author: LEVENTHAL, Circuit Judge.

text:
    UNITED STATES of America v. Melvin L. GRADY, Appellant.
    No. 71-1377.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 10, 1972.
    Decided June 29, 1973.
    William W. Kramer, Washington, D. C. (appointed by this court), for appellant.
    Roger M. Adelman, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and Vincent R. Alto, Asst. U. S. Attys., were on the brief, for appellee.

      Before LEVENTHAL and WILKEY, Circuit Judges, and RONALD N. DAVIES, U. S. Senior District Judge for the District of North Dakota.

       Sitting by designation pursuant to 28 U.S. C. § 294(d) (1970).

   LEVENTHAL, Circuit Judge.

On this appeal from a conviction for second degree murder, we hold that the court erred in its failure to give an appropriate instruction on manslaughter advising the jury that in the event of a homicide resulting from a gross deviation from reasonable care the verdict should be manslaughter if the jury did not find malice beyond a reasonable doubt. The case is remanded for a' new trial unless the Government consents to, and the trial court determines it is in the interest of justice to enter, a judgment and sentence for manslaughter.

A. Facts

The pitiful victim of the homicide was Gretehen Grady, appellant’s three year old daughter. Her mother’s sister Valerie heard two thumps in the Grady bedroom, heard Gretehen yelling and crying, and assumed appellant was beating Gretehen, an occurrence she testified was common. Valerie did not investigate, her previous efforts to stop appellant’s beatings having proved futile.

However, her sister Eileen went to the Grady bedroom and found appellant holding Gretehen slightly off the ground and shaking her. He explained the child had been eating “rat poison.” She examined Gretchen’s mouth, found only baby powder, and asked why appellant was beating the child. Appellant told her to mind her own business.

Eileen left to feed her own baby, but returned shortly after on hearing a “thump.” This time she found Gretehen being held at the shoulders by appellant, crying and telling her Daddy: “Don’t hit me any more. Daddy, don’t be angry any more — I won’t do it no more.” Eileen asked appellant to stop, but she was again told to mind her own business and she returned to her room.

Within a couple of minutes, Eileen heard “two more thumps,” rushed into the room again and found Gretehen motionless on the floor, her eyes rolled back in her head, and blood trickling from her mouth. Eileen found appellant in another bedroom, and asked what was wrong. Appellant said Gretehen was lying on the floor, being stubborn. But when they found that she was unconscious, appellant picked Gretehen up, carried her to his room, tried to find smelling salts, arranged a cab and took his child to Children’s Hospital.

Appellant, aged 30, a veteran of 5 years honorable military service, testified he saw Gretehen eating baby powder and cautioned her not to do this, since it might harm her, shaking her for emphasis. When he released her, she fell backwards to the tile floor, arose and took a few steps and fell forward. He and his wife testified to his disciplining the child in terms of occasional spankings.

There was medical evidence that there was a possibility, remote, that the injury causing death was due to two falls, but the opinion of these experts focused as more likely that the subdural hematoma (collection of blood in the membrane of the brain) resulted from a sharp blow on the opposite (right) side of the skull, or the trauma of an intentional banging against the floor — as contrasted with a fall, with its “automatic check mechanisms to cushion her fall.”

B. Legal Issues

1. Evidence of other beatings

The court permitted the prosecutor to elicit from three witnessees testimony that appellant had previously beaten Gretehen with his 'fists, slammed her into the wall, and pushed her head down a toilet bowl. A particularly severe beating was administered eight months before the fatal occasion. We see no error. While evidence of other crimes is inadmissible merely to prove general disposition to commit crime, there are exceptions when evidence relates to a material element of the offense. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Here there was materiality on issues of intent, and malice, and absence of mistake or accident. United States v. Bobbitt, 146 U.S.App.D.C. 224, 450 F.2d 685 (1971).

2. Instructions

Defense trial counsel asked that the court refrain from an instruction on voluntary manslaughter (committed by one in the heat of passion, under the inducement of reasonable provocation). Defense counsel further requested that the court give an instruction on the lesser included offense of involuntary manslaughter. The prosecutor did not oppose this request. What the court did was to give an instruction on “manslaughter,” by reference to the elements of voluntary manslaughter, and on simple assault as a lesser included offense. Appellant claims there was error in the voluntary manslaughter charge as given. We do not pursue this question. It suffices for this case that we agree with his contention that the court erred in failing to give an instruction on involuntary manslaughter.

It is not necessary for present purposes to restate the discussion of the law of involuntary manslaughter set forth in United States v. Dixon, 135 U.S.App.D.C. 401, 403, 419 F.2d 288, 290 (concurring opinion) (1969), approved in Thomas v. United States, 136 U.S.App.D.C. 222, 224, 419 F.2d 1203, 1205 (1969); United States v. Dent, 155 U.S.App.D.C. 278, 477 F.2d 447 (1973). The Government’s position on appeal is that there was no evidentiary basis for a finding of involuntary manslaughter, and that the evidence of prior beatings show that Gretchen’s death “was not the result of an accident, but was intentional and malicious. . . . [Appellant’s] testimony would support a finding of negligence, but merely simple negligence, not the gross negligence which is an element of involuntary manslaughter.”

This reasoning does not suffice to support the trial court’s omission. For purposes of putting the defense theory of the case to the jury, defense counsel is entitled to instructions that differ from the testimony as given by both prosecution and defense witnesses, if they conform to how the jury might not unreasonably reconstruct the situation, e. g., accepting defendant’s testimony in part only. Belton v. United States, 127 U.S.App.D.C. 201, 206, 382 F.2d 150, 155 (1967); United States v. Comer, supra, note 1, 137 U.S.App.D.C. at 219, 421 F.2d at 1154.

Defense counsel was entitled to argue to the jury that in the light of instructions to be given by the court, they could convict of murder only if they found malice — either an intentional killing, or an implied malice, due to a wanton disregard of human life, dependent on a finding, beyond a reasonable doubt, that defendant was aware of a serious danger to life or serious bodily injury in his actions. In the absence of a finding of such awareness and implied malice (beyond a reasonable doubt) the jury should acquit if death resulted from defendant’s action only as an accident, or defendant’s action was simple negligence and not a gross deviation from a reasonable man’s conduct. And the jury should convict the defendant only of manslaughter if they found him guilty of reckless conduct creating an extreme danger of death or serious bodily injury by virtue of a gross deviation from the standard of care that a reasonable person would observe, even though the defendant was not aware of the risk. Arguments and instructions along these lines would focus on the difference in culpability between manslaughter, where responsibility rests on the defendant’s failure to perceive the risk of death or serious bodily injury to which he has subjected another, and murder based on “implied malice,” where the defendant has subjective awareness of grave risk, yet nevertheless proceeds in wanton disregard of the probable consequences.

As applied to the present case, the jury might well have concluded that the appellant’s beating of his child was not in a passion of hate and rage but in an intent to discipline that was carried to such unreasonable extremes as to involve a “gross deviation” and extreme risk of harm and death (possibly that appellant hit his child’s head on the floor). But the jury might not have made the inference, although it could have been warranted by the evidence, that there was' either intent to kill or awareness of the risk of death or serious bodily harm. Yet on the charge as given, the jury would have been unaware that manslaughter was an appropriate verdict, and might well have concluded that the case was more than simple assault, and that the instructions pointed to a murder verdict on a finding of implied malice based on endangering another by acts done recklessly (see note 3).

In accordance with our procedural jurisprudence, (see note 1) the judgment is vacated, and the case remanded with instructions to grant a new trial, unless the court determines, with consent of the Government, it is in the interest of justice to enter judgment on a verdict of manslaughter.

So ordered.

      . United States v. Comer, 137 U.S.App.D. C. 214, 220-221, 421 F.2d 1149, 1155-1156 (1970) ; United States v. Bryant, 137 U.S.App.D.C. 124, 132-133, 420 F.2d 1327, 1335-1336 (1969) ; Austin v. United States, 127 U.S.App.D.C. 180, 193-194, 382 F.2d 129, 142-143 (1967).

      . lie charged that “the offense of manslaughter required as an essential element that the defendant ‘injured the deceased in the heat of passion’ in response to “provocation . . . such as might naturally induce a reasonable man in the passion of the moment to lose control and permit acts on impulse and without reflection.”

      . Recently, Chief Judge Greene of the Superior Court has set forth that there is still another branch of the law of manslaughter — for a homicide committed in the course of a misdemeanor, presumably a misdemeanor involving some danger of injury. United States v. Owens, Supr.Ct. Crim. #8869-73, 101 Wash.Law Rep. 913 (May 25, 1973). We have no occasion to consider whether the prosecution, or appellant, could properly have obtained a manslaughter instruction on that theory. In any event, the effect would only have been to point toward a manslaughter verdict, and we hold that the trial court erred in another respect in failing to give a requested manslaughter instruction.

      . The trial judge did include “gross deviation” language in an instruction that discussed the defense based on a parent’s right to control the behavior of a child. This defense involved a claim of a lawful act. The court charged it was not available if the parent’s acts constituted a gross deviation from a reasonable man’s conduct, which of course is sound. The charge left it open to the jury to conclude that when gross deviation negatived the defense based on right to discipline, the verdict should be murder based on implied malice — which the basic murder instruction advised “may be inferred when the act imports danger to another and is done so recklessly and wantonly as to manifest depravity of mind and disregard for human life. In determining whether the unlawful act is done with malice you may infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly acted.” The instruction did not communicate to the jury that in the event of gross deviation the verdict should be manslaughter (assuming there was no awareness of the risk of death or serious bodily harm).


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge:

license: Public Domain

text:
    Robert ROBINSON, Appellant, v. Charles M. RODGERS et al.
    No. 71-1017.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 19, 1792.
    Decided June 29, 1973.
    Theodore A. Shmanda, Washington, D. C., with whom Ronald J. Wilson, Washington, D. C. (appointed by the District Court) was on the brief, for appellant.
    Barry W. Levine, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry, and Harvey S. Price, Asst. U. S. Attys., were on the brief for appellee.
    Before WRIGHT, McGOWAN and LEVENTHAL, Circuit Judges.
   LEVENTHAL, Circuit Judge:

This is an appeal from an order dismissing a habeas corpus petition. We dismiss the appeal on the ground that it has become moot, and that there is no occasion to invoke the public interest exception for important questions of recurring interest.

By a two-count indictment filed February 12, 1969, in Criminal Case No. 216-69, appellant was charged with violation of the federal narcotics laws, 26 U.S.C. § 4704 and 21 U.S.C. § 174. On June 10, 1970, District Judge Robinson ordered appellant civilly committed to the custody of the Surgeon General for a period not to exceed thirty-six months pursuant to Title I of the Narcotic Addict Rehabilitation Act of 1966 (NARA), 28 U.S.C. § 2902. The commitment being in lieu of prosecution, it was further ordered that the charges against appellant were to be held in abeyance.

Appellant was placed in the Clinical Research Center, Lexington, Kentucky, for treatment of his narcotic addiction. By letter to Judge Robinson dated September 11, 1970, Dr. Harold Conrad, Associate Director of the Division of Narcotic Addiction and Drug Abuse and Director of the Lexington facility (for the Surgeon General), requested termination of appellant’s NARA commitment since appellant had “proven unable to adjust to the program” and could “no longer be treated as a medical problem under Title I.” In accordance with the mandatory provisions of 28 U.S.C. § 2902(c), Judge Robinson on September 21, 1970, ordered that appellant’s commitment be terminated and that he be returned to the District of Columbia for further proceedings in regard to the abeyant criminal charges pending against him. Appellant was returned to the D.C. Jail.

On October 22, 1970, he filed, through counsel, a petition for a writ of habeas corpus, in which he alleged that he was denied due process of law by virtue of the procedure followed at the Lexington facility when his commitment was terminated, and prayed for reinstatement into the facility. On November 17, 1970, upon consideration both of appellant’s petition and the respondents’ return and answer to the rule to show cause, District Judge McGuire dismissed the petition. It is from that order dismissing the habeas corpus petition that the instant appeal is taken.

In the interim, however, to dispose of the reactivated charges against him in the pending criminal case, appellant on December 3, 1970, entered a plea of guilty before Judge Robinson to the misdemeanor of illegal possession of narcotics, 33 D.C.Code § 402. He was immediately released on his personal recognizance. On April 29, 1971, appellant was sentenced by Judge Robinson to a term of imprisonment of one year; execution of that sentence was suspended, and appellant was placed on probation for a period of four months. At the same time, upon oral motion by the Government, the indictment in Crim. No. 216-70 was dismissed.

It appears from the foregoing that the appeal has been rendered moot, at least under customary doctrines of mootness, by appellant’s plea of guilty, which meant he was no longer eligible for Title I commitment.

A commitment under Title I of NARA, by its own language, is a commitment in lieu of prosecution. Unlike Title II (18 U.S.C. §§ 4251-4255), it does not apply to those convicted under an indictment. Appellant pleaded guilty in Crim. No. 2143-70 to dispose of the indictment in Crim. No. 216-69. In so doing he became ineligible for Title I consideration: he could not be committed in lieu of prosecution.

Appellant argues that the appeal is not moot since he may have suffered adverse collateral consequences by virtue of his transfer from. Lexington to the District of Columbia Jail. The “collateral consequences” doctrine has wide scope for application in criminal cases. As the Supreme Court said in Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1969), a “criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed.” This is judicial recognition of the wide-ranging impact of a criminal conviction, in many more ways than are encompassed by the actual judgment and sentence. The collateral legal consequences doctrine applies even where the proceeding is said to be civil in nature, but embraces a determination that the person involved has engaged in anti-social activity or presents a danger to society. Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017 (1971). See also In re Ballay, 482 F.2d 648 (1973), holding that an appeal from an order for commitment of an allegedly mentally ill person in a hospital could be maintained, although the patient had subsequently been discharged, and that proof of mental illness and dangerousness in involuntary civil commitment proceedings must be beyond a reasonable doubt rather than by a preponderance of the evidence.

The collateral legal consequences doctrine is salutary, to avoid a withdrawal from the courts of governmental actions that have discernible and substantial consequences to the individual affected. This wholesome doctrine would be damaged if pushed to unsound extremes. While we do not say that a Surgeon General determination that an individual has proven unable to adjust to a NARA program is completely devoid of consequences other than those of the resulting transfer, we discern no legal consequences of the kind developed in Sibron and its progeny.

Appellant projects a prospect of mischievous consequences by saying that in view of the high rate of recidivism among narcotic addicts, he may again request or become eligible for NARA treatment, and in that case he will or may be haunted by the records in the files of the Surgeon General, the Attorney General and the District Court. This line of argument seems to us too speculative and remote to warrant retention of the appeal. The doctrines of common law mootness are available in the Federal courts, even in cases that are not moot in the constitutional sense, to decline decisions on matters where no legal consequences will be spawned by dismissal of the appeal. Alton & So. Ry. Co. v. International Ass’n of Mach. & A. W., 150 U.S.App.D.C. 36, 463 F.2d 872, 876 et seq. (1972).

A problem that would persevere for appellant, even on his theory, is that even if a declaratory judgment were provided, though not prayed in the habeas corpus petition, and it were ruled that the removal from NARA was invalid because procedurally defective, the underlying record of his actions and attitude at Lexington would remain. Appellant implicitly recognizes this in the reply brief, by adding on a reference to relief through expungement of records. But this is not a mere adjunct prayer automatically available if the transfer is invalid for procedural reasons, but a different and far more complex and sensitive claim for relief. We do not necessarily stand on procedural ceremony when there is an important interest to be served, but we discern none such in the case before us.

So far as the interest of appellant is concerned, if he is in earnest to cure his addiction he has available to him an application for consideration under local community treatment programs which may be more appropriate for his condition than NARA commitment. Even as to NARA, a one-time non-cooperation does not necessarily bind a subsequent appraisal, and the legislature and judiciary have recognized expanding treatment options available under NARA.

Expungement as an instrument of justice is another doctrine accorded latitude for appropriate cases, but its proper scope requires reflection and definition. If it is to be given application in the setting of this case, it had best be done in a proceeding brought against the officials responsible for the action taken, and brought in their venue.

Finally, we consider whether the appeal should be retained because the underlying issues relate to recurring questions of public importance. This, too, is a doctrine that embodies an exception of importance to the general mootness rule. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); In re Ballay, supra; Alton & So. Ry. v. International Ass’n of Mach. & A. W., supra; Friend v. United States, 128 U.S.App.D.C. 323, 388 F.2d 579 (1967). But we do not think it fairly applicable to the case before us.

The question on the merits that appellant seeks to have adjudicated in this case is whether the Constitution was violated in the procedure followed at the Lexington facility prior to the determination that appellant can no longer be treated as a medical problem, and the submission to the court that his Title I NARA commitment be terminated. Appellant claims this rests on certain assumptions of misconduct, particularly in certain incidents of September 10, 1970, which were referred to in the Public Health Service September 11, 1970 Memorandum for the record which accompanied the letter written to the court that day by Dr. Conrad. Appellant claims that as to these incidents he is entitled to a “due process type hearing,” that he was informed of Dr. Conrad’s decision to drop him from the NARA program after the decision had been made; that he was not notified of the charges in advance, and never provided an opportunity to be heard, to rebut the charges or to participate in any kind of hearing. The Government responds that appellant is in error in assuming that he was dropped from the program solely on the basis of the incidents of September 10, 1970; that his previous arrogant attitude and defiant behavior at the Center had been the subject of discussion between him and both the Center Staff and fellow residents; that appellant was well aware that his adjustment at the Center was substantially less than satisfactory and was causing concern to the responsible medical authorities in charge; that as to the September 10 incidents, appellant formally discussed his degree of participation with his fellow ward members and with his Unit Chief; that appellant neither' professed innocence nor asked to speak to Dr. Conrad; that several days elapsed prior to his departure from the Lexington facility, on September 22, 1970, during which appellant, though explicitly advised of the possibility of appeal and encouraged to seek local available legal aid, did nothing.

If it were necessary to resolve the divergences in these accounts, this court would remand for a hearing. But to the extent that the public interest is concerned with whether there is an ongoing procedure at the Lexington facility of the Public Health Service, it is satisfied by the filing by the Government, at the request of the court, of a supplementary memorandum describing the procedures in effect. That memorandum transmits a letter communication from Dr. Conrad to Government counsel, reproduced as Appendix A. This is not extra-record material received for purposes of resolution of the facts. We do not either find as a fact that these procedures are in existence, or determine their adequacy as a matter of law. We refer to this supplementary communication only as supportive of our conclusion that there is no general disposition at the facility to dispense with considerations of fairness to the patient. In general, the issue of procedural fairness must take into account the kinds of questions involved and the alternative available. If and when it becomes necessary to determine whether minimum fairness is satisfied, that can be done in the light of a focused proceeding that will air the problem fully. The representation made to the court is sufficient, we think, to make it clear that the public interest does not now demand enlargement of this proceeding to embrace a prayer for expungement on records.

Appeal dismissed.

APPENDIX A

Department of Health, Education, and Welfare

Public Health Service Health Services and Mental Health Administration June 20, 1972

Barry Levine, Asst. U. S. Attorney Criminal Division, U. S. Court House Constitution & 3rd. Street, N.W. Washington, D.C. 20001

Dear Mr. Levine;

Enclosed are statements from each of our four separate treatment units here at the Clinical Research Center which outline the procedures which they utilize prior to recommending to the courts that a NARA patient be dropped from the civil commitment program.

Each treatment unit is organized as a therapeutic community, and in this type of setting if any error is made it is made in the direction of over-communication, with multiple meetings, group therapy sessions, confrontation sessions, “town hall” sessions, etc., going on throughout each week.

To my knowledge, patients are not ordinarily recommended for discharge from the NARA program on the basis of a single incident, although this is theoretically possible; the usual course of events is a long series of situations during which the patient has demonstrated repeatedly in many different settings on the unit that he himself is not only grossly lacking in motivation but that he also represents a real threat to the integrity of the treatment unit, thus jeopardizing the meaningfulness of the program to his fellow residents.

I myself personally review the recommendations of the treatment unit prior to approving them and forwarding them to the courts. In complicated cases this review may take the form of conferences with the unit staff, discussions with the Chiefs of all the units, and, if requested, meeting with the involved patients. Every case, however, does not necessarily involve all of these actions.

. In addition, every patient in the program here has regular free access to legal aid provided by the senior law students and faculty of the University of Kentucky College of Law. Further, a public telephone is available for any resident who wishes to make a long distance call, outgoing mail is not censored in any form, and incoming mail is not censored in content but only opened to detect possible contraband material.

It is our feeling, therefore, that we do give detailed consideration to the rights of all patients in the treatment program, and that, to the best of our knowledge, we do not deny anyone an opportunity for due process.

If I can be of any further assistance to you in this regard or if there are any questions I have left unanswered please do not hesitate to contact me.

Sincerely,

Harold T. Conrad, M.D.

Chief

Clinical Research Center

P.S.

Although the attached memoranda reflect current practices at the Clinical Research Center, they do not reflect procedural methods significantly different from those in effect at the time of Mr. Robinson’s case. The Center has always held that the introduction of contraband, physical violence and threats of physical violence were violations of “cardinal rules” which would in all probability lead to a recommendation for dismissal. The same opportunities for indepth discussions with both other patients and staff members at several levels of authority were also present at the time of Mr. Robinson’s difficulties.

      . Prior to the imposition of sentence appellant had already spent more than one year in custody, thus exceeding the maximum term of imprisonment which could be meted for the misdemeanor to which he pleaded guilty. Consequently, appellant was entitled to credit for the time he had served in confinement. 18 U.S.C. § 3568; 28 U.S.C. § 2903(d).

      . In addition, having been placed on probation, appellant is specifically excluded from tbe scope of Title I. 28 U.S.C. § 2901(g) (3).

      . See United States v. Raymond Moore, Slip Opinion No. 71-1252 (D.C.Cir. May 14, 1973) at 132 ff. (Opinion of Judge Leventhal, Part Y, concurred in by Chief Judge Bazelon and Judge McGowan).

      . Id. at pp. 65 et seq., 72 et seq., 132T et seq.

      . Peters v. Hobby, 349 U.S. 331, 348-349, 75 S.Ct. 790, 99 L.Ed. 1129 (1955) ; Sullivan v. Murphy, 155 U.S.App.D.C. 28, 478 F.2d 938 (1973) at 53 ff? Newell v. Ignatius, 132 U.S.App.D.C. 252, 407 F.2d 715 (1969), The history of Newell is discussed in Finley v. Hampton, 154 U.S.App.D.C. 50, 473 F.2d 180, 187-188 (1972).

      . Appellant’s habeas corpus action was brought against Mr. Rodgers, Superintendent of Jail, as the person holding him in custody, see 28 U.S.C. § 2242. Appellant also named Dr. Conrad as a defendant. The Government argues that this was improper, but we hesitate, at least on first reflection, to follow this path, for naming Dr. Conrad as a party, even though he had no present custody, at least had the virtue of naming the official claimed to have undertaken the “illegal” action that resulted in the unlawful custody. Compare Northeast Constr. Co. v. Romney, 485 F.2d 752, at 760-762 (1973). However, we need not refine this procedural point, or possible problems of jurisdiction over the person and venue. In any event, this was clearly not brought as a case for expungement of records.


author: DANAHER, Senior Circuit Judge: WRIGHT, Circuit Judge

text:
    Gerald Brent FAGAN, Appellant, v. NATIONAL CASH REGISTER COMPANY, Appellee.
    No. 71-1243.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 20, 1972.
    Decided June 29, 1973.
    Rehearing Denied Aug 21, 1973.

      Thomas 0. Mann, Washington, D. C., with whom Ben Paul Noble, Washington, D. C., was on the brief, for appellant. Henry Schoenfeld, Washington, D. C. , also entered an appearance for appellant.
    Thomas C. Green, Washington, D. C., with whom David G. Bress, Washington, D. C., was on the brief, for appellee.
    Charles L. Reischel, Atty., E. E. O. C., with whom Julia P. Cooper, Chief Appellate Section, E. E. O. C., Washington, D. C., was on the brief, for Equal Employment Opportunity and amicus curiae urging reversal. Robert Fitzpatrick, Washington, D.C., also entered an appearance for E. E. O. C., as amicus curiae.
    Before DANAHER, Senior Circuit Judge, and WRIGHT, and WILKEY, Circuit Judges.
   DANAHER, Senior Circuit Judge:

This appellant in the district court had alleged that he was the victim of unlawful sex discrimination within the purview of 42 U.S.C. § 2000e-2(a). After a hearing, the district court on March 30, 1971, dismissed the complaint as failing to state a claim entitling the appellant to relief and, therefore, did not reach the appellant’s motion for a temporary restraining order. We affirm.

The appellant had submitted on affidavit attached to his complaint: That I wear my hair long, that is below the ears and below the collar in the back and styled in the vogue and fashion of the times in projection of my image of self and consistent with my consciousness of my peer group.

The appellant was quite aware that, many months before, his employer had issued grooming regulations which, as to employees in its Technical Service Department, applied to haircuts, sideburns, mustaches, beards, suits, shirts, ties and shoes. The section dealing with “Haircuts” provided:

Hair will be neatly trimmed and combed. The length of the hair will taper down the back of the head and terminate above the collar. This eliminates any appearance of long hair.

The appellant’s affidavit was countered, in support of the appellee’s motion to dismiss, by the affidavit of one Richard Paugh, Manager of the Technical Services Branch of the National Cash Register Company which as we now paraphrase it sets out that Fagan, trained at company expense, had been in the employ of the company since March 1967, had worked in Paugh’s department since January, 1969, that Fagan’s duties included “visiting the offices of customers of National Cash Register, particularly banks, for the purpose of service and repair of National Cash Register equipment, including bank proof machines, accounting machines, cash registers, adding machines and the like.”

The employer in October, 1969, had received complaints from customers regarding the careless grooming of some company representatives, the Paugh affidavit continued. The employer’s policy statement noted the company’s receipt of comments from customers “regarding the extreme manner of dress and carelessness in grooming” which had been observed respecting some employees. “We must do everything we can to create a favorable impression on our customers and prospects. We simply cannot afford to have our employees do otherwise by their personal appearance.”

The employer’s policy statement of 1969 was followed in April, 1970, by the adoption of the standards of grooming above noted. In December, 1970, the appellant was told by a superior that his hair style failed to conform to the company’s requirement respecting its length. He was shown, and he also read, the outline of the company’s position, and was then told to cut his hair or not to return to work the following Monday. He had his hair cut.

On March 22, 1971, the appellant was again told to conform to the com-' pany’s position or not to return to work the next day. Following a conference on March 24, 1971, when the company’s memorandum of April, 1970, was again read to him, the appellant telephoned to his attorney from the meeting, and the instant case was filed on March 24, 1971. The following day, March 25, 1971, the appellant met in the Technical Service Department with various officials and was told that he was suspended.

There are some 100 technical service employees in the Washington metropolitan area of whom none are women although there are no restrictions on the employment of both sexes.

So read the Paugh affidavit in substance.

The appellant now argues that the aid of a federal court is his right; indeed he claims he should prevail as a matter of law, and he has moved that summary judgment be entered in his favor. Moreover, he has told us on brief that there is no issue of material fact. Thus, he submits, he is entitled to judgment as he relies upon 42 U.S.C. §§ 1981, 1983, 2000e-2(a) and on the First, Ninth and Fourteenth Amendments to the Constitution of the United States.

I

Fagan here has insisted upon his claim of right to wear his hair in a self-determined manner, indeed he contends that his employer’s action constitutes an invasion of “liberties and privacy.” To support his position he has cited to.us various cases where some courts have stricken as invalid school board rules prescribing unacceptable hair length for students. Some of such cases have been based upon equal protection grounds, others have viewed “long hair” proscription as a denial of due process. Yet others have purported to see a deprivation of rights within the ambit of 42 U.S.C. § 1983.

On the other hand, in yet other cases, no constitutional deprivation has been perceived, and no “rights” have been recognized as requiring or even as justifying the interposition of federal courts.

After the District Court in Karr v. Schmidt, 320 F.Supp. 728 (W.D.Tex. 1970), ruled that the local standard hair length regulation violated the due process and equal protection clauses, its judgment was stayed and Justice Black refused to vacate the stay. His memorandum, 401 U.S. 1201, 1202, 91 S.Ct. 592, 27 L.Ed.2d 797 (1971), reflected his view that the federal courts have no constitutional power to interfere with regulations promulgated by a public school system. The Fifth Circuit, en banc, 1972, 460 F.2d 609, not only reversed the District Court, but announced a per se rule directing the district courts thereafter to dismiss, forthwith, for failure to state a valid claim, a complaint which “merely alleges the constitutional invalidity of a high school hair and grooming regulation.”

A variant was next considered in Landsdale v. Tyler Jr. College, 470 F.2d 659, where the Fifth Circuit again sat en banc. The Court’s opinion, October 4, 1972, noted that the college was a public institution of the State of Texas, to be sure, but distinguished the Karr holding since the State’s right by regulation to intrude upon a personal liberty to wear long hair “stops at the college gate.” The student is not required to go to college, but until that departure, the State was bound to educate him through high school. The numerous dissenting expressions reiterate previous views.

Chief Judge Brown, concurring in the majority Landsdale opinion, not only cited Judge Tuttle’s memorandum in Sherling, supra, note 7, but emphasized Judge Wisdom’s dissent in Karr, 460 F.2d at 619. There, after a bow in the direction of Mr. Justice Black’s position, 401 U.S. 1201, 1202, 91 S.Ct. 592, 27 L.Ed.2d 797, supra, Judge Wisdom in note 1, expressed himself as “still unwilling to ascribe a similar view to the Supreme Court as a whole.”

Whatever significance any of us ever may be wont to attach to the denial of certiorari, the Supreme Court “as a whole” denied certiorari as of November 6, 1972 in Karr v. Schmidt, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256. By that time Karr, Landsdale, Sherling, Freeman, Olff, Jackson (see cases cited in note 6, supra) had been available to the Court. Only Mr. Justice Douglas had voted to grant certiorari, indeed it is clear from the cases cited in notes 5 and 6, supra, that a petitioner for cert, in these hair situations was to get nowhere — whether he had prevailed in the lower courts or not.

We may fairly assume this much, it would appear, the Supreme Court sees no federal question in this area. We are persuaded that the only basis upon which Fagan might predicate a claim must stem from 42 U.S.C. § 2000e-2(a) (1) and (2) to which we now turn.

II

Basically, throughout, the gravamen of Fagan’s position has been that his employer unlawfully had discriminated against him because of his sex. Accordingly as a matter of convenience, we set out the pertinent portion of 42 U.S. C. § 2000e-2, Unlawful employment practices — Employer practices

(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit,’ segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s . . . sex

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Court found itself confronted with a question of first impression. It then explained at 429-430, 91 S.Ct. at 853:

The objective of Congress in the enactment of Title VII is plain from, the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. (Emphasis added.)

The Court then at 431, 91 S.Ct. at 853 again emphasized:

Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed, (Emphasis added.)

True, the Court in Griggs was considering the problem of discrimination on the basis of a racial classification. However, what was there seen to be the Congressional purpose was merely an extension of what had been said succinctly in Phillips v. Martin Marietta Corporation, 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971), vacating Phillips v. Martin Marietta Corporation (5 Cir. 1969), 416 F.2d 1257. The Supreme Court after noting that persons of like qualifications must be given employment opportunities, irrespective of their sex, found error in the lower court’s permitting one hiring policy for women and another for men, each having pre-school age children

Random sampling of the views of various courts of appeals and district courts yields the consistently stated principle, as in Martin Marietta, supra, that women are to be afforded job opportunities on an equal footing with men. For example, a weight-lifting qualification discriminated against women on the ground of sex where no such barrier was erected against male employees. Bowe v. Colgate-Palmolive Company (7 Cir. 1969), 416 F.2d 711. In Weeks v. Southern Bell Telephone & Telegraph Company (5 Cir. 1969), 408 F.2d 228, the plaintiff-appellant was denied a switchman’s job because she was a woman. Schaeffer v. San Diego Yellow Cabs, Inc. (9 Cir. 1972), 462 F.2d 1002, found discrimination against women where men could work a nine-hour day but women were limited to an eight-hour stint. La Fleur v. Cleveland Board of Education (6 Cir. 1972), 465 F.2d 1184, saw invidious discrimination based on sex because of enforced maternity leave without pay. The Fifth Circuit in 1971 saw sex discrimination in Danner v. Phillips Petroleum Company, 447 F.2d 159, where women were excluded from achieving seniority rights which were awarded to males, and where, indeed, this otherwise qualified plaintiff-appellant was laid off and her job was given to a man. Even in advertising for help, exclusion of opportunity for one sex created unacceptable discrimination against the other, the court found in Hailes v. United Air Lines (5 Cir. 1972), 464 F.2d 1006. Sex differentials in opportunities for earning overtime pay engaged the court in Hays v. Potlatch Forests, Inc. (8 Cir. 1972), 465 F.2d 1081, where women, but not men, working overtime were to receive time and a half, thus discriminating against male employees. Sprogis v. United Air Lines, Inc. (7 Cir. 1961), 444 F.2d 1194, considered the employer’s no-marriage policy as applied to stewardesses where no such rule obtained against males. The majority found discrimination on the ground of sex over the critical dissent of Judge Stevens, 444 F.2d at 1202-1206, cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971). Diaz v. Pan American World Airways, Inc. (5 Cir. 1971), 442 F.2d 385, involved sex discrimination against a man who sought the position of flight cabin attendant where company hiring terms had restricted such opportunities to females.

It would seem inescapable that Congress was saying that job opportunities must be opened, remain open, and not be denied or terminated because of race, color, religion, sex or national origin. The language is plain, and as here considered means that men and women so far as jobs are concerned must receive equal treatment and not be the objects of discrimination on the ground of sex. Thus speaks the Act and so spoke Judge Hamley in Rosenfeld v. Southern Pacific Company, note 12, supra, at 1223:

Southern Pacific’s employment policy under which, for example, it has denied Mrs. Rosenfeld an employment assignment on the ground that women, considered generically, are not physically or biologically suited for such work, results in distinguishing employees, thus discriminating against some because of sex, within the meaning of subsection (1) of this provision. It also constitutes a limitation upon, segregation of, or classification of the company’s employees in a way which would deprive or tend to deprive an individual of employment opportunities because of such individual’s sex, within the meaning of subsection (2) of the quoted section.

The cases we have cited here in Part II clearly demonstrate how the courts have appraised the Congressional purpose to establish that persons of like qualifications are to be given employment opportunities irrespective of their sex. Certainly on our record there is no evidence of discrimination against women.

Ill

At this point we may note that in support of appellant’s claim of aggrievement, his affidavit as submitted to EEOC, continued:

. That the company has a policy against males wearing hair long and styled in the manner mine is and has no such policy with reference to the manner and mode that women employees must wear their hair . and I am informed most recently that unless I have my hair cut to conform to store policy before Thursday, March 25th, 1971, I will be discharged from my employment for failure to comply with company policy.

Appellant thus would predicate his claim of discrimination because of sex for he then refused to cut his hair and his employment was terminated.

Unlike discriminatory situations which arose in cases cited in Part II, supra, no woman here complained of the company’s policy. There is no suggestion that any woman had ever sought or had been denied employment in the Technical Service Department. There were no company restrictions on the employment of both sexes. Clearly Fagan had not been denied employment because he was a male, indeed he had been an employee of the company since 1969, and prior to the March episode, he had brought himself into compliance with company policy. The Paugh affidavit further reveals that in the Washington Metropolitan area there are about one hundred technical service employees like Fagan whose duties included visiting the offices of the company’s customers, particularly banks, for the purpose of service and repair of company equipment, adding machines, cash registers and the like.

If while engaged in company service Fagan had been required to wear a company prescribed uniform, there could be no valid claim of discrimination on the ground of sex.

We have then a situation where a male was indeed employed, and with full knowledge of the company’s policy, insisted upon performing his work on his own terms and upon requiring the company to accommodate to his projection of his own image. He claimed the “right” to wear his hair “styled in my personal projection or image in the development of my personality.” He admitted on affidavit that “If I would get my hair cut I could come back . to work the next morning.” In last analysis, we read his claim not as a challenge to the right of the employer to require Fagan to wear his hair in a shorter style but as urging that in order for the company legally to do so, it must require women to conform to the grooming style applicable to males, even though there are no women employees here involved.

We are quite aware that completely sincere and earnest jurists may differ from others of equal competence in their appraisal of legal issues and the conclusions deemed essential to their resolution. Hair-length cases in the private sector are no less a problem than the “State” eases treated in Part I, supm. Courts in the very area under consideration have varied in their approach.

For example, Rafford v. Randle Eastern Ambulance Service, Inc., 348 F.Supp. 316 (D.Fla., Miami Div., 1972), taught us that there was no discrimination based on sex where men refused to shave their beards. The employer had prescribed no policy concerning the length of hair for either men or women, and the plaintiffs had never been disciplined or discriminated against because of their hair length or because of sex. The employer, it was decided, may not apply a standard to one sex which varies from that applicable to the other. The district judge noted that beards are a special male characteristic.

The court saw the problem in terms of Section 2000e-2(e) in Donohue v. Shoe Corporation of America, 337 F.Supp. 1357, 1359 (Cal.C.D.1972). The employer there had not pleaded or established the defense of a “bona, fide occupational qualification” where the plaintiff, a shoe salesman in contact with the public, was discharged for wearing long hair although women were allowed to do so. Since there was a hiring or retention standard applicable to one sex and not to the other, the employer’s motion to dismiss was denied.

Earlier we could have seen Roberts v. General Mills, Inc., 337 F.Supp. 1055 (N.D.Ohio W.D.1971), where the operator of a food-processing plant had classified its employees, requiring that men wear hats while women were permitted to wear hairnets. Thus the Act was said to have been violated since the company would not allow Roberts to grow his hair as long as that worn by women in the same department. Roberts wanted to wear a hairnet.

Aros v. McDonnell Douglas Corporation, 348 F.Supp. 661 (C.D.Cal.1972), found that three employees had been terminated because their jobs were phased out. Their casual dress, their ill-groomed hair, failure to report on time and other grounds for possible employer dissatisfaction did not deter discussion to the effect that where an employee-grooming code for males differed from that prescribed for females, a discrimination based on sex could be seen. Realizing that an employer has “every right” to adopt dress codes suitable to various job categories, the opinion read that a particular code must apply equally to everyone.

On the other hand, we see a differing point of view in Baker v. California Land Title Company, 349 F.Supp. 235, 237-238 (C.D.Cal.1972). Making some sense as to claimed discrimination “because of sex” the court referred to the meager legislative history of the “sex” amendment. Then the opinion explained the real purpose of the language. Congress sought to establish equal occupational opportunities, an equal right to available employment, equal pay for equal work and equal working conditions. It was not planned that the Act was “[to] be used to interfere in the promulgation and enforcement of the general rules of employment, deemed essential by an employer, where the direct or indirect economic effect upon the employee was nominal or non-existent.” Specifically rejecting Donohue v. Shoe Corporation of America, supra, the judge said the Act was never intended to permit an employee to set in motion either federal or state employment machinery “merely because he wishes to wear his hair longer than the company rules prescribe.”

A bit closer to home, we now turn to Boyce v. Safeway Stores, Inc., 351 F.Supp. 402 (D.D.C.1972). There finding that “no substantive issue is presented,” Judge Gesell granted summary judgment for the defendant. There were grooming standards for female employees as well as for males. It was not unreasonable for an employer to expect differences in grooming between men and women, it was observed. The judge found no sex-based discrimination where a male food clerk was discharged because his head and facial hair failed to conform to the employer’s grooming standards applicable to male employees having regular contact with the public. Obviously aware of the incongruity of the argument advanced before him, the judge took account of Diaz v. Pan American Airways, Inc., Phillips v. Martin Marietta Corporation and Griggs v. Duke Power Co. (all treated in our Part II, supra). He commented, correctly we think, that the courts in those cases struck down “outmoded and unjustifiable sex stereotypes . . . [which] had distinct employment opportunity disadvantages for one sex.” He noted that Safeway had

sought to establish a clear and concise written rule for the grooming of its public-contact employees, male and female, so that those employees will be protected from arbitrary and unreviewable decisions by individual store managers.
* * •» * * *
We quote further:
Congress by this Act did not give the federal courts the task of deciding whether hair at the collar level or one-half inch below is a bona fide occupational qualification. Such a suggestion is absurd; such a task borders on the non-justiciable. Safeway’s grooming code is not arbitrary, and for its public-contact employees, serving as its only sales force, such a reasonable code is a bona fide occupational qualification.

Judge Gesell found no unlawful discrimination because of sex.

Substantially similar treatment to the problem was accorded by Judge Bootle in Willingham v. Macon Telegraph Publishing Company, 352 F.Supp. 1018 (Georgia M.D.1972) (appeal pending). There, it was observed:

What the defendant does require is that plaintiff conform to standards of appearance which the defendant feels are necessary to the conduct of his business. It is not unreasonable for an employer to expect differences in grooming between men and women— and such expectations are not indicative of sexual treatment.

Judge Bootle saw the plaintiff’s argument as calling for an expansion of the Act far beyond what must have been the purpose of its enactment. Tracing out what might be the end result of plaintiff’s argument, the Judge commented that

it must logically follow that men, if they choose, could not be prevented by the employer from wearing dresses to work if the employer permitted women to wear dresses . . . [which] would discriminate against the rights of men, and such discrimination would be present in the same manner as it would be present when men are prohibited by employers from wearing long hair.

We may well subscribe to Judge Bootle’s view that

employers, like employees, have rights. This court, without a far more certain mandate from Congress than that contained in Title VII, will not be party to what it considers a ridiculous, unwarranted encroachment on a fundamental right of employers, i. e., the right to prescribe reasonable grooming standards which take cognizance of societal mores.

Sustaining the employer’s motion for summary judgment dismissing the action, the Judge concluded:

Clearly [he] has the right to wear his hair as he pleases, but correspondingly, the defendant has the right to expect its employees to groom and conduct themselves in such a way as to promote the best interest of its business.

We find ourselves persuaded by the reasoning and the treatment to be seen in Baker v. California Land Title Company, supra, Boyce v. Safeway Stores, Inc., supra, and Willingham v. Macon Telegraph Publishing Company, supra, and comment further in light of the record in this case where the appellant has insisted he is entitled to judgment as a matter of law.

Perhaps no facet of business life is more important than a company’s place in public estimation. That the image created by its employees dealing with the public when on company assignment affects its relations is so well known that we may take judicial notice of an employer’s proper desire to achieve favorable acceptance. Good grooming regulations reflect a company’s policy in our highly competitive business environment. Reasonable requirements in furtherance of that policy are an aspect of managerial responsibility. Congress has said that no exercise of that responsibility may result in discriminatory deprivation of equal opportunity because of immutable race, national origin, color, or sex classification.

So to say is a far cry from a conclusion that the length of one’s hair is either constitutionally or statutorily protected. More remotely is it to be discerned as discrimination because of sex, when employees’ hair length fails to conform to an employer’s reasonable requirements, designed to further the company’s legitimate interests. Clearly there are “societal as well as personal interests” so involved in providing equal opportunities for citizens, that an employer is not to be permitted under the Act to discriminate because of grounds “resulting from forces beyond [the employees’] control.” Discrimination on such grounds is not to be “allowed to work a cumulative and invidious burden upon such citizens for the remainder of their lives.”

But equally it seems obvious to us, that one seeking an employment opportunity as in our situation where hair length readily can be changed, may be required to conform to reasonable grooming standards designed to further the employing company’s interest by which that very opportunity is provided. There is no suggestion that the company regulation is pretextual or that it has been derived otherwise than in complete good faith.

IV

The appellant has cited to us the Commission’s decision in EEOC ease No. 1/AU9-545 where the Commission concluded that the employer had acted in violation of Title VII of the Act by refusing to hire, because of his sex, a male production worker with shoulder-length hair, and otherwise by refusing to hire females as production workers because of their sex, and by maintaining a height requirement which discriminates against females as a class because of their sex and Spanish surnamed American males as a class because of their national origin. It has been argued that the agency decision is entitled to “great deference” citing us to Griggs v. Duke Power Co., supra, 401 U.S. where at 433-434, 91 S.Ct. 849 the Court was discussing the Commission’s interpretation of Section 703(h) of the Act. The Court had already perceived the Congressional purpose to eliminate discrimination because of race noting that what Congress sought was “plain from the language of the statute.” Id. at 429, 91 S.Ct. at 853. Then the Court at 434, 91 S.Ct. at 855 explained its having accorded deference to the Commission’s interpretation thus:

Since the Act and its legislative history support the Commission’s construction, this affords good reason to treat the guidelines as expressing the will of Congress.

Here, neither the Act nor its legislative history even remotely predicated an instance of discrimination “because of sex” on the length of an employee’s hair worn in contravention of the employer’s good grooming regulations. Courts

“are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839.

We find ourselves quite unwilling, respecting the male’s long hair aspect, to accept as discrimination because of sex the Commission’s decision, above cited, as based upon its own expanded reading of the statute and not comporting with the repeatedly declared objectives which Congress sought to achieve.

Our respected colleague points to Section 703(a) of the Act as interpreted by Mr. Justice Marshall in Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 et seq., 91 S.Ct. 496, 27 L.Ed.2d 613 (1971). Mr. Justice Marshall would adopt the guidelines and regulations as promulgated by EEOC. He alone rejected the majority ruling. He thought his colleagues had fallen into a trap. He thought an employer can require his employees, both men and women, to meet minimum performance standards and can even require parents to provide for the care of their children “so that job performance is not interfered with.”

What the majority held was that persons of like qualifications are to be given employment opportunities irrespective of their sex. The majority said that the condition of the hiring policy there under consideration might be met under the circumstances outlined in 42 U.S.C. § 2000e-2(e). Thus evidence could be received to show that a bona fide occupational qualification is “reasonably necessary to the normal operation of that particular business or enterprise.” (Emphasis added).

So it was that the majority remanded since the record was not adequate “for resolution of these important issues.” Id. at 544, 91 S.Ct. at 498.

Here we face no such problem. Fagan has insisted that there are no issues of material fact. The Paugh affidavit was before the district judge as was Fagan’s affidavit in support of his position. The district judge was satisfied that on this record the employer had established the basis for its reasonable requirement that its grooming standards be complied with. It was thereupon concluded that Fagan had failed to state a claim upon which relief can be granted and the complaint was dismissed accordingly. We think he reached a right result but the judgment will be modified that the basis may correctly appear. Affirmed.

WRIGHT, Circuit Judge

(dissenting):

The Supreme Court has made clear that Section 703(a) of the Civil Rights Act of 1964 prohibits “one hiring policy for women and another for men.” Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971). By passing Section 703(a) “Congress intended to prevent employers from refusing ‘to hire an individual based on stereotyped characterizations of the sexes.’ ” Id. at 545, 91 S.Ct. at 498. (Mr. Justice Marshall concurring). Thus the question presented by this case is simply whether appellee’s “no long hair for male employees only” policy “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e) (1970). This exception to the prohibition in Section 703(a) against sex discrimination in employment is “applicable only to job situations that require specific physical characteristics necessarily possessed by only one sex.” Phillips, supra, at 545-546, 91 S.Ct. at 498 (Marshall, J., concurring). And the burden of proof is on the employer. Id. at 544, 91 S.Ct. 496.

Here the District Court granted appellee’s motion to dismiss without even hearing evidence as to whether its admittedly discriminatory long hair policy was a “bona fide occupational qualification” under the Act. Under the circumstances, as in Phillips, I would reverse and remand to the District Court to give appellee the opportunity to prove, if it can, that its policy comes within the exception provided in Section 703(e) of the Act. See Willingham v. Macon Telegraph Publishing Co., 5 Cir., 482 F.2d 535 (decided June 28, 1973); Donohue v. Shoe Corp. of America, C.D.Cal., 337 F.Supp. 1357 (1972).

I respectfully dissent.

      . Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

      . We have no doubt of this appellant’s right to wear his hair at any length in projection of his image of himself and consistently with his “consciousness” of his “peer group.” That same right undoubtedly would include his wearing jeans, sandals, strings of beads, a Eu-Manchu mustache, shirts bearing legends of his own selection and other habiliments tending to project an image of himself.

      . We may take judicial notice that reasonable regulations prescribing good grooming standards are not at all uncommon in the business world, indeed, taking account of basic differences in male and female physiques and common differences in customary dress of male and female employees, it is not usually thought that there is unlawful discrimination “because of sex.”

      . Appellant had here moved for summary reversal. We denied his motion on April 19, 1971. We granted status as Amicus to the Equal Employment Opportunity Commission (EEOO), and also afforded time for oral argument.

      . See, a. g., Massie v. Henry (4 Cir. 1971), 455 F.2d 779, and cases cited; Breen v. Kahl (7 Cir. 1969), 419 F.2d 1034, cert. denied 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970), followed in Crews v. Clones (7 Cir. 1970), 432 F.2d 1259; Stull v. School Board of Western Beaver Jr.-Sr. High School (3 Cir. 1972), 459 F.2d 339, with its recognition of the conflicts in various courts.

      . See, a. g., Freeman v. Flake (10 Cir. 1971), 448 F.2d 258, and cases cited at 260, cert. denied 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972), where Justice Douglas, dissenting, noted an equal division among the Circuits considering hair style regulations; Karr v. Schmidt (5 Cir. 1972), 460 F.2d 009, cert. denied 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972) ; Olff v. East Side Union High School District, cert. denied 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (1972) where Justice Douglas dissented with an opinion relating back to King v. Saddleback Jr. College District (9 Cir. 1971), 445 F.2d 932 and cases at 936; Jackson v. Dorrier (6 Cir.), 424 F.2d 213, cert. denied 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970).

      . Deeming its decision compelled by Karr v. Schmidt, a division of the Fifth Circuit in Sherling v. Townley, 464 F.2d 587 (1972), applied the Karr holding, with Judge Tuttle challenging, as he regarded the Karr majority view completely erroneous on First and Fourteenth Amendment grounds.

        And see Conard v. Goolsby, 350 F.Supp. 713 (N.D.Miss.E.D.1972), where a high school grooming regulation limiting the length and style of an adult teacher’s hair, mustache, goatee, or beard, was held irrelevant to any legitimate state interest, and hence not within the Karr v. Schmidt ruling.

      . And see Ms dissenting opinion in Olff v. East Side Union High School District, 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736, and his memorandum, dissenting, as of March 27, 1972, in Freeman v. Flake, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489.
      In the latter case, supra note 6, Judge Breitenstein had covered much the same ground as appears in Karr v. Schmidt, referring particularly, 448 F.2d at 261, to the proliferation of litigation which had resulted from an expanded use of 42 U.S.C. § 1983. Mr. Justice Brennan writing for a unanimous Court in District of Columbia v. Carter, 409 U.S. 418, 423-424, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), had pointed out that Section 1983 does not reach purely private conduct explaining further that the Fourteenth Amendment provides no shield against such conduct, however discriminatory or wrongful.

      . The statute obviously enough proscribes discrimination against any individual because of “race, color, religion, sex or national origin.”

      . See Griggs v. Duke Power Company (4 Cir. 1970), 420 F.2d 1225. Judge Sobeloff, dissenting in part from the majority holding, 420 F.2d at 1238 et seq., denounced the possibilities which he deemed had been left open by the position taken by the majority. There should be no denial of opportunity by artifice, he observed, for, to continue discriminatory practices, an employer need only choose any test that favors whites and is irrelevant to actual job qualifications. Tracing the legislative history in this area in 420 F.2d at 1241, 1242, 1243, Judge Sobeloff’s excellent discussion erected the target which drew the fire of the Supreme Court which, in substantial measure, tracked Judge Sobeloff’s position. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, at 799-801, 93 S.Ct. 1817, at 1823-1824, 36 L.Ed.2d 668 (1973).

      . The employer had notified Mrs. Phillips that it would accept no job applications from women with pre-school age children while there was no such policy with respect to men. The Court did not rule out the adoption of such a policy if demonstrably the fact of a conflicting family obligation became more relevant to job performance for a woman than for a man.

      . The court found insufficient basis for concluding that a bona fide bccupational qualification had been established as reasonably necessary for the operation of the company’s enterprise. See 42 U.S.C. § 2000e-2(e), Phillips v. Martin Marietta Corporation, supra, Cheatwood v. South Central Bell Telephone & Tel. Co., 303 F.Supp. 754 (Ala.N.D.1969), and Rosenfeld v. Southern Pacific Company (9 Cir. 1971), 444 F.2d 1219, 1223-1225.

      . See 42 U.S.C. § 2000e-2(a), supra, page 1119.

      . Cf. Dewey v. Reynolds Metals Company (6 Cir. 1970), 429 F.2d 324, 329, rehearing denied, id. 334, aff’d by an equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971).

      . See Manager Paugh’s affidavit, pages 3 and 4, supra.

      . Such a requirement can hardly be said to impose a “special disability” imposed upon one sex because of sex, to paraphrase Frontiero v. Richardson, 411 U.S. 677, at 686, 93 S.Ct. 1764, at 1770, 36 L.Ed.2d 583 (May 14, 1973). Cf. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed. 2d 225 (1971). Even were we to see here a sex-based classification, it readily would withstand the “strict judicial scrutiny” enjoined by Frontiero v. Richardson, supra, at 688, 93 S.Ct. 1764 at 1771. It is common practice in many lines of endeavor that employees must wear uniforms, e. g., when performing guard service, or entering premises to read utility meters.

      . See note 2, supra, and related text; cf. Dewey v. Reynolds Metals Company, note 14, supra, 429 F.2d at 334. We here see nothing in the legislative history of the Act or in the Act itself which requires a federal court to rule that an employee’s hair style which conflicts with an employer’s grooming regulation constitutes per se discrimination because of sex. On any such basis he certainly had no constitutional right to a job. Cf. discussion by Judge (now Mr. Justice) Blackmun in Byrd v. Sexton (8 Cir. 1960), 277 F.2d 418, 432, citing Ferrer v. Fronton Exhibition Co. (5 Cir. 1951), 188 F.2d 954, and Love v. Chandler (8 Cir. 1942), 124 F.2d 785.

      . No better illustration is needed than we find in the division among the judges in Karr v. Schmidt, supra, 460 F.2d 609, and among those same judges in Landsdale v. Tyler Jr. College, supra, 470 F.2d 659 — not to mention varying postions taken from time to time in the Supreme Court.

      . The court recognized that some men grow beards and some women become pregnant!
      In Schattman v. Texas Employment Commission (5 Cir. 1972), 459 F.2d 32, cert. denied, 409 U.S. 1107, 93 S.Ct. 901, 34 L.Ed.2d 688 (1973), the Commission had promulgated a policy terminating the employment of pregnant females some two months prior to the date of delivery. The plaintiff had not been denied “equal protection,” for her employment had not been terminated either because she was a woman or because she had become pregnant, said the court, but only because her pregnancy was so far advanced. The Commission’s regulation was found to be reasonable and rationally related to a permissible state purpose. Rehearing en bano was denied, Judge Wisdom dissenting.

      . See also No. 71-1415, Dodge v. Giant Food, Inc. (D.D.C.1972), where, without opinion, Judge Green’s findings support her conclusion that there had been no discrimination on the basis of sex where there were reasonable grooming regulations applicable alike to male and female employees.

      . Undoubtedly some employers may share the observations of Mr. Justice Douglas (concurring and dissenting) in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), where we read:
      The prejudices invoked by the mere sight of “non-conventional” hair growth are deeply felt. Hair growth is symbolic to many of rebellion against traditional society and disapproval of the way the current power structure handles social problems. Taken as an affirmative declaration of an individual’s commitment to a change in social values, “non-conventional” hair growth may become a very real personal threat to those who support the status quo. For those people, “non-conventional” hair growth symbolizes an undesirable life-style characterized by unreliability, dishonesty, lack of moral values, communial (“communist”) tendencies, and the assumption of drug use. (409 U.S. at 529, 530, 93 S.Ct. at 852).

      . Likewise no discrimination can be based upon constitutionally protected rights such as religion.

      . Such matter as we have quoted in this paragraph reflects the principles comprising the philosophy of the Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1973).

      . Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968) ; FMC v. Seatrain Lines, Inc., 411 U.S. 726, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973). In United States v. Cartwright, 411 U.S. 546, 93 S.Ct. 1713, 36 L.Ed.2d 528 (1973), the Court struck down as “unrealistic and unreasonable” a regulation promulgated by the Secretary of the Treasury even though Congress specifically had delegated to him the task of administering the tax laws of the nation.

      . Since matters outside the pleadings were presented and considered, we think the appellee’s motion to dismiss should be treated as one for summary judgment and disposed of as provided in Rule 56. See Irons v. Schuyler, 151 U.S.App.D.C. 23, 28, 465 F.2d 608, 613, cert. denied 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972) ; cf. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed. 2d 569 (1972).

      . 42 U.S.C. § 2000e-2(a) (1970).

      . 42U.S.C. § 2000e-2(e) (1970).