (2nd Cir. 1972); O’Neill v. Commonwealth of Penna., 459 F.2d 1 (3rd Cir. 1972); Knight v. New York, 443 F.2d 415 (2nd Cir. 1971).

We do not find such a waiver merely because Pennsylvania receives federal highway funds. We have carefully examined the various provisions of the Federal-Aid Highway Act and the Highway Safety Act, the committee reports explaining the sections of those Acts, and debates that took place when the Acts were considered and passed. We are unable to say that Congress conditioned the receipt of those funds upon the states’ willingness to waive their immunity from tort liability; nor are we able to say that Congress intended a waiver to implicitly take place by its mere enactment of the Highway Safety Act. Cf. Rothstein v. Wyman, supra.

It is noted that the Senate Report to the Federal-Aid Highway Act of 1966, while tracing the historical role of government in the construction and maintenance of public highways recognized that

“[I]n accordance with the concepts of division of authority between the Federal Government and the States, the legislation reserved to the States the initiative in determining what roads were to be built, the character of their improvement in the preparation of plans and specifications, the acquisition of rights-of-way and the awarding of contracts — subject to Federal approval. It placed immediate supervision of construction in the hands of the State highway departments, but provided for Federal review and approval. Thus, each level of government had its own responsibilities and authority and a balanced partnership between the States and the Federal Government was initiated.”

1966 U.S.Code Cong, and Adm.News, at 2801. There is no indication that this division of authority has been altered. Therefore, the District Court properly concluded:

“We, therefore, hold: (1) in voluntarily applying for and accepting federal funds under the Federal-Aid Highway Act and in entering into interstate commerce in the construction of interstate highways, the Commonwealth has not waived its Eleventh Amendment immunity; and (2) neither the Federal-Aid Highway Act nor the Highway Safety Act create an implied cause of action to recover damages for personal injuries sustained as a result of a violation of the standards set forth therein or regulations promulgated thereunder.”

344 F.Supp. at 1349. This Court may not graft on to Congressional actions an intent which is neither expressly, nor implicitly provided.

Daye, in addition, contends that if there has not been a waiver of immunity, the immunity of Pennsylvania and the Department of Transportation must fall before the guarantees of the Fourteenth Amendment. We have held otherwise. See O’Neill v. Commonwealth, supra, 459 F.2d at 2.

Daye also alleges that the District Court erred in dismissing the suit against the named individual officers of the Pennsylvania Department of Transportation. However, the recent decision in Dubree v. Commonwealth of Penna., et al., 8 Pa.Cmwlth. 567, 303 A.2d 530 (1973) reaffirmed the doctrine that in Pennsylvania state highway officials may escape liability where they acted within the scope of their authority and their alleged negligent conduct was not intentionally malicious, wanton, or reckless. Since Daye’s complaint did not allege intentional or malicious negligence, the District Court properly dismissed the action against the named defendants. See 344 F.Supp. at 1349-1350.

We have considered Meyers’ contention that interference with the right to engage in interstate commerce is a constitutional tort for which the courts will imply a remedy and reject it.

In conclusion we note that while the doctrine of immunity is under attack in Pennsylvania and has been withdrawn from governmental units, municipal corporations and quasi-corporations, Ayala, Jr., et al. v. Philadelphia Board of Public Education, Pa., 305 A.2d 877 at n. 2 (May 23, 1973), it nevertheless remains the law in Pennsylvania that state governmental functions are protected. Biello v. Pennsylvania Liquor Control Board, Pa., 301 A.2d 849 (1973). Whether or not the doctrine of sovereign immunity is an “anachronism” that provides “unjust” results, Biello, supra (Nix dissenting), is for the courts of the Commonwealth to resolve. We are required to follow the state law insofar as diversity is a jurisdictional basis in these suits and are unable to alter that which the state courts and legislature have refused to change.

The order of the District Court dismissing the complaints in No. 72-1769 and Nq„ 72-1840 will be affirmed.

      . The opinion of the District Court is reported in 344 F.Supp. 1337 (E.D.Pa.1972).

      . The District Court concluded that the action brought by Daye was “not maintainable as a class action in that it fails to meet the prerequisites set fortli in Rule 23 of the Federal Rules of Civil Procedure.” 344 F.Supp. at 1343. The dismissal of the Daye complaint insofar as it alleged a class action was not appealed, and has, in any event, been rendered moot by the conclusions of this opinion on the liability issues.

      . The complaint filed by Meyers named the County of Lehigh. Based on the stipulation of plaintiffs an order dismissing the action without prejudice against the County was entered May 1, 1972. See Doc. 8.

      . National Transportation Safety Board, Highway Accident Report, Report No. NTSB-HAR-71-8.

      . Id. at 38.

      . The Eleventh Amendment to the United States Constitution provides:

      . Article I, Section 11 of the Pennsylvania Constitution, P.S., provides:

      . 23 U.S.C. § 101 et seq.

      . 23 U.S.C. § 401 et seq.

      . Plaintiffs contend that the Commonwealth by failing to use reasonable care in the design of U.S. Route 22 violated 23 U.S.C. §§ 106(a), 109(a), 109(d) and 109(e). They contend that failure to utilize reasonable care in the construction violated 23 U.S.C. § 114(a). They contend that the failure to provide reasonable care in the maintenance of that highway violated 23 U.S.C. § 116(a) and 116(c).

      . 23 U.S.C. § 402(a) provides:
      “(a) Each State shall have a highway safety program approved by the Secretary, designed to reduce traffic accidents and deaths, injuries, and property damage resulting therefrom. Such programs shall be in accordance with uniform standards promulgated by the Secretary. Such uniform standards shall be expressed in terms of performance criteria. Such uniform standards shall be promulgated by the Secretary so as to improve driver performance (including, but not limited to, driver education, driver testing to determine proficiency to operate motor vehicles, driver examinations (both physical and mental) and driver licensing) and to improve pedestrian performance. In addition such uniform standards shall include, but not be limited to, provisions for an effective record system of accidents (including injuries and deaths resulting therefrom), accident investigations to determine the probable causes of accidents, injuries, and deaths, vehicle registration, operation, and inspection, highway design and maintenance (including lighting, markings, and surface treatment), traffic control, vehicle codes and laws, surveillance of traffic for detection and correction of high or potentially high accident locations, and emergency services. Such standards as are applicable to State highway safety programs shall, to the extent determined appropriate by the Secretary, be applicable to federally administered areas where a Federal department or agency controls the highways or supervises traffic operations. The Secretary shall be authorized to amend or waive standards on a temporary basis for the purpose of evaluating new or different highway safety programs instituted on an experimental, pilot, or demonstration basis by one or more States, where the Secretary finds that the public interest would be served by such amendment or waiver.”

      . The appellants place great weight on the decision in Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5th Cir. 1971) and language in Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613 (3rd Cir. 3971) to support their assertion. However, in Texas Highway Department the suit was for injunctive relief designed to enforce the provisions of federal law which set forth conditions under which federal aid may be distributed to the states. Involved in that action was whether the state of Texas needed to comply with Section 102(2) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332 (Supp.1971), which requires an environmental impact statement on “major federal actions significantly affecting the quality of the human environment. . '. .” The Fifth Circuit held that such a statement would be necessary. Likewise, in Bartlett, the issue involved the effect of the National Environmental Policy Act of 1969. The parties in the present action seek monetary damages from the state treasury, precisely what the Eleventh Amendment sought to avoid. We believe that this suit is different from an action to require the proper expenditure of federal funds. See Ward v. Ackroyd, 344 F. Supp. 1202 (D.Md.1972).

      . While Mahler involved a claim asserted under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, and is therefore not completely apposite, its discussion of the federal highway program is instructive.

      . For the legislative history of 23 U.S.C. § 402 see 1966 U.S.Code Cong, and Adm. News at 2741; 1968 U.S.Code Cong, and Adm.News at 3482; 1970 U.S.Code Cong, and Adm.News at 5392. Discussion of 23 U.S.C. § 106 may be found in 1963 U.S.Code Cong, and Adm.News at 1027; and 1970 U.S.Code Cong, and Adm.News at 5392; for the history of 23 U.S.C. § 109 see 1966 Code Cong, and Adm.News at 2800; and 1970 U.S.Code Cong, and Adm.News at 5392. 23 U.S.C. § 114 is discussed in the 1960 U.S.Code Cong, and Adm.News at 3159.

      . 303 A.2d 530; see also Ammlung v. City of Chester et al., 224 Pa.Super. 47, 302 A.2d 491 (1973).


author: JOHN R. BROWN, Chief Judge:

text:
    Claxton L. BURNS, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. THIOKOL CHEMICAL CORPORATION, Defendant-Appellee.
    No. 71-3426.
    United States Court of Appeals, Fifth Circuit.
    July 19, 1973.
    Rehearing and Rehearing En Banc Denied Oct. 26, 1973.

      U. W. Clemon, Birmingham, Ala., for plaintiff-appellant.
    C. W. Stelzenmuller, Birmingham, Ala., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

This case demonstrates once again that “the shortest way around is often the longest way through.” Webb v. Standard Oil Co., 5 Cir., 1971, 451 F.2d 284, 285.

Suit was filed by the appellant Burns under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. and 42 U.S.C.A. § 1981, against his former employer, the Thiokol Chemical Corporation, both in an individual capacity and as a “private attorney-general” representing a class of aggrieved Blacks. The complaint sought appropriate declaratory and injunctive relief against Thiokol because of its alleged discriminatory promotion policies against the class and specific relief on behalf of Burns in this regard. It also sought damages for the Company’s alleged failure to grant medical treatment to Burns after he sustained minor injuries during the course of his employment, and, finally, reinstatement with back pay due to the Company’s reprisal discharge of Burns.

After trial on the merits, the District Court entered findings of fact and conclusions of law holding against Burns in every respect. On appeal, Burns asserts that the trial court erred in (i) sustaining Thiokol’s objections to certain F.R. Civ.P. 33 pre-trial interrogatories, (ii) holding that the evidence would not support a finding of class discrimination, and (iii) holding that Burns’ discharge was for poor work rather than in reprisal for his registering of complaints against the Company’s alleged discriminatory practices.

Finding Burns’ first contention to be exceedingly meritorious, we reverse and remand the case for a new trial.

A Gadfly In The Porridge

Neither party challenges the factual accuracy of the statement that over the course of his fourteen years in the employ of Thiokol, Claxton Burns developed “bad chemistry” with management. Indeed, both parties seek to use this fact to their advantage. Thiokol expends a considerable amount of space in its brief urging that not only did Burns develop such caustic personality and attitudinai traits that he became incapable of adequately performing his job, but also that he was a bellicose maverick without sufficient rapport with his fellow Black workers to represent them as a class.

The District Court found that Burns’ attitude and his actions were anathema to the management of Thiokol. The Court also held that Burns was discharged, not because of his race, but because he spread false rumors around the business community about Thiokol’s alleged failure to render medical aid to him after he collapsed as a result of working with some chemicals on November 21, 1968 in violation of a Company-rule. Normally, this finding would be entitled to the protection of the “buckler and shield” of F.R.Civ.P. 52(a). Because we hold here, however, that the Court’s view of the context of the case was necessarily circumscribed by its own restrictive policy towards Burns’ discovery efforts, the issue must be tried again. See note 10, infra.

Discovery

In an effort to amass statistical evidence and define the contours of his case, Burns propounded interrogatories to Thiokol under F.R.Civ.P. 33 on May 14, 1970. Among other things, the interrogatories sought information regarding the name, age, sex, educational background, and employment history of all white employees at Thiokol’s Huntsville plant dating from January 1, I960; a list of both permanent and temporary job vacancies within the Huntsville plant and background information on both those applicants who competed for the jobs and those who were selected; and a job description of each non-bargaining unit job at the Huntsville plant. The Company filed timely objection to these interrogatories contending, inter alia that they sought irrelevant information and that they would be unduly burdensome to answer. Because the District Court sustained these objections in an oral, unrecorded order, we are unable to determine which — if either — -of these grounds for objection was the basis for its decision. But it matters not, for neither will suffice on this record.

The discovery provisions of the Federal Rules of Civil Procedure allow the parties to develop fully and crystalize concise factual issues for trial. Properly used, they prevent prejudicial surprises and conserve precious judicial energies. The United States Supreme Court has said that they are to be broadly and liberally construed. Hickman v. Taylor, 1947, 329 U.S. 495, 507, 67 S.Ct. 385, 391, 91 L.Ed. 451, 460; Schlagenhauf v. Holder, 1964, 379 U.S. 104, 114-115, 85 S.Ct. 234, 240, 13 L.Ed.2d 152, 161-162.

Because discovery matters are committed almost exclusively to the sound discretion of the trial Judge, appellate rulings delineating the bounds of discovery under the Rules are rare. But the Judge’s discovery rulings, like his other procedural determinations, are not entirely sacrosanct. If he fails to adhere to the liberal spirit of the Rules, we must reverse. See Wallin v. Fuller and Nationwide Mutual Insurance Co., 5 Cir. 1973, 476 F.2d 1204 [1973]. And this is especially true in Title VII eases where courts have refused to allow procedural technicalities to impede the full vindication of guaranteed rights. Sanchez v. Standard Brands, Inc., 5 Cir. 1970, 431 F.2d 455, 461.

The only pertinent discovery-type appellate decisions which we have found in the Title VII area are those in which an appellate tribunal has been called upon to consider the propriety of a District Court’s order either granting or denying the enforcement of an EEOC Demand for Access to Evidence. See e. g. Georgia Power Co. v. EEOC, 5 Cir., 1969, 412 F.2d 462; Local No. 104, Sheet Metal Workers International Association v. EEOC, 9 Cir., 1971, 439 F.2d 237; Graniteville Co. v. EEOC, 4 Cir., 1971, 438 F.2d 32; Blue Bell Boots, Inc. v. EEOC, 6 Cir., 1969, 418 F.2d 355. All have uniformly upheld EEOC’s right of access to the requested information. Any information relevant — in a discovery sense — to an EEOC investigation is likewise relevant to the private attorney-general, either in his individual role or in his capacity as the claimed representative of a class. H. Kessler and Co. v. EEOC, 5 Cir., 1973, 472 F.2d 1147 [1972] (En Banc).

Relevancy

“In the problem of racial discrimination, statistics often tell much, and Courts listen.” Alabama v. United States, 5 Cir., 1962, 304 F.2d 583, 586, aff’d, 1962, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112. Our wide experience with cases involving racial discrimination in education, employment, and other segments of society have led us to rely heavily in Title VII cases on the empirical data which show an employer’s overall pattern of conduct in determining whether he has discriminated against particular individuals or a class as a whole. See generally Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Rowe v. General Motors Corp., 5 Cir., 1972, 457 F.2d 348; United States v. Hayes International Corp., 5 Cir., 1969, 415 F.2d 1038; Bing v. Roadway Express, Inc., 5 Cir., 1971, 444 F.2d 687; United States v. Georgia Power Co., 5 Cir., 1973, 474 F.2d 906 [1973].

One of the first legal questions precipitated by the passage of the Civil Rights Act of 1964 in this regard was the extent to which pre-Act discriminatory conduct was to be taken into account in evaluating post-Act charges. There can no longer be any quarrel that pre-Act conduct is relevant to the extent that it sets in motion a chain of consequences which effects the status of the Black employee in the post-Act period, for “Congress did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the act.” Quarles v. Philip Morris, Inc., E.D.Va., 1968, 279 F.Supp. 505, 516.

In United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, we held that although evidence of preAct discrimination did not establish a per se violation in the post-Act era, the history did bear directly on the probability that similar conduct would continue.

“In a Title VII ‘pattern or practice’ cases, an employer’s failure to hire or promote one Black may prove nothing. Once the single or isolated barrier is passed determination of the existence vel non of a racially discriminatory pattern or practice must depend on the quantum of proof presented in each case. No precise mathematical formulation is workable, nor did Congress intend to impose .any racial constants. Certainly, however, an employer’s failure to hire or promote all or the great majority of Blacks while he concurrently hires or promotes Whites may well indicate racial discrimination.”

Jacksonville Terminal, supra, 451 F.2d at 441 (emphasis added). Cf. United States v. West Peachtree Tenth Corp., 5 Cir., 1971, 437 F.2d 221. We then proceeded to make an exhaustive analysis and comparison of the employment statistics regarding both Blacks and Whites. Only by this juxtaposition of factors could the Court effectively determine whether the employer had preferred one class of employees over another. “Discrimination on the basis of race or sex is class discrimination," Georgia Power Co. v. EEOC, 5 Cir., 1969, 412 F.2d 462, 468, although the manifestations may frequently be individualized. Flax v. Potts, 5 Cir., 1963, 313 F.2d 284, 289.

The importance of obtaining an overall statistical picture of an employer’s practices with regard to both Black and White employees does not depend on the presence of an alleged “pattern or practice” or a valid charge of class discrimination or class action. We categorically rejected this notion in Georgia Power v. EEOC, supra. There the EEOC sought historical, statistical information regarding both Black and White employees of Georgia Power. The company objected to EECO’s Demand for Access to this evidence contending that because EEOC was only investigating the charge of an individual party that he was refused employment solely because of his race that the only relevant evidence was that relating to the filling of that particular vacancy. Disagreeing, we said:

“Certainly this information is relevant, but we cannot agree that it was the only relevant evidence. Discrimination on the basis of race or sex is class discrimination. The EEOC cannot reasonably be expected to discern such discrimination by examining data relating to two individuals.”

Georgia Power Co. v. EEOC, supra, 412 F.2d at 468. Even though a suit seeks only individual relief for an individual instance of discrimination, and is not a “pattern or practice” suit by the government or a class action, the past history of both Black and White employees is surely relevant information. Id.; Marquez v. Omaha District Sales Office, 8 Cir., 1971, 440 F.2d 1157, 1160; Gran-iteville Co. v. EEOC, 4 Cir., 1971, 438 F.2d 32, 42; Blue Bell Boots, Inc. v. EEOC, 6 Cir., 1969, 418 F.2d 355, 358. It is therefore discoverable.

Without making any pretense of exhaustively cataloguing possible uses of this information to Burns we note that one of Thiokol’s chief witnesses was the personnel manager of its Huntsville Plant, Charles G. Babcock. Mr. Babcock testified at length about the employment practices of Thiokol during his fourteen year association with the Company. He undertook to give certain data relating to the size of the Thiokol work force during various periods of time, and the general manner in which vacancies were filled. On cross-examination of Babcock, Burns’ counsel was obviously unable to ask intelligent, informed questions relating to any specifics. Perhaps the information sought by their interrogatories would have served to bolster Babcock’s exculpatory testimony in behalf of the Company. Then again, it might have allowed plaintiff’s counsel to pin the witness down to some unexplainable particulars. We do not know. The point is that open disclosure of all potentially relevant information is the keynote of the Federal Discovery Rules. In this case, that focal point has been ignored.

In Jacksonville Terminal, supra, we said that “deprived of an historical overview in these situations, Justice would 'surely be blind,” 451 F.2d at 441. Were Justice to be deprived of an historical overview of the industrial context in which Claxton Burns was discharged, she could not — -as she must — be color blind.

The Burden

Thiokol argues that even if the information sought by Burns’ interrogatories is somewhat relevant to his claim, that the onerous burden of compiling, assimilating, and synthesizing voluminous employment records into cogent, responsive answers to the interrogatories outweighs the utility of the information. We disagree.

Of course, the extensive listing of information required to fully answer the interrogatories is somewhat cumbersome. But, as the Ninth Circuit has pointed out, the fact that an interrogatory calls for a list does not make it improper :

“Local 104 contends there is something unique about an order to compile lists. Local 104 is mistaken.”

Local No. 104, Sheet Metal Workers International Association v. EEOC, 9 Cir., 1971, 439 F.2d 237, 243. The law requires a company to provide a prospective union with a list of employees in the unit. Excelsior Underwear, Inc., 1966, 156 N.L.R.B. 1236; NLRB v. Wy-man Gordon, 1969, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709. Similarly, it requires a company to furnish shareholder lists in a proxy context, Studebaker Corp. v. Gittlin, 2 Cir., 1966, 360 F.2d 692, 698. And the law can compel an employer who is a defendant in a Title VII suit to furnish lists of employees, Georgia Power Co. v. EEOC, 5 Cir., 1969, 412 F.2d 462; Local No. 104, supra.

Of course the particular details of the discovery process are committed to the sound discretion of the trial court. Knowing, by virtue of our mandate, that the information is relevant, and therefore, discoverable, the judge may wish to require full answers to the interrogatories. But that is not his only option.

Since his initial ruling in this case, a new rule, F.R.Civ.P. 33(c) has been promulgated. It gives Thiokol the option to “specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.”

The judge may also exercise the full extent of his discretionary powers under F.R.Civ.P. 26(c) with appropriate protective orders as to time, place, manner, etc., in which the interrogatories will be answered.

Finally, our determination of the relevancy of this information does not irrevocably commit the judge and the parties to the process of discovery by interrogatories under Rule 33. If the judge determines that this particular manner of disseminating the information is in fact unduly burdensome on Thiokol, he may direct that alternative means be employed. Our paramount concern is that the information be available to the plaintiff.

Reversed and remanded for a new trial.

      . In Sanders v. Dobbs Houses, Inc., 5 Cir., 1970, 451 F.2d 1097, we held that the pre-existing, non-vivified remedy under this section of the Civil Rights Act of 1866, was not pre-empted by the passage of Title VII ninety-eight years later. Accord, Waters v. Wisconsin Steel Works, 7 Cir., 1970, 427 F.2d 476.

        . Company Rule 2, of Group A provides that,
      “EMPLOYEES SHALL NOT:
      2. Make willfully false, slanderous, libelous, or otherwise malicious or degrading statements about the Corporation, its policies, employees, products, or performance which tend to bring the Corporation into public disrepute.”
      Burns points out, however, that he is the only employee of Thiokol to ever be discharged for violating the rule. Because we reverse on the basis of unduly restrictive discovery rulings we need not reach the merits of the Company’s contention and Burns’ rejoinder in this respect.

      . Rule 33 provides, in pertinent part, as follows:
      (a) Availability ; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
      Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the inter-rogaipries, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.
      (b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.
      An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.
      The permissible scope of interrogatories under Rule 33 is governed by the provisions of F.R.Civ.P. 26(b) which says:
      (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows :
      (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

      . “9. List the name, age, address, sex, and school years completed by/of each white person hired by the Company at its Huntsville plant since January 1, 1960 and presently employed by the Company and with respect to each such employee state
      (a) date of initial employment;
      (b) all job classifications held since date of initial employment, including present job classification;
      (c) date of each job classification change;
      (d) plant age;
      (e) department age;
      (f) lino of promotion age.

      . 10. List each permanent vacancy which has occurred in each job classification at the Huntsville plant since January . 1, 1960 and with respect to each such vacancy state
      (a) date of each such vacancy;
      (b) name, race, date of initial hire, department, job classification, all seniority dates of each person who bid for the vacancy;
      (c) name of successful bidder;
      (d) whether the successful bidder had previously worked in the job posted for bid, and, if so, dates worked in job posted for bid.

      . 11. List each temporary vacancy of eight (8) hours or more which has occurred in each job classification in the Huntsville plant since July 1, 1964 and with respect to each such vacancy state
      (a) reason for the vacancy, and length thereof;
      (b) name and race of each employee who filled the vacancy;
      (c) all seniority dates of persons filling the vacancy;
      (d) prior job status of employee filling the vacancy;
      (c) length of time employee remained in the vacancy;
      (f) subsequent and current status of the employee who filled the vacancy.

      . 18. State the job description of each non-bargaining unit job at the Company’s Huntsville plant; the wage rates for each such job; and the name, address, age, race, sex, present position, and jjrior job classification of each employee currently employed in a non-bargaining unit position. Also indicate the date on which each such person holding a nonbargaining unit position was entered his present position.”

      . Thiokol’s copious grounds for objection included the argument that the interrogatories called for immaterial, irrelevant, and incompetent evidence, and evidence not embraced within the issues involved in the trial of the case.. Obviously, Thiokol failed to take account of the difference in degrees between the quantum of “relevancy” which will support an effort to discover background information and the more demanding degree of “relevancy” exacted by the trial Judge at the evidentiary tender, as reflected by the statement in Rule 26(b) that “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Ultimate admissibility is simply not the test for relevancy of material to be discovered. Freeman v. Seligson, 1968, 32 U.S.App. D.C. 56, 405 F.2d 1326, 1335.

      . In Kessler we held that the provisions in 42 U.S.C.A. §§ 2000e-5(a), 2000e-8(e) prohibit the EEOC from “making public” the information obtained as a result of its investigatory efforts would not prevent EEOC from divulging such information to the charging party. In addition to the historic grounds which compelled this construction of these statutes, we also drew support from the public policy in favor of enabling the private attorney-general to effectively don the “mantle of the sovereign”, Jenkins v. United Gas Corp., 5 Cir., 1968, 400 F.2d 28, 32, and effectuate the policies at the Act or take up the banner of an aggrieved class:
      This conclusion is further justified on policy grounds. It is difficult to understand how a grievant could amass the statistical information alone that would be necessary in order for him to know whether he had anything more than a suspicion of discrimination without access to the kind of information referred to in Section 709(e) concerning his employer’s practices with regard to promotions, terminations and the like.
      472 F.2d at 1151.

      . Thiokol correctly demonstrates that Subsection (c) was not in effect until July 1, 1970, long after the date upon which it was obligated to furnish the answer to Burns’ interrogatories. This option will be available on remand if Thiokol should choose to elect it — subject, of course, to the judge’s approval. But see Sutter, Current Procedural and Eviden-tiary Considerations Under Title VII of the Civil Rights Act of 1964: Ready for the Defense, 6 Ga.L.Rev.- 505, 512-14 (1972).

      . Since we liold that the information sought by plaintiff’s interrogatories was discoverable, we have withheld ruling on the merits of Burns’ appeal on issues (ii) and (iii). On remand, the trial court should allow the parties to proceed directly to properly complete the discovery process, and then reevaluate Burns’ class action in light of the information available to him at that time, in accordance with Johnson v. Georgia Highway Express, 5 Cir., 1969, 417 F.2d 1122. See also Parham v. Southwestern Bell Telephone Co., 8 Cir., 1970, 433 F.2d 421. This would also include any guidance that might be furnished by the en banc court in Huff v. N. D. Cass Company of Alabama, 5 Cir., 1972, 468 F.2d 172, currently under submission to the full Court. Because of the importance of the determination of Burns’ qualification to serve as the representative of the class, the court should resolve the issue “as soon as practicable”. F.R.Civ.P. 23(c) (1).
      Ordinarily we accord great latitude to the District Court in situations which call for a retrial as to the extent to which the record of the first trial may be used in the second with appropriate supplementation. Because most of the testimony bearing on Burns’ individual claim was given without the benefit of necessary discovery, however, we believe that in this instance the entire claim must be tried in full again. In this regard, we note that Thiokol has consistently urged on appeal that a prior arbitration of Burns’ discharge was dispositive of that issue. The extent to which reliance shall be placed upon that proceeding must be determined in the first place by the trial court in accordance with the principles enunciated by this Court in Rios v. Reynolds Metals Co., 5 Cir., 1972, 467 F.2d 54.