author: MULLIGAN, Circuit Judge: HAYS, Circuit Judge OAKES, Circuit Judge

text:
    Clifton C. TANG, Plaintiff-Appellant, v. APPELLATE DIVISION OF the NEW YORK SUPREME COURT, FIRST DEPARTMENT, and Honorable Justices Aron Steuer, et al., Defendants-Appel-lees.
    No. 537, Docket 72-2222.
    United States Court of Appeals, Second Circuit.
    Argued March 13, 1973.
    Decided Oct. 19, 1973.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1611.
    Hays, Circuit Judge, filed an opinion concurring in the result; Oakes, Circuit Judge, filed a dissenting opinion.

      Clifton C. Tang, pro-se.
    Daniel M. Cohen, Asst. Atty. Gen. of N. Y. (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen. of N. Y., on the brief), for defendants-appellees.
    Before HAYS, MULLIGAN and OAKES, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Southern District of New York, dismissing plaintiff’s action for injunctive and declaratory relief under the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff Tang had moved to convene a three-judge court pursuant to 28 U.S.C. § 2281 and § 2284 to decide the constitutionality of New York CPLR 9406(3), alleging that the requirement of actual residence violated the equal protection clause of the 14th Amendment as well as his constitutionally based right to travel. The District Court found that the plaintiff’s complaint did not present a constitutional question sufficiently serious to require the convening of a three-judge court.

The facts in this case are undisputed. Appellant and his wife have lived in Ten-afly, New Jersey since 1954, with their two children. The appellant concedes that this is his permanent residence. Appellant is a practicing attorney in New Jersey, having been duly admitted to the 'bar of that state. In 1971 appellant took and passed the New York Bar examination and was certified by the Board of Law Examiners in March, 1972. Thereupon appellant submitted a ■verified application for admission to the New York Bar, complete with the necessary papers, including proof of actual residence in New York since June 1, 1971. The sole purpose of this temporary residence was to comply with the residence requirement set out in New York CPLR 9406(3). The appellant’s residence in New York consisted of a-rented room in the Hotel Dixie, 250 West 43rd Street in Manhattan. The appellant spent two to four nights a week there, the rest of the time with his family in New Jersey. Appellant planned to continue this practice until he was admitted to the New York Bar, when he would presumably return to full time residence in New Jersey.

Appellant’s application for admission to the bar was denied. The appropriate member of the Committee on Character and Fitness stated:

“I have examined the questionnaire and supporting papers of applicant Clifton C. Tang. I find that Mr. Tang possesses the requisite character and fitness for admission to the Bar and the only impediment to his admission is the fact that he is a temporary resident and not a permanent resident.”

Appellant then petitioned the Appellate Division of the Supreme Court of the State of New York for an order to admit him to the Bar. This petition was denied by a court divided 3 to 2. 39 App.Div.2d 357. 333 N.Y.S.2d 964 (1st Dep’t 1972). The majority interpreted the “actual residence” requirement of New York CPLR 9406(3) to mean permanent residence, or more accurately, intent to establish permanent residence. The majority found that plaintiff’s 10 month residence in Manhattan was “a temporary sojourn with no intent of establishing a permanent residence,” and denied plaintiff’s petition. The dissent argued that the majority opinion was discriminatory, “in favor of a select class, permanent residents,” and against the class to which the plaintiff belonged, bar applicants who are actual but not permanent residents.

Following the decision of the Appellate Division the appellant brought this action in the District Court for the Southern District of New York which dismissed the complaint.

Since this case was decided by the District Court, the Supreme Court has affirmed Suffling v. Bondurant, 339 F. Supp. 257 (D.N.M.), aff’d sub nom. Rose v. Bondurant, 409 U.S. 1020, 93 S. Ct. 460, 34 L.Ed.2d 312 (1972), upon which the District Court largely relied. However Suffling did not decide the constitutional issue presented in this case. In Suffling, a three-judge court held that the New Mexico Supreme Court rule requiring six months’ residence before admission to the bar did not violate the equal protection clause or the constitutionally based right to travel. The court reasoned that six months was a reasonable period for providing the state an opportunity to examine the character and fitness of the applicant. The Supreme Court affirmed without opinion.

The question in the instant case differs from Suffling because of the interpretation given to the New York statute by the New York courts, since the Appellate Division interpreted New York CPLR 9406(3) to require permanent residence not merely six months’ residence. Thus, the New York requirement of actual residence as interpreted by the New York courts is substantially broader than that approved in Suffling and affirmed by the Supreme Court. The question remains whether the broader New York residence requirement had a “rational connection with the applicant’s fitness or capacity to practice law.” Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). We do not reach this issue.

The appellant has conceded on oral argument that in his state proceeding, he raised the same federal constitu-. tional issues which he now relies upon in the federal court in this action under 42 U.S.C. § 1983. See Grubb v. Public Util. Comm’n, 281 U.S. 470, 477-478, 50 S.Ct. 374, 74 L.Ed. 972 (1930). There is no question but that Tang could have appealed the three-two decision of the Appellate Division to the New York Court of Appeals on the merits (the interpretation to be given “actual residence” in New York CPLR 9406(3)) as well as on the federal constitutional questions. In the event that he was unsuccessful he would have been assured of a direct appeal to the United States Supreme Court. Tang however abandoned the state courts after the intermediate ruling of the Appellate Division and is now in effect seeking a review of the constitutional issues in a federal court. The district court lacks jurisdiction to review state court determinations of federal constitutional questions and on that ground we affirm the dismissal of the action. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

There is no doubt that after having been denied admission to the New York bar, Tang could have immediately initiated his § 1983 action in the federal district court. In fact this is the usual procedure in cases where state admission requirements have been attacked on constitutional grounds. Instead he selected the state forum to raise the constitutional question which he had the perfect right to do. However,

[w]hile the lower federal courts were given certain powers in the 1789 [Judiciary] Act, they were not given any power to review directly cases from state courts, and they have not been given such powers since that time. Only the Supreme Court was authorized to review on direct appeal the decisions of state courts. Thus from the beginning we have had in this country two essentially separate legal systems. Each system proceeds independently of the other with ultimate review in [the Supreme] Court of the federal questions raised in either system. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286, 90 S.Ct. 1739, 1742, 26 L.Ed.2d 234 (1970).

The fact that Tang brought his action under § 1983 does not alter the Rooker principle. Thus in Anderson v. Lecon Properties, Inc., 457 F.2d 929 (8th Cir.), cert, denied, 409 U.S. 879, 93 S.Ct. 132, 34 L.Ed.2d 133 (1972), the plaintiffs had started a state action in which they initially were successful, but were eventually subject to a writ of mandamus issued by the Minnesota Supreme Court ordering the trial court to vacate its judgment in plaintiffs' favor. They thereupon instituted a § 1983 action in the federal district court alleging that the Supreme Court of Minnesota had inter alia violated their federal constitutional rights of due process and equal protection under the Fourteenth Amendment. In affirming the district court’s dismissal of the complaint, the court stated:

To the extent that there was any error of constitutional magnitude in the Minnesota Supreme Court’s decision, plaintiffs’ sole recourse was to the Supreme Court of the United States. Federal courts of inferior jurisdiction have no jurisdiction to review alleged errors in state court judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Evanson v. Northwest Holding Company, 368 F.2d 531 (8th Cir. 1966).

457 F.2d at 930. This position has also been adopted in Paul v. Dade County, 419 F.2d 10 (5th Cir. 1969), cert, denied, 397 U.S. 1065, 90 S.Ct. 1504, 25 L. Ed.2d 686 (1970); Brown v. Chastain, 416 F.2d 1012 (5th Cir. 1969), cert, denied, 397 U.S. 951, 90 S.Ct. 976, 25 L. Ed.2d 134 (1970).

There is authority in this circuit, Katz v. Connecticut, 433 F.2d 878 (1970); Taylor v. NYCTA, 433 F.2d 665 (2 Cir. 1970), and elsewhere, Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert, denied, 410 U.S. 930, 93 S. Ct. 1368, 35 L.Ed.2d 592 (1973); P.I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972); Howe v. Brouse, 422 F.2d 347 (8th Cir. 1970); Dean Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321 (6th Cir.), cert, denied, 389 U.S. 975, 88 S.Ct. 476, 19 L.Ed.2d 467 (1967), which squarely holds that a prior state court decision adjudicating federal constitutional questions is binding as res judicata in a subsequent federal action under § 1983.

We do not rest our opinion here on the basis of res judicata since the respondent in the state action was the Committee on Character and Fitness of the First Judicial District and in the federal action the appellant has named as defendant the Appellate Division, First Department, as well as the three justices who voted to deny his petition. It is generally understood that the doctrine of res judicata is limited to cases where the same parties are again before the court. Developments in the Law- — • Res Judicata, 65 Harv.L.Rev. 818, 861-62 (1952). While it is tempting to consider the substitution here a technicality or to employ the related concept of collateral estoppel, we see no purpose in the exercise. The procedure adopted by the appellant accentuates the need here to apply the doctrine of Rooker and its progeny. If appellant had simply sued the Character Committee in a § 1983 action in the federal court, there is substantial authority that res judicata would bar his action. It would seem to follow a forti-ori that the direct suit against the state judiciary raising the very same issues should be dismissed if the principle of comity is to have any meaning. Not only is the practice bizarre but the affront to the state legal system is blunt and unnecessary. The appellant was not dragged into the state court, he freely sought that forum. See Note, Res Judicata: Exclusive Federal Jurisdiction and the Effect of State-Court Determinations, 53 Va.L.Rev. 1360, 1385 (1967).

There is no question but that the state court had jurisdiction of the person and subject matter here involved. Moreover this Court has been particularly chary of intrusion into the relationship between the state and those who seek license to practice in its courts. See Erdmann v. Stevens, 458 F.2d 1205 (2d Cir.), cert, denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972). Had appellant perfected his appeal, the New York Court of Appeals may well have reversed on the merits or followed the federal constitutional reservations expressed by Presiding Justice Stevens in his dissenting opinion. The district court here is bound by the Appellate Division’s construction of the New York rule and judicial manpower may well be needlessly wasted if the opinion of that court does not in fact represent the law of that state.

While appellant’s constitutional arguments may well be substantial and we are sympathetic with the plight of one who has lived in a Times Square Hotel for 10 months all to no avail, the concept of federalism should not be scrapped at the whim of the disgruntled suitor.

Affirmed.

HAYS, Circuit Judge

(concurring in the result):

I concur in the result on the ground of res judicata.

I do not consider it necessary in order to uphold this result to resort to the vague and uncertain doctrine of “comity.”

OAKES, Circuit Judge

(dissenting):

While both my colleagues apparently concede that Suffling v. Bondurant, 339 F.Supp. 257 (D.N.M.), aff’d mem. sub nom. Rose v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972), does not render appellant’s constitutional claim wholly insubstantial, thereby calling for convocation of a three-judge court, both affirm the lower court’s decision dismissing the action.

To reach this conclusion my colleagues rely on two different, although basically related, theories, neither of which were briefed or argued before either this or the district court. Judge Mulligan rests his argument on Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), but he also hints at elements of comity. Judge Hays rests his conclusion on res judicata. These theories are related because both allow that if appellant had not filed a petition with the Appellate Division, then his action here would not be dismissed. Both theories advance a notion that appellant had a choice of remedies — either to appeal the Character and Fitness Committee’s determination and interpretation through the New York courts or to bring a § 1983 action in Federal court. Each concludes that Mr. Tang elected to proceed through the New York courts by filing a petition with the Appellate Division, and goes on to hold that his only-route to federal adjudication of his constitutional claims was by appeal to the Supreme Court from a determination of the New York Court of Appeals. What both my colleagues miss, however, is that appellant never invoked the jurisdiction of the New York courts for any purpose other than to make an application for admission to the bar, and inasmuch as application to the Appellate Division of the Supreme Court is the sole and exclusive manner by which persons may be admitted to the New York bar, Erdmann v. Stevens, 458 F.2d 1205, 1208-1209 (2d Cir.), cert, denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972), making such an application cannot be deemed an election of remedies.

Applications for admission to the New York bar are themselves actions in the Appellate Division. To say that its determination denying an applicant’s admission cannot be challenged in a § 1983 action because it is res judicata would be to make a wholly unreasonable distinction between (a) those who challenge rules of admission (1) prior even to application, Law- Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), (2) when denied the opportunity to take the bar examination, Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970), (3) when denied admission to the bar in states where such decisions are made by administrative agencies, cf. Lipman v. Van Zant, 329 F.Supp. 391 (N.D.Miss.1971), or (4) when denied certification after passing the bar exam, as suggested by my colleagues — all of . whom may bring § 1983 challenges — and (b) those who challenge rules of admission when denied admission by the court to which the original application was made — the situation in this case.

My colleagues construe appellant’s original petition for admission as though it were an appeal of some sort. Rule 9404 of the CPLR, however, provides that “[ujnless otherwise ordered by the appellate division, no person shall be admitted without a certificate from the proper committee . . ..” Appellant had been denied a certificate from the committee, but his application for admission had not been denied. Indeed, the committee does not grant or deny the application for admission; “final disposition” of the application is done “by the appellate division” under Rule 9407. Mr. Tang’s petition to the Appellate Division was, therefore, not an appeal from the committee. Cf. Kon-igsberg v. State Bar of California, 353 U.S. 252, 254, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). Rather, it was a petition in respect to his still pending application asking for an order under Rule 9404 admitting him without certification or in the alternative directing the committee to certify him. Because appellant in petitioning the Appellate Division was merely following the CPLR Rules governing admission to the bar and because the petition was the only means by which to become admitted, appellant should not be considered to have elected to pursue his remedy in the state courts, and be thus precluded from .raising his constitutional claim in a federal district court.

Judge Hays states that appellant is foreclosed from raising his constitutional claim in a lower federal court on the ground of res judicata. This cannot be. First, res judicata is an affirmative defense which must be set forth in the pleadings. Fed.R.Civ.P. 8(c). Moreover, the failure to plead res judicata as a defense amounts to a waiver of that defense, and it cannot be raised on appeal for the first time. Badway v. United States, 367 F.2d 22, 25 (1st Cir. 1966). The same is true for collateral estoppel. Cf. Federal Savings and Loan Insurance Corp. v. Szarabajka, 330 F. Supp. 1202, 1205 (N.D.Ill.1971). Here defendants-appellees have never pleaded res judicata or even briefed it. To hold against appellant on this basis would frustrate the whole point of Rule 8(c) —to try to prevent surprise to the other party, who in this case has never had an opportunity to brief the point.

More importantly, where the causes of action are different or the parties different, res judicata does not apply and collateral estoppel extends only to those issues actually litigated and decided. Commissioner v. Sunnen, 333 U.S. 591, 597-598, 68 S.Ct. 715, 92 L.Ed. 898 (1948); Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1876); IB Moore, Federal Practice ¶ 0.405[3], at 633 (1973). Here, there is no indication that appellant ever claimed before New York courts that the residency requirement of § 9406 was unconstitutional. Judge Mulligan states that appellant conceded on oral argument that he raised this issue in his state proceeding. My memory may not be so good as my colleague’s, but my interpretation of appellant’s comments to us and his papers before the Appellate Division in his appendix to the petition is that he merely informed the New York court of the recent United States Supreme Court decisions concerning residency requirements to aid the court in defining “actual” residence. That this was not interpreted as a constitutional attack on the requirement is shown both by the answering affidavit of the chairman of the Committee on Character and Fitness and the complete failure of the Appellate Division majority to address any constitutional attack, one which was hinted at in the dissenting opinion of the Appellate Division, to be sure, but solely for purposes of a statutory construction argument.

Judge Mulligan cites Rooker as the basis for his decision. Rooker, however, was an action in equity “to have a judgment . . . declared null and void,” 263 U.S. at 414, 44 S.Ct. at 149, on the basis of constitutional error. A reading of the case makes clear that the relief there sought was to reverse or modify the actual judgment of the state court. While appellant here does ask for such relief (paragraphs E and F of Complaint), his complaint is not limited to that. He also asks for a declaratory judgment that Rule 9406(3) is unconstitutional and for an injunction restraining appellees from further enforcement of it. These latter claims are not covered by the Hooker doctrine, because declaring Rule 9406(3) unconstitutional and granting injunctive relief would not disturb the Appellate Division’s earlier decision. Our decision would not make appellant a member of the New York bar.

Judge Mulligan hints at considerations of comity to justify denying federal relief to appellant, and cites Erdmann v. Stevens, supra, as an example of this court’s reluctance to intrude “into the relationship between the state and those who ask license to practice in its courts.” Erdmann, however, dealt only with an attempt to enjoin disciplinary proceedings against an already admitted lawyer; this court denied the injunction on the basis of the sextet of cases led by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Federal courts have not been unwilling to consider constitutional challenges to state bar admission rules and practices, and indeed I find no case where a federal court has dismissed a complaint or affirmed a dismissal on the basis of “comity” in a case challenging a state’s bar admission practices.

In conclusion, therefore, I believe that the district court has jurisdiction and that appellant’s constitutional claims are not insubstantial. I cannot agree that when an application for admission to the New York bar is denied by the only body empowered to grant or deny such applications — the Appellate Division— such a denial insulates the challenged rule from constitutional scrutiny in a § 1983 action.

      . N.Y.C.P.L.R. § 9406 (McKinney's Consol. Laws, Supp.1972) provides in pertinent part: No person shall receive said certificate from any committee and no person shall be admitted to practice as an attorney and counselor at law in the courts of this state, unless he shall furnish satisfactory proof to the effect:
      3. that he has been an actual resident of the state of New York for six months immediately preceding the submission of his application for admission to practice and that such residence has continued until the final disposition of the application for admission to practice.

      . In liis petition to the Appellate Division, Tang requested the court to take judicial notice of Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Potts v. Honorable Justices of the Supreme Court of Hawaii, 332 F. Supp. 1392 (D.I-Iawaii 1971); Webster v. Wofford, 321 F.Supp. 1259 (N.D.Ga.1970); Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970). He also devoted two pages of his three-page brief to the federal constitutional argument. The dissenting opinion referred specifically to the alleged constitutional infirmity of the New York residency requirement. The silence of the majority opinion on the constitutional issue is of course immaterial.
      “The question of the constitutional validity of the order was distinctly presented by the appellant’s petition and necessarily was resolved against him by the judgment affirming the order. Omitting to mention that question in the opinion did not eliminate it from the ease or make the judgment of affirmance any the less an adjudication of it.” Grubb v. Public Util. Comm’n, 281 U.S. 470, 477-478, 50 S.Ct. 374, 377, 74 L.Ed. 974 (1930).

      . N.Y.Const. art. 6, § 3(b); N.Y.C.P.L.R. ■ § 5601, as amended (McKinney Supp.1972). See, e. g., In re Anonymous, 17 N.Y.2d 674, 269 N.Y.S.2d 454, 216 N.E.2d 612 (1966).
      State courts are of course competent to adjudicate questions of federal constitutional rights. See NAACP v. Button, 371 U.S. 415, 427-428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

      . 28 U.S.C. § 1257(2).; see R. Stern & E. Gressman, Supreme Court Practice § 3.4 (4th ed. 1969).

      . E. g., Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); Suffling v. Bondurant, 339 F.Supp. 257 (D.N.M.), aff’d sub nom. Rose v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972); Harris v. Louisiana State Supreme Court, 334 F.Supp. 1289, 1297-1298 (E.D.La.1971) ; Lipman v. Van Zant, 329 F.Supp. 391 (N. D.Miss.1971); Webster v. Wofford, 321 F. Supp. 1259 (N.D.Ga.1970); Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D. N.C.1970).

      . Even if an action is commenced in the federal court and that court abstains, argument of the federal constitutional issues without reservation would constitute an election precluding a return to the federal district court. See England v. Board of Medical Examiners, 375 U.S. 411, 421, 84 S.Ct. 461, 11 L.Ed. 2d 440 (1964). A fortiori where the state action is prior in time and the constitutional argument has been made in that court, there is no jurisdiction in the district court to reverse the judgment of the state court which is the relief sought here. The additional prayer for declaratory and injunctive relief cannot salvage an otherwise defective complaint and confer jurisdiction where none exists.

      . Jurisdiction to review in habeas corpus proceedings is not barred by prior state adjudication since the habeas applicant must have first “exhausted the remedies available in the courts of the State . . . 28 U.S.C. § 2254(b).

      . The Supreme Court has not yet ruled on the question, denying certiorari in Florida State Board of Dentistry v. Mack, 401 U.S. 960, 91 S.Ct. 971, 28 L.Ed.2d 245 (1971) (dissenting opinion by Mr. Justice White joined by Chief Justice Burger).

      . Judge Mulligan states, “There is no doubt that after having been denied admission to the New York bar, Tang could have immediately initiated his § 1983 action in the federal district court.” Yet the plain facts of this case show that Tang did initiate his § 1983 action immediately after being denied admission. This is so because only the Appellate Division has the power to deny admission. The committee only denies certification but certification is not indispensable to admission to the bar. CPLR Rule 9404.

      . Indeed, had appellant come to federal court after his denial of a certificate by the committee, the State could well have argued that the anti-injunction statute, 28 U.S.C. § 2283, would operate to bar injunctive relief because appellant would still be involved in a proceeding in a state court. See also Chaney v. State Bar of California, 386 F.2d 962, 966 (9th Cir. 1967), cert, denied, 390 Ü.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968), (alternative ground for denying § 1983 action challenging bar admission requirement — -plaintiff had been denied Committee’s certification, but only state supreme court had power to deny admission; plaintiff thus was not deprived of any right).

      . The concluding paragraph of this affidavit filed with the Appellate Division was:
      The sole question thus before the Court is the question as to whether or not residence as used in C.P.L.R. Rule 9406 means permanent residence or domicile, or whether a temporary, and indeed “naked” residence, in the sense of renting a hotel room, is enough to satisfy the intent of the statute.
      In Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948), the Court, in considering a defense of res judi-cata, strongly emphasized that both parties had briefed and argued that issue fully in the lower courts. Appellant here has never been accorded such an opportunity,

      . There is dicta in Erdmann, 458 F.2d at 1210, which, on its face, would apply equally to disciplinary and admission proceedings. However, then Chief Judge Friendly, writing for a three-judge court in Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F.Supp. 117, 124 (S.D. N.Y.1969), aff’d, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), explicitly rejected a comity-abstention argument in a direct attack on state bar admission procedures. Even application of tlie doctrine of “comity” in the disciplinary context in Erdmann is open to dispute, moreover, in view particularly of the Supreme Court’s recent decision in Gribson v. Berryhill, 411 U.S. 564, 575-577, 93 S.Ct. 1689, 36 L.Ed. 2d 488 (1973). See Polk v. State Bar of Texas, 480 F.2d 998, 1001-02 & n. 10 (5th Cir. 1973).


source: Caselaw Access Project

author: GIBSON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America Appellee, v. Irving Willie TOMPKINS, Appellant.
    No. 73-1144.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Oct. 24, 1973.

      William L. Kutmus, Des Moines, Iowa, for appellant.
    Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.

      Before GIBSON and BRIGHT, Circuit Judges, and SMITH, Senior District Judge.

       The Honorable Talbot Smth, Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Circuit Judge.

The defendant, Irving Willie Tompkins, was indicted on two counts of violating 18 U.S.C. § 1708 (possession of government cheeks stolen from the United States mails) and on two counts of violating 18 U.S.C. § 495 (uttering and forging stolen government checks). The Honorable William C. Stuart, District Judge, Southern District of Iowa, dismissed one count of possession of a government check stolen from the mails and one count of uttering and forging a stolen government check, both counts relating to a federal tax refund check. The jury found defendant guilty of one count of violating 18 U.S.C. § 1708 and one count of violating 18 U.S.C. § 495, both counts relating to a United States Treasury social security check. The District Court sentenced defendant to five years imprisonment each on the two counts, the sentences to run concurrently.

On appeal, defendant raises two issues: (a) alleged error in admitting a United States Treasury claim form for the proceeds of a government check, as violative of the hearsay rule, and (b) violation of defendant’s Sixth Amendment’s right to confrontation by admission of the same form into evidence. We reject these arguments and affirm the judgment of conviction.

On April 4, 1972, the defendant drove into Central National Bank’s automobile drive-in facility, in Des Moines, Iowa, and presented a United States Treasury cheek (a social security check) payable to Richard Harris for payment. The teller cashed the check for the defendant, but on the back of it, wrote down an address given to her by the defendant and noted his 1972 Iowa license plate number as he drove away. The United States Secret Service traced the license plate number to its registrant, Maxine Frances Bumpus, with whom the defendant lived. The Bumpus’ residence was nearby the Harris’ home. Handwriting analysis established that the defendant signed Richard Harris’ name to the social security check, and a fingerprint of the defendant was on the check.

Richard Harris, the intended recipient of the check, did not receive his April, 1972, social security check (hereinafter check) which usually arrived on the third of each month. Richard Harris died on August 26, 1972, and the defendant’s trial commenced on February 5, 1973. Harris’ wife testified concerning the check and the Department of Treasury claim form (hereinafter form) alleged by defendant to be inadmissible due to the hearsay evidence rule.

Mrs. Harris testified that her husband had been ill with a stroke for approximately three years before his death. Although Mr. Harris had signed his monthly social security checks and cashed them at a local grocery store before a subsequent hospital stay, Mrs. Harris — though not a payee — had been cashing these checks for two and one-half years prior to his death by endorsing his and her names. On April 3, 1973, when Mr. Harris’ check should have arrived, Mr. Harris was bedridden with a stroke and a broken hip, and could not talk. Mrs. Harris testified that her husband was usually in bed upstairs during this time and that he occasionally came downstairs with someone’s help. She also said that someone was always in the house with Mr. Harris during this time, and that the check never arrived.

This appeal centers on the admission of a Government exhibit, a Department of Treasury Form TUS 1133C (Rev. 5-70), entitled “Claim .Against the United States for the Proceeds of a Government Check or Checks.” This form is regularly used by the Department of Treasury to process claims for the proceeds of federal government checks that should have been received by payees, but for some reason were not. The form included the typed name of Richard Harris as payee and the amount, date, symbol, and check number. The form was received by the Claims Division of the Department of Treasury on July 10, 1972. In addition to this information, the following printed paragraph appeared:

“I am the payee and owner of the following-described check and, having examined a photocopy of the check and the endorsement thereon, declare that I did not in any manner participate in any part of the proceeds and I hereby make claim for the amount of the cheek.”

The form included spaces for the signatures of the payee, copayee (if applicable), and two witnesses.

During the late spring or early summer of 1972, Mrs. Harris informed the local social security office that Mr. Harris had not received his April, 1972, check, and the above-described form and a photostatic copy of the forged check was eventually forwarded to the Harris residence. Government officials told Mrs. Harris that Mr. Harris had to sign his name or an “X” on the form. Mr. Harris knew, before the form was sent, that his April, 1972, check was missing. Mrs. Harris took the form to the hospital and helped Mr. Harris hold a pencil as he made a shaky “X” on the blank provided for the payee. Mrs. Harris signed her name as a “co-payee,” though the check was not payable to her, and two witnesses also signed the form. At trial, Mrs. Harris further testified that neither Mr. Harris nor she had cashed the April, 1972, check and that Mr. Harris had not authorized anyone else to cash it. The defendant timely objected to the admission of the form, which objection was overruled. No admonitions or instructions were given by the court concerning any limited admissibility of the form and the entire form was admitted into evidence. All of the above facts are uncontradicted, since defendant presented no evidence.

First, defendant contends that the contested form should have been inadmissible as hearsay. He argues that the form was “offered into evidence for the purpose of proving that appellant was without authority to possess the U. S. Treasury check at issue, and endorse the payee’s name.” The Government responds that the form was admissible under the Proposed Rules of Evidence 804(a)(4), 51 F.R.D. 315, 438 (March 1971); under the Federal Business Records Act, 28 U.S.C. §§ 1732 and 1733; or as a dying declaration.

Only brief comment is required on the dying declaration contention. The Government only asserts that a dying declaration is “generally and widely recognized as an exception to the hearsay rule,” but has not demonstrated from the record the fulfillment of the usual requirements for the dying declaration rule.’ C. T. McCormick, Law of Evidence, §§ 258-64 at 555-60 (1954) (hereinafter McCormick). We should note here that it is generally recognized that “the declarant must at the time he made his statement have been conscious that death was near and certain” and that “[h]e must have lost all hope of recovery.” McCormick, § 259 at 555 (footnotes omitted). Although the record indicates that Mr. Harris was a “very sick” man with a stroke, there is no express testimony indicating that the decedent had lost all hope of recovery or that he knew death was near and certain. Since the record does not indicate these requirements of the dying declaration rule, Richard Harris’ statement is not admissible as a dying declaration exception to the hearsay rule.

At the onset, defendant does not argue that the entire form was inadmissible to prove that a claim had been made by the intended payee. Clearly, 28 U.S.C. §§ 1732 and 1733 allow the introduction of this form, since that form was made promptly during the regular course of business of the Department of Treasury. The fact that the claim was. made is “typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls.” Palmer v. Hoffman, 318 U.S. 109, 113, 63 S.Ct. 477, 480, 87 L.Ed. 645 (1943); see 5 Moore’s Federal Practice § 43.04 at 1332-1338 (1971).

However, the difficulty with the admission of this contested form concerns Richard Harris’ statement that he “did not in any manner participate in any part of the proceeds.” This statement was hearsay, as it was written evidence by Mr. Harris, “of a statement made out of court, such statement being offered as an assertion' to show the truth of matters asserted therein, and, thus resting for its value upon the credibility of the out-of-court asserter.” McCormick § 275 at 460.

Fed.R.Crim.P. 26 governs the admissibility of evidence and the competency and privileges of witnesses for criminal trials in federal courts. It reads:

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

We, therefore, examine the defendant’s contentions in relation to the admissibility of the contested form according to the principles of common law as interpreted by federal courts in the light of reason and experience. Particularly, we keep in mind relevancy, materiality, and trustworthiness of hearsay type evidence.

The Government claims that Proposed Rules of Evidence 804(a)(4), 51 F.R.D. 315, 438 (March 1971), allows the admission of the form. However, since these rules of evidence are at this time still only proposed, they are not viable on the date of this occurrence or trial and do not, as yet, have force of law. Therefore, this opinion offers no view on whether Proposed Rule 804(a)(4) would allow admission of the form for the purpose of proving the truth of the statement made by Richard Harris.

Although the Government asserts that 28 U.S.C. §§ 1732 and 1733 (the Business Records Act) allow the admission of the entire form to prove the truth of the matters therein asserted, it makes no particular argument concerning the statutes or cites any case authority. The Government’s strongest statutory argument favoring admissibility rests on the following specific language:

“All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissiblity.”

28 U.S.C. § 1732(a).

To apply this statutory argument, Richard Harris must be seen as the “entrant or maker” of the form. However, Professor McCormick has commented:

“This [the above quoted sentence from 28 U.S.C. § 1732(a)] could be interpreted as abolishing the requirement of first-hand knowledge by one whose job is to know the facts. The more reasonable interpretation, however, is to read ‘entrant or maker’ as meaning the recorder only, and thus merely making clear that one who makes the record on reports of others need not know the facts, without broadening (beyond the probable intent of the drafters) the content of this hearsay exception to embrace records founded on reports by one who has no business duty to know the facts.” (footnote omitted).

McCormick § 286 at 602.

Further, the Court in Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 481, 87 L.Ed.645 (1942), said:

“Nor is it any answer to say that Congress has provided in the Act that the various circumstances of the making of the record should affect is weight, not its admissibility. That provision comes into play only in case the other requirements of the Act are met.”

The Court, in explaining these requirements, said in Palmer, that the test for admissibility should be the “character of the records and their earmarks of reliability.” Palmer v. Hoffman, supra at 114, 63 S.Ct. at 480. It also held:

“If the Act is to be extended to apply not only to a ‘regular course’ of a business but also to any ‘regular course’ of conduct which may have some relationship to business, Congress not this Court must extend it. Such a major change which opens wide the door to avoidance of cross-examination should not be left to implication.”

Palmer v. Hoffman, supra at 114, 63 S. Ct. at 481.

Although the Department of Treasury or other government agencies does investigate claims made by payees and, therefore, would have some personal knowledge concerning payees’ statements on the contested form, the use of the form alone to prove that the payee did not participate in the proceeds of government checks abrogates cross-examination of payees. The Business Records Act, particularly 28 U.S.C. § 1732(a), should' not be read so broadly as to allow the admission of Richard Harris’ statement that he “did not in any manner participate in any part of the proceeds.”

This case is similar to the many cases involving third party statements contained in police reports and held inadmissible. For example, in United States v. Graham, 391 F.2d 439, 448 (6th Cir. 1968), the court held that “a police report is not admissible under the Federal Business Records Act for the sole purpose of establishing the truth of the matter asserted by a third party informant.” In the present case, the form also should not be admissible to prove the truth of the matter asserted by Richard Harris, a third party informant to the United States Government, though it would be admissible as proof that the cheek in question had been reported stolen. United States v. Graham, supra at 448. The investigatory capacities of the police and the United States Government, in addition to the reliability of police reports and Treasury Department claim forms, are similar. However, in both situations, the third party informant should be available for cross-examination. The police and the Treasury Department should not be the ultimate triers of such important facts, which are for jury resolution.

The Graham court also said:

“These acts [Business Records Acts] were intended to make admissible records which because made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recordation of third party statements is routine, taken apart from the source of the information recorded, imports no guaranty of the truth of the statements themselves. There is no reason for supposing an intention to make admissible hearsay of this sort. So to construe these statutes would make of them almost limitless dragnets for the introduction of random, irresponsible testimony beyond the reach of the usual tests for accuracy.”

United States v. Graham, supra at 448, quoting Note, Revised Business Entry Statutes: Theory & Practice, 48 Colum. L.Rev. 920, 926-27 (1948).

Therefore, Richard Harris' statement in the Department of Treasury form that he “did not in any manner participate in any part of the proceeds” was inadmissible hearsay.

Our inquiry, however, does not terminate at this point, for this case involves unusual facts and other relevant evidence adequately supports the judgment of conviction. Although Richard Harris’ statement was inadmissible hearsay to prove the truth of the matters therein asserted and although Richard Harris, deceased at the time of defendant’s trial, was not available for cross-examination, Mrs. Harris did testify concerning the contested form. She further related the history of her husband’s illness and his inability even to come downstairs without help on April 3, 1972, when the check should have arrived. According to the Harris’ usual routine of cashing the social security cheeks, Mr. Harris would not even have seen the April, 1972 check. Obviously, Mrs. Harris handled the family’s finances during the entire period covered by this check and the ensuing execution of the form.

In addition to these unusual facts, defendant propounds a specious argument by claiming that the claim form was “offered into evidence for purpose of proving that appellant was without authority to possess the U.S. Treasury check at issue, and endorse the payee’s name.” Inferentially, defendant, though making no express argument or citing any authority, is claiming that “lack of authority” by a defendant to possess stolen mail matter is, under 18 U.S.C. § 1708, an element of the crime, actually a negative fact that allegedly must be proved by the Government. Although it is unclear exactly what defendant is arguing, apparently defendant is saying that he had been given the authority to possess the check by Mr. or Mrs. Harris and the Government had to negate this contention as part of its burden of proof.

However, “authority to possess” the check is not an element of the crime under 18 U.S.C. § 1708. The Government to sustain its burden of proof under 18 U.S.C. § 1708 must only establish “possession . . . [and] that the letter was stolen from the mails, and that the defendant knew the letter and its contents had been so stolen.” Allen v. United States, 387 F.2d 641, 642 (5th Cir. 1968). Whether the defendant had the “authority to possess” the mailed social security check would properly be a defense, not an element of the crime to be proved by the Government. The Government is not required to “negate every other possibility” concerning the defendant’s possession of the stolen mail. United States v. Mooney, 417 F.2d 936, 938 (8th Cir. 1969).

In this light, the Government’s use of the contested claim form was cumulative evidence to prove that defendant lacked the authority to possess the check. Mrs. Harris also testified that neither Mr. Harris nor she received the check on April 3, 1972, or authorized anyone to cash the check or receive its proceeds. The contested form corroborated Mrs. Harris’ testimony, which in itself was sufficient circumstantial evidence for an inference that the check was stolen from the mail. United States v. Mooney, supra at 938.

We think that, under the facts of this case, the admission of Richard Harris’ inadmissible hearsay statement was harmless error, since Mrs. Harris testified that neither Mr. Harris nor she received the social security check or authorized anyone to receive the proceeds, since Mrs. Harris was extensively cross-examined, and since the form was cumulative evidence corroborating Mrs. Harris’ testimony. No substantial right of the defendant was violated. United States v. Schroeder, 433 F.2d 846, 848 (8th Cir. 1970), cert, denied sub nom. Allen v. United States, 400 U.S. 1024, 91 S.Ct. 590, 27 L.Ed.2d 636 (1971); Fed. R.Crim.P. 52(a).

Further, the present case is similar to Ashley v. United States, 413 F.2d 249 (5th Cir. 1969), in which a police report, admitted into evidence, contained stolen juke boxes’ serial numbers learned from a third party. The court held that the admission of this hearsay statement concerning the serial numbers was not prejudicial to defendant’s rights, since other properly admitted business records sufficiently .corroborated the police report, removing “any taint of unreliability.” Ashley v. United States, supra, at 251. In this case, Mrs. Harris’ testimony established the elements of the crime, and the contested claim form was cumulative, circumstantial evidence to prove that the check was stolen from the mail. The defendant, also, makes no claim that there was insufficient evidence for the jury to convict him of the charged counts of possession and forgery. Similarly defendant’s rights have not been prejudiced.

The defendant also argues that the admission of the contested form violated his Sixth Amendment’s right “to be confronted with the witnesses against him.” The defendant admits that a violation of the hearsay rule does not necessarily mean that the Sixth Amendment’s right to confrontation has been violated. California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The main concern focused upon in Green in examining the right of confrontation under the Sixth Amendment was the necessity for the defendant to be able to cross-examine witnesses against him. Of course, we have held in this case that the defendant had an ample opportunity to cross-examine Mrs. Harris, who knew more about the form than her husband. In Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970), the Court held: Since the defendant cross-examined Mrs. Harris concerning her husband’s statement in the contested form and since Mrs. Harris obviously knew more about the family’s finances, the form, and the stolen check, we think that the admission of the form did not violate defendant’s Sixth Amendment’s right to confrontation.

“The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S. at 199, 90 S.Ct. at 1936.”

Judgment affirmed.

      . Although Mrs. Harris signed the form, the Government does not argue that the statement was also made by her. Evidently, the Government considers Mr. Harris tlie only out-of-court declarant.

      . Green reviewed Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) ; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.E'd.2d 255 (1968) ; and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968), in this light. California v. Green, supra 399 U.S. at 162-164, 90 S.Ct. 1930.


author: STEPHENSON, Circuit Judge. PER CURIAM:

text:
    Gary A. WELLNER, Appellee, v. MINNESOTA STATE JUNIOR COLLEGE BOARD, Appellant.
    No. 73-1131
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Oct. 23, 1973.
    Rehearing Denied Dec. 7,1973.

      Theodore N. May, Sp. Asst. Atty. Gen., St. Paul, Minn., for appellant.
    Clinton J. Hall, St. Paul, Minn., for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

Minnesota State Junior College Board (the Board) appeals following an adverse final order in a 42 U.S.C. § 1983 action brought against the Board by Gary A. Wellner, a nontenured faculty member of Metropolitan State Junior College (Metro). Wellner alleged that he was deprived of procedural due process since the Board did not afford him a hearing prior to its decision not to reappoint him as a Metro faculty member. The trial court in an unreported opinion, held that certain “racist” charges made against Wellner, which were placed in his file, and the attendant stigma involved in the Board’s failure to reappoint him constituted “a deprivation of his interest in liberty,” within the meaning of Board of Regents of State Colleges et al. v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sinder-mann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); and that Wellner therefore was entitled to a prior hearing.

The trial court determined at the time it rendered its order that “a hearing held now could not adequately reflect the actual circumstances surrounding the making of the racist charges against plaintiff and the decision not to reappoint him for the 1971-1972 year.” It therefore assessed back pay against the Board; ordered the Board to appoint Wellner at the beginning of the next quarter or semester to a position of equal rank, responsibility and salary to that which he held at Metro during the 1970-1971 academic year, but at a Minnesota State Junior College other than Metro because of the “tensions and problems which would result from him working there;” and further ordered the Board to expunge from its records all matter relating to Wellner’s “actions or attitudes-toward black people which indicate that he holds a bias or prejudice against ■ them.”

We affirm in part and reverse in part and remand this cause with directions.

In its opinion and order the trial court found: that Minnesota Stat.Ann. § 136.-62 (1967) authorizes Metro to appoint, reappoint and not reappoint nontenured faculty members without giving reasons or affording a hearing; that Dr. Robert W. Jensen, Metro’s president, appointed Wellner to the Metro faculty during the 1969-1970 academic year as a -physical education instructor and wrestling coach; that pursuant to the recommendation of the Faculty Review Committee (Committee), Dr. Jensen reappointed Wellner for the next academic year; that although Wellner applied for the position of permanent athletic director, Dean of Students, Dr. James P. Lund, appointed an outsider, Grover Garvin; that Well-ner was heavily burdened with extra work, which he was forced to assume in order to keep his job; that problems arose during the 1970-1971 academic year between Wellner and other faculty members, which triggered Dr. Lund to recommend to Dr. Jensen in writing that Wellner not be reappointed “because of ‘lack of cooperation and the ill feelings that have developed in the Athletic Department as a result of Mr. Wellner’s attitude and actions;’” that other anti-Wellner material was gathered by Dr. Lund and placed in Wellner’s file at Metro which charged Wellner with having a hatred toward blacks; that during the same period the Committee recommended to Dr. Jensen that Wellner be reappointed; that Dr. Lund in a memorandum to Dr. Jensen, recommended to the contrary; and that Dr. Jensen decided not to reappoint Wellner.

The trial court concluded that the accusations contained in the adverse mem-oranda were without foundation in fact, and that “[t]hey consist of conclusions and mental impressions which are readily explainable when one considers »that they were made at the direction of Dr. Lund” who was the superior of the authors of the memoranda. Insofar as the racist charges were concerned, the trial court found that there was no evidence of any kind to sustain or lend veracity to such charges. It determined that “[t]he evidence shows that the presence of the written racist charges in [Well-ner’s] file at Metro clearly reduces and diminishes his chances to obtain another teaching position since it is likely that his prospective employers will have access to such file.”

The principal question presented by this appeal is whether the record supports the trial court’s determination that Wellner had been deprived of an interest in liberty entitling him to a hearing pursuant to the dictates of Roth and Sinder-mann, supra.

In Harnett v. Ulett, 466 F.2d 113, 116 (8th Cir. 1972), we interpreted Roth as determining “that absent some sort of statutory tenure or contractual rights, a public employee has no interest cognizable at law necessitating due process protection unless a showing is made that the government conduct likely will . impose a stigma upon the employee that will foreclose future opportunities to practice his chosen profession.” Accord, Wilderman v. Nelson, 467 F.2d 1173, 1176 (8th Cir. 1972).

Both Roth and Sindermann subscribe to the view that although a person may have “no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.” Sindermann, supra, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). “ ‘[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.’ ” Roth, supra, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972).

This case was tried to the court sitting without a jury. The scope of our review is therefore limited to whether the findings made by the trial court are clearly erroneous. Fed.R.Civ. 52 (a); see Brown v. Scott, 454 F.2d 693, 694 (8th Cir. 1972). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Arkansas Ed. Ass’n v. Bd. of Ed., Portland Ark. Sch. Dist., 446 F.2d 763, 770 (8th Cir. 1971).

The record discloses that subsequent to its decision to recommend reappointment, the Faculty Review Committee received written anti-Wellner memoranda from Dr. Lund, together with written charges of racism from the Black Student Union. Additional material adverse to Wellner had been collected by Dr. Lund from Gar-vin and Gardner, along with a letter addressed to Lund from the Black Student Union Basketball Team, which contained more racist charges. Dr. Lund placed the material into Wellner’s activity file which ultimately came into Dr. Jensen’s custody. Despite this new information, the Committee adhered to its original recommendation. Dr. Jensen nevertheless refused to follow the Committee’s suggested action and informed Wellner in writing that he would not be reappointed. Dr. Jensen testified that Well-ner’s requested review of the decision was denied and that the decision would stand without a hearing.

Our examination of this record convinces us that no mistake has been made. See, United States v. United States Gypsum Co., supra, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). There is ample evidence to support the trial court’s finding that the presence of racist charges against Wellner were the principal cause of his non-reappointment and this deprived ' Wellner of an interest in liberty which entitled him to a prior hearing, despite his nontenured status.

We turn then to the nature of the trial court’s remedy. We agree with that portion of its order which in effect states that Wellner is entitled to receive the salary he would have received had he been reappointed, unless and until he is lawfully discharged. We also agree with that portion of the trial court’s order which directs the Board to expunge from its records all written matter which indicates that Wellner holds a bias or prejudice toward blacks. However, the trial court erred when it determined not to order a hearing and instead ordered the board to reappoint Wellner to a similar teaching position. As we noted earlier, the trial court reasoned that “a hearing held now could not adequately reflect the actual circumstances surrounding the making of the racist charges.”

We acknowledge that this latter point is troublesome. Nevertheless, we are governed by Roth and Sindermann which dictate that upon the requisite showing of deprivation of an interest in liberty the appropriate remedy is a hearing ordered by the trial court. That is, in such a case due process requires that a party be given notice of the charges against him and a reasonable chance to be heard. The Supreme Court in Roth, supra, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n. 12 observed:

“The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.”

We deem it inappropriate in this case to do more than follow the requirement. The trial court chose to go further and erred in so doing.

The final order of the trial court is therefore affirmed in part and reversed in part. We affirm that portion of the order requiring the Board to compensate Wellner for lost wages and to expunge from its records the material adverse to Wellner. We also affirm the assessment of costs against the Board, not including attorney’s fees. We reverse that portion of the order which directs Wellner to be reemployed. The cause is remanded to the trial court with directions to order an administrative hearing before the Board in accordance with due process requirements as noted in this opinion.

Affirmed in part; reversed in part and remanded with directions.

On Petition For Rehearing.

PER CURIAM:

Petition for rehearing is denied.

Wellner was improperly discharged because he was not accorded an appropriate hearing. His termination was therefore a nullity and he remains on the payroll until a proper hearing is held, at which time he may be retained or not reappointed. It is not within our province to speculate that after a proper hearing clearing his reputation the Board will recommend that Wellner not be reappointed, or that the appropriate official will not reappoint him to a similar teaching position. In any event, Wellner remains on the payroll and is entitled to receive the wages he will have earned until his name is cleared by proper Board action and the decision is properly made with respect to whether he will be reappointed. However, any award shall be reduced by interim earnings he may have derived from other employment.

      . The trial court noted that both parties agreed that the case -would be controlled by the Roth and Sindermann decisions. We therefore do not reach the question of the retrospective operation of those holdings. See generally, Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971).

      . The Board, of course, may terminate its liability for salary without employment by reinstatement.

      . The Board has made it clear that such material is not the basis for its appeal and would therefore be irrelevant in any subsequent hearing except as required by Wellner in clearing his name. The trial court’s remedy is justified by the potential of such material for future damage and the Board’s lack of procedure for removing it from Wellner’s file.


author: PER CURIAM:

text:
    Luis Sanchez PLAZOLA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No, 72-1855.
    United States Court of Appeals, Ninth Circuit.
    Jan. 24, 1973.
    Hearing En Banc Denied Oct. 31, 1973.

      Lewis A. Wenzell (argued), Matthew N. Lees, of Federal Defenders, San Diego, Cal., for petitioner-appellant.
    James W. Meyers, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Stephen W. Peterson, Asst. U. S. Attys., San Diego, Cal., for respondent-appellee.
    Before HUFSTEDLER, TRASK, and WALLACE, Circuit Judges.
   PER CURIAM:

Although the authority of United States v. King (9th Cir. 1970) 430 F.2d 1177 has been eroded, it is still the law of this Circuit. On the authority of King, the order denying Plazola’s petition in respect of his plea of guilty to 26 U.S.C. § 4755(a) is affirmed.

The order denying his petition in respect of his plea of guilty to 26 U.S.C. § 4744(a) is reversed: (Weber v. United States (1971) 402 U.S. 939, 91 S.Ct. 1633, 29 L.Ed.2d 107, vacating and remanding (9th Cir. 1970) 429 F.2d 148, and Castro v. United States (1971) 403 U.S. 903, 91 S.Ct. 2215, 29 L.Ed.2d 678, vacating and remanding (9th Cir. 1971) 436 F.2d 975.)

The district court is ordered to vacate the plea to section 4744(a) and to dismiss the count of the indictment charging appellant with violation of section 4744(a).

ON REQUEST FOR HEARING EN BANC

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNI-WAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, and WALLACE, Circuit Judges.

An active judge in service having requested a vote on hearing en banc, the judges in active service have voted on the request. A majority of the court has voted to deny en banc hearing, and en banc hearing is accordingly denied.

HUFSTEDLER, Circuit Judge, with whom Judge ELY concurs, dissenting from the denial of hearing en banc:

The majority of the court recognizes that Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, compels us to set aside Plazola’s plea of guilty to a violation of former 26 U.S.C. § 4744(a) (repealed October 27, 1970). Our court had previously attempted to limit Leary by holding that a guilty plea pursuant to a plea bargain entered prior to the decision in Leary constituted a valid waiver of a defendant’s right to assert his Fifth Amendment defense to a criminal prosecution. (See, e.g., United States v. Weber (9th Cir. 1970) 429 F.2d 148, vacated (1971) 402 U.S. 939, 91 S.Ct. 1633, 29 L.Ed.2d 107; Cochran v. United States (9th Cir. 1970) 432 F.2d 1356, vacated (1971) 402 U.S. 939, 91 S.Ct. 1634, 29 L.Ed.2d 107; Castro v. United States (9th Cir.) 436 F.2d 975, vacated (1971) 403 U.S. 903, 91 S.Ct. 2215, 29 L.Ed.2d 678.) The effort was decisively rejected by the Supreme Court when it vacated and remanded United States v. Weber, supra, Cochran v. United States, supra, and Castro v. United States, supra, “for reconsideration in light of this Court’s decisions in Leary v. United States, 395 U.S. 6 [89 S.Ct. 1532, 23 L.Ed.2d 57] (1969), and United States v. United States Coin & Currency, 401 U.S. 715 [91 S.Ct. 1041, 28 L.Ed.2d 434].” Because our opinion in Weber, followed in Cochran and Castro, discussed Leary and accepted its retroactivity, the major issue decided in United States Coin & Currency, the Supreme Court’s mandate to reconsider in the light of the cited cases necessarily means that, in holding that a guilty plea waived a defendant’s right to raise a Fifth Amendment defense to a section 4744(a) prosecution, we had not interpreted Leary correctly. (See Navarro v. United States (9th Cir. 1971) 449 F.2d 113, 114.)

The majority does not attempt to assert the indefensible position that Plazola’s guilty plea, which could not constitute a valid waiver of his right to assert a Fifth Amendment defense to an alleged violation of section 4744(a), was a waiver of his right to assert the defense to an alleged violation of former 26 U.S.C. § 4755(a)(1) (repealed October 27, 1970). The district court’s refusal to vacate the plea and to dismiss the count of the indictment charging Plazola with a violation of section 4755(a)(1) should be affirmed, therefore, only if there is a constitutionally significant difference between that section and section 4744(a), to which a timely assertion of the privilege against self-incrimination constitutes a complete defense. (Leary v. United States, supra.) Precisely that question was addressed in United States v. King (9th Cir. 1970) 430 F.2d 1177.

By adopting as its own the opinion of the district court (United States v. King (S.D.Cal.1969) 307 F.Supp. 217), the King panel held that section 4755(a) (l)’s proscription of importation of marihuana without registering as an importer and paying the tax specified by law was distinguishable from section 4744(a)’s requirement that a tax be paid on all transfers of marihuana. The district court reasoned that an importer who declares that he is bringing contraband marihuana into the United States will have his goods seized and destroyed at the border. By registering and declaring his marihuana, the importer has complied with section 4755(a)(1); and, since he no longer possesses the marihuana, he is immunized from federal or state criminal prosecution for related offenses. The court added that “[i]t is, as a practical matter, unthinkable that a state would attempt to prosecute any person for possesssion of marijuana if the possession were nothing more than a border station possession of declared marijuana.” (307 F.Supp. at 218.)

The factual and legal predicates for these conclusions are lacking. Plazola and King, like Leary, had ample reason to fear that information thus supplied to federal customs officials would be transmitted to federal and state officials, exposing each to a “ ‘real and appreciable’ risk of self-incrimination.” (Leary v. United States, supra, 395 U.S. at 16, 89 S.Ct. at 1537.) Even if the mari-

huana had been confiscated by customs officials, Plazola could have been prosecuted for an attempt to import marihuana into California, an offense punishable by at least five years imprisonment. (Cal. Health & Safety Code § 11360 (1973) (formerly Cal. Health & Safety Code § 11531).) Moreover, risk of prosecution for possession of marihuana following confiscation at the border was not “unthinkable.” California law makes no distinction between possession for brief and lengthy periods of time. (See Cal. Health & Safety Code § 11357 (1973) (formerly Cal. Health & Safety Code § 11530).) Indeed, California has successfully prosecuted a defendant for possessing contraband in California when his only possession within the state occurred while crossing a county highway between the international border with Mexico and a federal customs inspection station. (People v. Allen (4th Dist. 1959) 172 Cal.App.2d 520, 342 P.2d 368 (illegal possession of firearm). See also People v. Mendoza (4th Dist. 1967) 251 Cal.App.2d 835, 840, 60 Cal.Rptr. 5, 8.) In addition, Plazola’s declaration at the border would not have insulated him from a federal charge of conspiring to import marihuana without complying with the registration and taxing requirements (see former 21 U.S.C. § 176a (repealed October 27, 1970); 18 U.S.C. § 371) if, as could have been the case, a conspiracy offense had been completed before an attempted recantation at the border. Thus, the federally required declaration forced an importer like Plazola to identify himself as a member of a “selective group inherently suspect of criminal activities.” (Leary v. United States, supra, 395 U.S. at 18, 89 S.Ct. at 1539; Haynes v. United States (1968) 390 U.S. 85, 98, 88 S.Ct. 722, 19 L.Ed.2d 923.) Such a compelled declaration is a clear violation of the Fifth Amendment rights recognized by the Supreme Court in Marchetti v. United States (1968) 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States (1968) 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906; Haynes v. United States, supra; and Leary v. United States, supra.

An equally significant shortcoming of the King analysis is its failure to support the premise that once a registered importer declares his marihuana at the border, it will be deemed “contraband” and held for destruction unless the importer may lawfully possess the marihuana under state law. Former 21 U.S. C. § 173 (repealed October 27, 1970) made it unlawful to import any narcotic drug and also provided that any such drug imported into the United States could be seized and forfeited to the United States Government. But marihuana was not included within the definition of “narcotic drug” (see former 21 U.S.C. § 171(a) (repealed October 27, 1970); former 26 U.S.C. § 4731(a) (repealed October 27, 1970)). Former 21 U.S.C. § 176a, dealing expressly with marihuana, contained no forfeiture provision. No other section of the United States Code gives federal customs agents the authority to confiscate marihuana which was not imported into the United States by fraudulent means.

Leary and the Marchetti-Grosso-Haynes trilogy require that we recognize Plazola’s right to raise his Fifth Amendment privilege as a complete defense to this criminal prosecution under former section 4755(a)(1) for failure to register and pay the required importer’s tax. Accordingly, I would hear this case en banc, overrule King, and reverse the district court’s denial of the petition for writ of error coram nobis.

      . The Weber panel acknowledged that in Meadows v. United States (9th Cir. 1969) 420 F.2d 795, 797-798, we had refused to find that a guilty plea constituted a valid waiver of a defendant’s Fifth Amendment privilege if that privilege was based upon new law which could not have been anticipated at the time of the guilty plea. However, in addition to asserting that Brady v. United States (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, Parker v. North Carolina (1970) 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, and McMann v. Richardson (1970) 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, cast doubt on the continued validity of Meadows,' the Weber panel reasoned that the Leary result could have been anticipated after the Supreme Court decisions in Marchetti v. United States (1968) 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, Grosso v. United States (1968) 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, and Haynes v. United States (1968) 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923. Accordingly, a guilty plea entered pursuant to a idea bargain after the Marchetti-Grosso-IIaynes trilogy was held to constitute a knowing waiver of a defendant’s Fifth Amendment rights. (429 F.2d at 149-151.)

      . Section 4755(a)(1) provided: “Liability. • — -It shall be unlawful for any person required to register and pay the special tax under the provisions of section 4751 to 4753, inclusive, to import, manufacture, produce, compound, sell, deal in, dispense, distribute, prescribe, administer, or give away marihuana without having so registered and paid such tax.”