author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff, Wilmer-Hutchins Independent School District et al., Plaintiffs-Intervenors-Appellees, v. STATE OF TEXAS et al., Defendants, City of Wilmer, Texas, Defendant-Intervenor-Appellant.
    No. 74-3657.
    United States Court of Appeals, Fifth Circuit.
    Feb. 3, 1975.
    Rehearing Denied Feb. 19, 1975.

      A. Joe Fish, William A. McKenzie, Dallas, Tex., for appellant.
    Jerry F. McCarty, Billy J. Moore, En-nis, Tex., for appellees.
    John L. Hill, Atty. Gen., Roland Allen, Asst. Atty. Gen., Austin, Tex., for State of Texas.
    Samuel Flanagan, Joe Rich, U. S. Dept, of Justice, Civil Rights Div., Washington, D. C., for United States.
    Sylvia M. Demarest, Dallas Legal Services, Dallas, Tex., for Tasby, and others.
    Edward B. Cloutman, III, Dallas, Tex., for other interested parties.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   DYER, Circuit Judge:

The Wilmer-Hutchins Independent School District (WHISD) is a political entity whose territory includes the City of Hutchins, the City of Wilmer and a substantial area in the City of Dallas. Most of the white students live in the southern part of the district, primarily in Wilmer and Hutchins, while the black majority lives in the northern part of the district, primarily in the Dallas area. The boundary of the district has not changed since 1927. The schools in WHISD were fully integrated in 1970. Two prior attempts have unsuccessfully been made to disannex the predominately white southern portion of the district.

Acting under Section 19.161 of the Texas Education Code, V.T.C.A., (a codification of Articles 2768 and 2769 V.T. C.S., 1905) an election was held by Wilmer on June 8, 1974, and its Council certified the election and passed an ordinance to assume control of the schools within the municipality on June 11, 1974. Hutchins held an election on June 11, 1974, which was certified by its Council, and an ordinance was passed assuming control of the public schools on June 18, 1974. The respective cities advised the Board of Trustees of WHISD that they had acquired control of the public free schools within their city limits and requested WHISD to transfer the control and management of the ‘schools to Wilmer and Hutchins.

The Texas Education Agency (TEA) having been informed of the actions taken by Wilmer and Hutchins made an investigation of the proposed disannexa-tions pursuant to the requirements imposed upon it by a previous standing district court order. The investigation disclosed that in the 1973 — 74 school year approximately 5380 students were enrolled, 90.5 per cent of whom were black or Mexican-American. WHISD has eight school buildings. Four are located in Dallas, two in Hutchins with a total capacity of 900 students, one in Wilmer with a total capacity of 660 students and one high school on the boundary of Wilmer and Hutchins with a capacity of 1530 students. The four buildings located in Wilmer and Hutchins account for 46.7 per cent of the WHISD total capacity. The proposed Wilmer Independent School District would have an enrollment of 389 students and the proposed Hutch-ins Independent School District would have an enrollment of 350 students for a total of 739 students in Wilmer and Hutchins or 13.7 per cent of the WHISD total enrollment.

During the TEA investigation Hutch-ins began the registration of students and used the facilities of the Elementary school building. Although the superintendent of WHISD requested the Hutch-ins officials to leave they refused to do so, taking the position that the school building had become the property of the City of Hutchins. The expected confusion ensued. The result of the investigation by TEA demonstrated the following racial composition of the current and proposed districts:

Total Enrollment % Minority
WHISD-1973-74 5380 90.5
Proposed Wilmer 389 48.6
Proposed Hutchins 350 42.9
Remaining WHISD 4641 97.6

TEA accordingly denied Hutchins’ and Wilmer’s request for recognition and accreditation.

Upon application of WHISD for injunctive relief the district court found that the creation of the proposed districts would increase the minority population of WHISD in violation of the district court’s outstanding order of April 20, 1971, reentered July 31, 1971, in United States v. Texas, E.D.Tex.1970, 321 F.Supp. 1043, supp. mem. opinion, 330 F.Supp. 235, aff’d with modifications, 5 Cir. 1971, 447 F.2d 441, stay denied sub nom. Edgar v. United States, 1971, 404 U.S. 1206, 92 S.Ct. 8, 30 L.Ed.2d 10, cert. denied 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663. Under this order the TEA was required to investigate each proposed change of school district boundaries and to disapprove those which “in fact, create, maintain, reinforce, renew, or encourage a dual school system based on race, color, or national origin.” 447 F.2d at 444. The district court preliminarily enjoined Wilmer and Hutchins from occupying or attempting to occupy any WHISD school; from registering any student within WHISD; and from carving out any new school district from WHISD. This appeal by the City of Wilmer ensued. We affirm.

The attempt to create splinter school districts in the circumstances here related flies in the face of Wright v. City of Emporia, 1972, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 and United States v. Scotland Neck Bd. of Educ., 1972, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75.

In City of Emporia the Supreme Court noted with approval that

federal courts . . . have held that splinter school districts may not be created “where the effect — to say nothing of the purpose — of the secession has a substantial adverse effect on desegregation of the county school district.” 407 U.S. at 462, 92 S.Ct. at 2203.

Here the result of the splinter districts would be to create “a refuge for white students of the [WHISD] system.” Scotland Neck, supra 407 U.S. at 489, 92 S.Ct. at 2217.

Preliminary relief was also mandated, not only because of the racial considerations of the spin off districts, i. e. the creation of two districts of approximately 50 per cent white students from a district now 91 per cent minority, but also because WHISD would have lost 47 per cent of its school building capacity with a loss of only 14 per cent of its students, and this would have been accomplished with no provision made for the payment of a bonded indebtedness of $2.2 million.

Recognizing, but attempting to avoid the impact of these decisions, Wilmer argues that the inevitable black encroachment in WHISD makes the difference between the 90.5 per cent combined black and Mexican-American enrollment for 1973 — 74 and the 97.6 per cent combined black and Mexican-American enrollment expected for WHISD under the proposed disannexation plan de minimis. We dismiss this as a self defeating test.

Wilmer further contends that certain agencies of the United States, the Dallas Independent School District and WHISD have acted to create, maintain or perpetuate dual school systems and that it is inequitable to restrain Wilmer from creating a racially balanced municipal school district when this could be accomplished and the racial imbalance in the remaining portions of WHISD could be relieved by consolidating them with the Dallas Independent School District. We are unpersuaded.

At the outset, Wilmer offered no evidence of inter-district discriminatory acts or policies and inter-district effect. Cf. Milliken v. Bradley, 1974, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069. Equally important, we are reviewing the issuance of a preliminary injunction, not a final judgment after a trial in the district court. Accordingly, we do not inquire into the merits except to the extent they bear on whether WHISD is likely to prevail. See Nelms v. United Ass’n of Journeymen and App. of Plumbing, etc., 5 Cir. 1968, 405 F.2d 715. In the light of City of Emporia, Scotland Neck and United States v. Saluda County School Dist. No. 1, 4 Cir. 1973, 488 F.2d 804, WHISD carried the day on this point. What we have already said suffices to underscore the presence of the other prerequisites for granting a preliminary injunction, i. e. that there was a substantial threat that WHISD would suffer irreparable injury if the injunction was denied; that the threatened injury to WHISD was great with no showing that the injunction would result in any immediate damage to Wilmer; and finally that the granting of the preliminary injunction would not disserve the public interest since maintaining the status quo pending a full trial on the merits was the appropriate means to determine whether the proposed districts would contribute to, or destroy, a unitary, nonracial system of public education. Canal Authority v. Callaway, 5 Cir. 1974, 489 F.2d 567. We conclude that the district court properly exercised its discretion in granting the preliminary injunction and we therefore decline to disturb it. Alabama v. United States, 1929, 279 U.S. 229, 49 S.Ct. 266, 73 L.Ed. 675.

Finally, Wilmer complains that this cause was required to be heard by a three-judge court under 28- U.S.C.A. § 2281 because injunctive relief was sought against the operation of a state statute on the grounds of the unconstitutionality of the statute as applied. We disagree. The constitutionality of Section 19.161 of the Texas Education Code on its face, or as it is applied, is not in issue. It is not self executing. It does no more than authorize municipalities to take further legislative action precisely as Wilmer and Hutchins did here. It is the municipal action taken by cities that is sought to be enjoined. This distinction was clearly drawn in Ex parte Bransford, 1940, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249:

It is necessary to distinguish between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which requires a three-judge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional. The latter petition does not require a three-judge court.

See also, Griffin v. School Board, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256.

Affirmed.

      . The City of Hutchins did not appeal.


source: Caselaw Access Project

author: WEBSTER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Harold McMILLAN, Appellant.
    No. 74-1270.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Dec. 31, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1577.

      Donald S. Eisenberg, Madison, Wis., for appellant.
    John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

Harold McMillan appeals from a judgment of conviction entered March 14, 1974, following a jury trial at which he was found guilty of distributing heroin in violation of 21 U.S.C. § 841(a).

The primary issue in this appeal is whether the District Judge erred in admitting certain tape recordings and transcripts of these recordings into evidence at McMillan’s trial. Other assignments of error include withholding favorable evidence, prejudicial statements at the trial and insufficiency of the evidence.

In an effort to decrease the volume of illicit drugs being sold in the Minneapolis area, federal and local narcotics agents enlisted one Beverly Johnson to purchase controlled substances and serve as a paid government informant. Between November 7 and November 12, 1973, a special agent of the Federal Drug Enforcement Administration tape recorded many of Johnson’s telephone conversations by attaching a recording device to her telephone. Among the conversations recorded were several she had with Harold McMillan in which she arranged to purchase heroin from him.

On November 11, 1973, McMillan was observed entering the building at 940 Franklin Terrace, Minneapolis, Minnesota. He proceeded to apartment 108 where Beverly Johnson lived, stayed a few minutes and left. Shortly thereafter one of the agents entered the apartment through a rear door and discovered 25 bindles lying on the kitchen table. Later chemical analysis showed these bindles to contain heroin. On the following day, McMillan made two more visits to Johnson’s apartment. At the first visit he was paid $230 for the heroin he had delivered the day before, and at the second he delivered another 23 bindles which also were proved to contain heroin.

I.

At trial the District Judge permitted the tape recordings of McMillan’s conversations with Johnson to be played. Instead of giving transcripts of these conversations to the jury at the time the tapes were played, which the government had suggested and the defense objected to, the District Judge ordered the agent who had made the recordings and prepared the transcripts to read the transcript of each tape aloud to the jury immediately after the tape had been played. The defense objected to the playing of the tapes and contended that they were made in violation of McMillan’s Fourth Amendment rights, were introduced without proper foundation and were highly prejudicial. The reading of the transcripts was objected to as cumulative.

On appeal McMillan asserts that Beverly Johnson lacked the capacity to give a valid consent to the recording of her telephone conversations with McMillan without his approval because she was a paid government informant, that tape recordings of an informant’s conversations with an accused party can only be used to corroborate the informant’s testimony, and that no proper foundation was laid for the introduction of the tapes. In addition, he contends that if no proper foundation was laid for the introduction of the tapes, the District Judge erred in permitting the introduction of the transcripts. These contentions are without merit.

Foundation

It is now well settled that a defendant’s Fourth Amendment rights are not violated when the defendant’s conversations with a government informant are electronically monitored by a government agent with the consent of the informant. E. g., United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (opinion of White, J., in which the Chief Justice and Stewart and Blackmun, JJ. concurred); United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973); United States v. Bishton, 150 U.S.App.D.C. 51, 463 F.2d 887 (1972); United States v. Quintana, 457 F.2d 874 (10th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972); United States v. Holmes, 452 F.2d 249 (7th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479, 407 U.S. 909, 92 S.Ct. 2433, 32 L.Ed.2d 683 (1972); cf. United States v. Skillman, 442 F.2d 542 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971).

Similarly, the use of evidence obtained by such electronic monitoring is not limited to corroboration of the testimony of the informant. United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973). Of course, a proper foundation must be laid for the introduction of the evidence. In Slatinsky v. Bailey, 330 F.2d 136 (8th Cir. 1964), we approved the formulation contained in United States v. McKeever, 169 F.Supp. 426, 430 (S.D.N.Y.1958), rev’d on other grounds, 271 F.2d 669 (2d Cir. 1959). Those requirements include a showing:

(1) That the recording device was capable of taking the conversation now offered in evidence.
(2) That the operator of the device was competent to operate the device.
(3) That the recording is authentic and correct.
(4) That changes, additions or deletions have not been made in the recording.
(5) That the recording has been preserved in a manner that is shown to the court.
(6) That the speakers are identified.
(7) That the conversation elicited was made voluntarily and in good faith, without any kind of inducement.

McMillan asserts that items (3) and (6) were not met in this case.

It is sometimes necessary that both the informant and the recorder testify in order to meet this burden. It does not follow, however, that the party to the conversation must in each case testify that the recording was authentic and correct and must also identify the speakers. Agent O’Connor testified that he heard the voice of Beverly Johnson at all times when he was making the recording, that that part of the conversation was accurate, and that immediately after the telephone calls were completed the tape was replayed by O’Connor in Johnson’s presence to verify that the conversations had in fact been recorded and that the instruments were operating correctly. We think this testimony sufficiently establishes that the recordings were true and accurate.

“ The standard for the admissibility of an opinion as to the identity of a speaker is merely that the identifier has heard the voice of the alleged speaker at any time.” United States v. Rizzo, 492 F.2d 443 (2d Cir.), cert. denied, 417 U.S. 944, 94 S.Ct. 3069, 41 L.Ed.2d 665 (1974); see United States v. Bonanno, supra, 487 F.2d at 659; Proposed Federal Rules of Evidence 901(b)(5); McCormick, Evidence § 226 at 553 — 555 (Cleary ed. 1972). From the record in the instant case it is not clear whether Special Agent O’Connor’s identification of McMillan’s voice was based on another hearing of McMillan’s voice or upon the circumstances which gave rise to the recording. However, “in view of the identity between the scenario arranged on the telephone and that subsequently enacted, the case would come within the principle of Van Riper v. United States, 13 F.2d 961, 968 (2d Cir.), cert. denied, 273 U.S. 702, 47 S.Ct. 102, 71 L.Ed. 848 (1926), that in some instances ‘the substance of the communication may itself be enough to make prima facie proof.’ ” United States v. Bonanno, supra, 487 F.2d at 659. We therefore conclude that a proper foundation was laid for the introduction of the tapes.

Use of Transcripts

The transcripts of the tape recordings were prepared by the government. Appellant objected to distributing copies to the jury. The District Court then permitted a government witness to read a transcript to the jury from the witness stand immediately following the playing of the related taped conversation to the jury. Appellant challenged this procedure only as cumulative. Appellant later objected to sending the tapes to the jury but allowed the transcripts to go without objection.

Appellant in his brief challenges the use of the transcripts only upon the assumption that the tapes were admitted without foundation and that the use of the transcripts under such circumstances merely compounded the error. Our holding that a proper foundation was laid for the tapes disposes of this contention. To the extent that appellant purported to challenge the accuracy of the transcripts, we think that claim of error was waived by appellant in failing to object to the transcripts going to the jury room.

Our holding does not constitute approval of the procedure followed at the trial. The best evidence of the conversation is the tape itself; the transcript should normally be used only after the defendant has had an opportunity to verify its accuracy and then only to assist the jury as it listens to the tape. If accuracy remains an issue, a foundation may first be laid by having the person who prepared the transcripts testify that he has listened to the recordings and accurately transcribed their contents. Cf. Fountain v. United States, 384 F.2d 624, 632 (5th Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). Because the need for transcripts is generally caused by two circumstances, inaudibility of portions of the tape under the circumstances in which it will be replayed or the need to identify the speakers, see United States v. Bryant, 480 F.2d 785, 790-791 (2d Cir. 1973); Fountain v. United States, supra, 384 F.2d at 632; United States v. Hall, 342 F.2d 849, 853 (4th Cir.), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965), it may be appropriate, in the sound discretion of the trial judge, to furnish the jurors with copies of a transcript to assist them in listening to the tapes. In the ordinary case this will not be prejudicially cumulative. United States v. Fountain, supra, 384 F.2d at 632. Transcripts should not ordinarily be read to the jury or given independent weight. The trial judge should carefully instruct the jury that differences in meaning may be caused by such factors as the inflection in a speaker’s voice or inaccuracies in the transcript and that they should, therefore, rely on what they hear rather than on what they read when there is a difference. Transcripts should not ordinarily be admitted into evidence unless both sides stipulate to their accuracy and agree to their use as evidence. See generally 17 Am.Jur.P.O.F. Tape Recordings as Evidence §§ 54-56 (1966).

II.

After carefully considering each of McMillan’s other assertions of error, we are satisfied that they fail to establish any proper ground for reversal, either singularly or cumulatively. We will deal with each of them briefly.

McMillan contends that the government failed to disclose that its informant Beverly Johnson had concealed and used some of the heroin he had distributed to her and that this prejudiced his right to cross-examine Johnson and one of the narcotics agents who was involved in the case. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The record is to the contrary. Johnson stated on direct examination that she had concealed and used some of the heroin, and McMillan’s attorney cross-examined both Johnson and the agent on this point. There was no prejudice. See United States v. Cole, 449 F.2d 194, 198 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 991, 30 L.Ed.2d 806 (1972).

McMillan contends that the District Court erred in refusing to strike the testimony of the government’s chemist, Terry R. Gaston, on the ground that the man was not an expert at all. We have held on numerous occasions that the determination of the qualifications of an expert is a matter left to the discretion of the trial court. E. g., United States v. Burden, 497 F.2d 385 (8th Cir. 1974); United States v. Cochran, 475 F.2d 1080, 1084 (8th Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); White v. United States, 399 F.2d 813, 819 (8th Cir. 1968). See generally McCormick, Evidence § 13 at 30 (Cleary ed. 1972). Gaston is a forensic chemist with the Drug Enforcement Administration. After examining the record which discloses his educational background and experience, we are convinced that the District Court did not abuse its discretion in allowing Gaston to testify as an expert. The weight of his testimony was properly left for the jury to determine. United States v. Burden, supra, 497 F.2d at 387.

We have examined the record and conclude that the remaining allegations of trial error are without substance, harmless or cured by the court’s limiting instructions. Taking the evidence in the light most favorable to the government, as we must, the evidence of McMillan’s guilt was substantial and we reject the challenge to its sufficiency.

Affirmed.

      . The Honorable Earl R. Larson, United States District Judge for the District of Minnesota.

      . In a separate pro se statement, McMillan asserted that it was never determined at trial that Johnson had actually consented to the recording of her conversations. However, after considering the totality of the circumstances, it is impossible for us to conclude anything but that Ms. Johnson had consented. See United States v. Bonanno, 487 F.2d 654, 658-659 (2d Cir. 1973) (it will normally suffice for the government to show that the informer went ahead with a call after knowing what the law enforcement officers were doing).


author: TONE, Circuit Judge. KILKENNY, Senior Circuit Judge

text:
    LOCAL 81, AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL-CIO, Plaintiff-Appellee, v. WESTERN ELECTRIC COMPANY, INC., a corporation, Defendant-Appellant.
    No. 73-2044.
    United States Court of Appeals, Seventh Circuit.
    Heard Oct. 22, 1974.
    Decided Dec. 18, 1974.

      Charles J. Griffin, Jr., and Scott A. Lathrop, Chicago, 111., for defendant-appellant.
    Stephen B. Rubin, Chicago, 111., for plaintiff-appellee.
    Before KILKENNY, Senior Circuit Judge, TONE, Circuit Judge, and CAMPBELL, Senior District Judge.*

       Senior Circuit Judge John F. Kilkenny of the United States Court of Appeals for the Ninth Circuit and Senior District Judge William J. Campbell of the Northern District of Illinois are sitting by designation.

   TONE, Circuit Judge.

The defendant company appeals from a summary judgment in favor of the plaintiff union directing arbitration of three grievances under an arbitration clause in a collective bargaining agreement between the parties. The action is brought under Section 301 of the Labor Relations Act, as amended, 29 U.S.C. § 185.

The arbitration clause is in the usual form. Under it, “Any dispute arising between the Union and the Company with respect to the interpretation or application of any provision of this Agreement,” may be referred by either party to an arbitrator in accordance with the procedure set forth in the agreement, provided that the grievance procedure set forth elsewhere in the agreement is first exhausted and that “such dispute is not excluded from arbitration by other provisions of this Agreement.” The arbitration procedure provided in the agreement is summarized below, to the extent it is pertinent.

The right to arbitration arises solely from the agreement between the parties. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-547, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Independent Petroleum Workers v. American Oil Co., 324 F.2d 903, 906 (7th Cir. 1963). The settling of labor disputes by arbitration pursuant to collective bargaining agreements, calling for arbitration, is, however, favored as a matter of federal policy under the Labor Management Relations Act. Inland Steel Co. v. Local Union No. 1545, United Mine Workers of America (7th Cir., 1974), 505 F.2d 293, 298. See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 566-567, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Nav. Co., supra, 363 U.S. at 577-578, 581, 80 S.Ct. 1347; United Steelworkers of America v. Enterprise W. & C. Co., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

The First Grievance

Charles A. Maskeri, who was employed by the Company as an engineering associate, was reclassified from the third to the fourth quartile in the Company’s rating of overall employee performance. An employee’s quartile rating is one important criterion in the Company’s determination of whether a merit increase should be granted to the employee. It has no other significance. The Union seeks the restoration of Maskeri to the third quartile.

Under the collective bargaining agreement, the determination of whether any merit increase should be awarded and, if so, how much it should be is solely within the employer’s “judgment and discretion.” The choice of the specific factors to be considered in the decision and the weight to be accorded to each are also matters left to the discretion of the Company. Although merit increases may be made the subject of grievances, “such grievances shall not be subject to the arbitration provisions of the agreement.”

The Company argues that the effect of these merit increase provisions is to remove the entire process of evaluating an employee, including establishing his rating regarding any of the factors, from the scope of the arbitration clause, and that the bargaining history supports its position.

The Union argues that it is only the ultimate decision of whether to grant a merit increase and the amount thereof that is left to the Company’s judgment and discretion, and that the subsidiary question of the proper quartile rating is not excluded from arbitration. It disputes the Company’s view of the bargaining history.

Since the bargaining history may determine the arbitrability of this grievance, and the parties disagree as to what that history shows, summary judgment cannot be entered. The District Court must hold a hearing to determine whether the bargaining history shows that the parties intended to submit this category of disputes to arbitration. Associated Milk Dealers, Inc. v. Milk Drivers Union, Local 753, 422 F.2d 546, 551 (7th Cir. 1970). Contrary to the Company’s contention, neither Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974), nor Int’l Union of Op. Engineers, Local 150 v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972), casts doubt on whether evidence outside the contract is admissible to show the intention of the parties.

The Second and Third Grievances

Unlike the First Grievance, which raises the issue of whether a particular subject is arbitrable, the Second and Third Grievances concern subjects unquestionably within the scope of the arbitration clause. The reason given by the Company for not submitting these latter grievances to arbitration is that the Union has not complied with the procedural requirements of the arbitration provision.

The Second Grievance challenges the firing of two employees from different departments on different dates. The Company relies upon a procedural provision of the arbitration article barring referral to arbitration of grievances encompassing more than one disputed matter. The Union contends that, because it chose to drop the part of the grievance relating to one of the employees, only a single matter remains for arbitration.

In the Third Grievance the issue arises under a procedural provision of the arbitration article which states that the right to arbitration is waived if, within 60 days after the demand for arbitration, “the parties have not jointly selected an arbitrator.” The Company contends that the Union has waived the right to arbitration by its failure to submit a list from which the parties could select an arbitrator within 60 days after the demand for arbitration. The Union contends that the delay was caused by the failure of the Federal Mediation and Conciliation Service to respond promptly to the Union’s timely request to designate a panel of arbitrators, and that the 60-day provision does not apply in these circumstances.

The issue presented to the District Court for decision with respect to the Second and Third Grievances was not whether the subject of the grievance was arbitrable but whether the procedural requirements of the arbitration provision had been complied with. The District Court correctly decided that this issue should be decided by the arbitrator rather than the court.

It is the court’s duty to interpret the meaning of the arbitration clause, i. e., whether a given dispute is arbitrable, unless the agreement clearly states to the contrary. United Steelworkers of America v. American Mfg. Co., supra, 363 U.S. at 571, 80 S.Ct. 1343. This rule does not, however, extend to interpreting procedural provisions of the agreement to arbitrate once it appears that an arbitrable dispute exists. In John Wiley

& Sons, Inc. v. Livingston, supra, 376 U.S. at 557, 84 S.Ct. at 918, the Supreme Court said:

“Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.”

The procedural nature of the objections raised by the Company to the arbitration of the Second and Third Grievances is apparent. Among the provisions referred to in the clause which provides for arbitration “in accordance with the procedure hereinafter set forth” are those that the Company relies upon to justify its refusal to arbitrate.

The Third Grievance issue is governed not only by the general principle that procedural matters are for the arbitrator to decide, but also by the Supreme Court’s ruling on a similar issue in Int’l Union of Op. Engineers, Local 150 v. Flair Builders, Inc., supra, 406 U.S. at 491-492, 92 S.Ct. at 1713:

“ . . . once a court finds that, as here, the parties are subject to an agreement to arbitrate, and that agreement extends to ‘any difference’ between them, then a claim that particular grievances are barred by laches is an arbitrable question under the agreement.”

The District Court’s judgment as to the Second and Third Grievances is affirmed; as to the First Grievance, the judgment is vacated and remanded for further proceedings.

Affirmed in part; vacated and remanded in part.

KILKENNY, Senior Circuit Judge

(concurring and dissenting):

I fully concur in the majority’s disposition of the first grievance. However, I am unable to agree with the majority’s views on the second and third grievances and express my views on those subjects as follows:

Second Grievance

Here, in my opinion, the district court erroneously left to the arbitrator the function of deciding whether the contract excluded the particular grievance from arbitration. In avoiding the issue, the court opined, “We cannot say as a matter of law that this grievance is non-arbitrable.” The court should have examined the contract and decided whether the totally unrelated termination of two employees, who were employed in different departments, should have been submitted to arbitration before a single arbitrator. Under International Union of Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); and Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), it was the duty of the district court to decide whether Article 14, section 3 of the agreement prohibited arbitration on the single grievance concerning the discharges of the employees Berg and Bohn. In my opinion, the court should have determined whether, in fact, the Union dropped the Bohn grievance and demanded arbitration on the Berg grievance only. The record is silent on this subject. As above stated, it was the function of the lower court to decide whether the parties had agreed to arbitration on this issue, as well as to speak on the scope of the arbitration clause. Atkinson v. Sinclair Refining Co., supra.

Third Grievance

Here again, the lower court failed to decide whether the grievance was subject to arbitration as required by Atkinson, Flair Builders and Wiley & Sons, Inc., supra. On this grievance, appellant relied upon the exclusionary clause in Article 14, section 4, which barred the arbitration of a grievance where the ap-pellee did not request an arbitration panel within the 60-day period mentioned in the exclusion. The district court held: “An arbitrator should decide the threshold question enroute to the merits.” I disagree. The court, rather than the arbitrator, should decide whether under the contract, the 60-day exclusion clause was intended to apply to a delay that may have been occasioned by the Federal Mediation and Conciliation Service.

I would vacate the judgment of the court on all three grievances and remand for further proceedings.

      . “3. Each referral to arbitration shall embrace but one (1) such matter in dispute, unless otherwise stipulated by agreement between the Union and the Company.”

      - “4. . . . However, the right to arbitrate any such dispute shall be deemed waived if, within sixty (60) days following the date upon which written demand for arbitration is made in accordance with Paragraph 2, the parties have not jointly selected an arbitrator. Likewise, the right to arbitrate any such dispute shall be deemed waived, if, within a period of six (6) months following the selection of an arbitrator as provided herein, or by the expiration date of this Agreement, whichever occurs first, a hearing before the arbitrator in such dispute has not taken place, provided the arbitrator selected is available during the specified period.”


author: VAN DUSEN, Circuit Judge.

text:
    Lucille SARTESCHI, Appellant v. Lester F. BURLEIN, Chairman, Pennsylvania Turnpike Commission, et al.
    No. 74-1316.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 12, 1974.
    Decided Jan. 6, 1975.

      John R. Anderson, Pittsburgh, Pa., for appellant.
    Thomas J. Dempsey, Pittsburgh, Pa., for appellees.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

The plaintiff brought this civil rights action to challenge her discharge from the employ of the defendants, present and former members and employees of the Pennsylvania Turnpike Commission; from the district court’s January 23, 1974, jurisdictional dismissal the plaintiff has filed a timely appeal.

It appears from the plaintiff’s August 17, 1973, complaint that she was employed as an “Officer-Collector” from October 9, 1968, until December 30, 1969. She contends that her discharge was in retaliation for her supporting the Teamsters Union’s efforts to organize employees of the Commission and that such retaliation constituted an interference under color of state law both with her freedoms of speech and association and with her “rights to notice and an impartial hearing before discharging her from public employment.” Plaintiff also alleges that most of the employees discharged during the Teamsters’ organizing campaign were rehired during the 1970 gubernatorial campaign, but that she was not solely because she supported the then candidate Shapp instead of the incumbents; this reinstatement decision is alleged to have deprived her of “the right to participate in the electoral process and to openly support the candidate of her choice.” The plaintiff prays damages, both compensatory and punitive, and reinstatement with seniority. On October 9, 1973, the defendants filed a motion to dismiss.

On January 23, 1974, the district court granted the defendants’ motion on the ground “ that the above-styled cause is in substance a suit against said Commission for wrongful discharge and that appropriate relief, if merited, would require official action by said Commission, such as reinstatement, back pay, and the like; and the Court being of the opinion that it is an arguable question whether said Commission is a ‘municipality’ or is a ‘person’ suable under 42 U.S.C. 1983.” The dismissal was granted “without prejudice ... to the filing of a similar action against the said Turnpike Commission, in which the suability or immunity of said Commission may be directly decided.” We have decided that the January 23, 1974, order of the district court is inconsistent with the decisions both of this Circuit and of the Supreme Court regarding civil rights actions against state officials, and we therefore reverse.

The Fourteenth Amendment to the United States Constitution prohibits states from depriving “any person of life, liberty, or property, without due process of law;” and from denying “to any person within [their] jurisdiction^] the equal protection of the laws.” The due process clause has been interpreted to protect the freedoms of speech and association against state interference. See, e. g., Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandéis, J., concurring); Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Congress has given the federal courts jurisdiction over civil actions which concern alleged state violations of the Fourteenth Amendment rights. 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, relied on by the plaintiff, provide:

“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; . . . 28 U.S.C. § 1343(3)
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983.

The Eleventh Amendment to the Constitution provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The Eleventh Amendment has been interpreted to prohibit suits against a state by its own citizens, as well. See Edel-man v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

The Supreme Court has accommodated both the Eleventh Amendment and the civil rights provisions, such as 42 U.S.C. § 1983, by prohibiting suits which seek to collect money judgments from the state treasury, while allowing suits which either seek personal money judgments against state officials as damages for unconstitutional deprivations or seek prospective injunctive relief from unconstitutional deprivations taken under color of state law. Compare Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974) (“equitable restitution” of public aid amounts unconstitutionally withheld from the intended beneficiaries, which “is in practical effect indistinguishable in many aspects from an award of damages against the State,” is barred by the Eleventh Amendment) with Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (suit to collect money damages from the Governor of the State of Ohio, the Adjutant-General of the Ohio National Guard and his Assistant, various officers and enlisted members of the Ohio National Guard, and the president of Kent State University, for deployment of National Guard forces in a manner which deprived the plaintiffs of due process of law, not barred by Eleventh Amendment); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (suit to enjoin state official’s enforcement of a rate-setting statute claimed to be in violation of the United States Constitution not barred by the Eleventh Amendment). The theory of Ex parte Young is stated as follows;

“If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” Id. at 159-160, 28 S.Ct. at 454.

Under the foregoing precedents, the plaintiff’s complaint cannot be dismissed for the reasons stated by the district court. The plaintiff does not seek damages from the state treasury, but only from those named defendants who were members or employees of the Commission at the time of her discharge. The fact that the allegedly unconstitutional acts of the defendants were done in the defendants’ official capacities, and that the relief sought would require official action on the part of those defendants who are still members or employees of the Commission, does not affect the district court’s jurisdiction. See, e. g., Griffin v. School Board, 377 U.S. 218, 232-234, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) (ordering, inter alia, defendants to operate certain public schools which had been closed in an effort to frustrate desegregation); Rochester v. White, 503 F.2d 263 (3d Cir. 1974).

Cohn and Kassab, the two defendants who were not members or employees of the Commission at the time of the plaintiffs’ discharge, deserve a special caveat. The plaintiff argues that it is customary to substitute successors in office for named defendants, citing F.R. Civ.P. 25(d) and such examples of the practice as Sostre v. McGinnis, 442 F.2d 178, 181-182 n. 1 (2d Cir. 1971), and Sims v. Amos, 336 F.Supp. 924, 932 n. 9 (M.D.Ala.) (three judge court), aff’d, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). While a substitution of successors in office is proeedurally sound, to obtain injunctive relief against the successor there must be some indication that the successor would otherwise continue the unconstitutional practices alleged in the complaint. Mayor of the City of Philadelphia v. Educational Equality League, 415 U.S. 605, 622-623, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974); Spomer v. Littleton, 414 U.S. 514, 520-523, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974). On the plaintiff’s version of the facts, she has not been rehired because she supported Milton Shapp’s campaign for Governor. Cohn and Kassab were appointed by Governor Shapp himself. Plaintiff’s Complaint at par. 32. These allegations cause us seriously to question whether Cohn and Kassab will oppose the plaintiff’s appointment on the ground that she was a supporter of Shapp. But, despite these doubts raised by the complaint, we do not believe that we can affirm the district court’s dismissal as to Cohn and Kassab. The complaint avers that the plaintiff still has not been rehired, and that Cohen and Kassab, together with their brethren on the Commission, are responsible for this continuing constitutional deprivation. This is enough for the complaint not to be dismissed as to Cohn and Kassab on the pleadings alone. Should later development of the facts reveal, however, that defendants Cohn and Kassab support the plaintiff’s appointment, or oppose it for reasons which are constitutionally permissible, it would be appropriate, upon proper motion by defendants, to enter judgment in favor of Cohn and Kassab.

Although we find that the complaint is sufficient to invoke the district court’s jurisdiction as to all defendants, we do not mean to suggest any conclusion as to whether the plaintiff is entitled to relief. The federal courts have traditionally been hesitant to interfere with the appointment of state employees. In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Court said:

“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”

This language was recently affirmed in Arnett v. Kennedy, 416 U.S. 134, 151, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (plurality opinion). See also Sampson v. Murray, 415 U.S. 61, 69-71, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). Although the plaintiff’s complaint alleges at paragraph 36 that the defendants’ actions “deprived Plaintiff of her rights to notice and an impartial hearing before discharging her from public employment,” a right to such notice and hearing must be shown to exist as a matter of state law or custom before the Fourteenth Amendment can be invoked to protect such a notice or hearing. See Board of Regents v. Roth, supra at 576 — 578. On the other hand, state authorities have been prevented from exercising their discretion over hiring and firing in a manner which unnecessarily interferes with the employees’ First Amendment rights. See, e. g., Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Alderman v. Philadelphia Housing Authority, 496 F.2d 164 (3d Cir. 1974). The Supreme Court has stated the relevant inquiry as follows:

“The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1735.

Cf. Arnett v. Kennedy, supra, 416 U.S. at 158 — 163, 94 S.Ct. at 1648 (removal “[for] such cause as will promote the efficiency of the service” is not so vague and overbroad as to chill protected First Amendment expression). See generally The Supreme Court, 1972 Term, 87 Harv. L.Rev. 55, 141 — 153 (1973). Which interest — the plaintiff’s in exercising her First Amendment rights, or the government’s, in limiting such exercise — is the weightier is a question which must await resolution by the district court after it has determined the facts involved in the case.

Accordingly, the district court’s dismissal as to all the defendants will be reversed and the case will be remanded to the district court for further proceedings.

      . By order entered September 10, 1973, the district court extended the time for the defendants “to file and serve” responsive pleadings or motions to October 5, 1973. Although the defendants’ motion to dismiss was not filed until October 9, 1973, it was served on the plaintiff on October 5, 1973.

      . There appears to be no doubt in this case that the defendants’ actions were “under col- or of state law” for purposes of § 1983; the defendants’ position is the converse, that there was such profound state coloration as to give rise to the Eleventh Amendment’s sovereign immunity. We are not suggesting that the Commission is entitled to the immunity discussed in Edelman, as this issue is not before us. See Goode v. Rizzo, 506 F.2d 542, p. 550 (3rd Cir., 1974); Skehan v. Board of Trustees, etc., 501 F.2d 31, 41-43 (3d Cir. 1974).

      . Although the district court’s January 23, 1974, order appears to assume that appropriate relief would include the payment of back pay by the Commission, the plaintiff’s complaint seeks monetary damages only from the individual, named defendants. Plaintiff’s Complaint; Prayer for Relief, 2.

      . Although the complaint should not have been dismissed, the fact that the alleged unconstitutional actions were taken by the defendants in their official capacities may open certain defenses. See Scheuer v. Rhodes, 416 U.S. 232, 238-250, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Fidtler v. Rundle, 497 F.2d 794 (3d Cir. 1974); Gordenstein v. University of Delaware, 381 F.Supp. 718, 727-728 (D.Del.1974).

      . The plaintiff might, for example, prove that Cohen and Kassab believe that the Commission should have absolute freedom to fire employees in retaliation for the employees’ political opinions, and oppose the plaintiffs reinstatement in order to protect such imagined power. If this were the case, injunctive relief against them may be appropriate. See pp. 114 — 115, infra.

      . Of course, the same reasoning applies to other defendants as well: if a development of the facts reveals that the plaintiff has not been reinstated for reasons entirely unrelated to her political affiliations, judgment in favor of all defendants will be appropriate.
      We note also that dismissal of the complaint against Cohn and Kassab would not impair the district court’s ability to grant the plaintiff relief. Since three of the five members of the Commission constitute a quorum, 36 P.S. § 652d (1961), an order directed only to defendants Burlein, Bollinger and Meehan could effect the plaintiff’s reinstatement.

      . The Court in Sampson v. Murray, supra, also endorsed the position of several late 18th and early 19th Century cases that, absent a specific provision to the contrary, the power of removal from federal office is incident to the power of appointment. 415 U.S. at 70, n. 17, 94 S.Ct. 937. The Commission is given the power to employ “experts and inspectors and attorneys, and such other employes as may be necessary in its judgment.” 36 P.S. § 652d (1961). To prove her claim that a lack of notice and hearing violated due process, the plaintiff would have to call to the district court’s attention some other provision or custom which would limit the power conferred by § 652d by requiring a notice and hearing before discharge.
      The appellees rely on Dorsey v. N.A.A.C.P., 408 F.2d 1022 (5th Cir. 1969), and Charters v. Shaffer, 181 F.2d 764 (3d Cir. 1950), for the proposition that 42 U.S.C. § 1983, which refers only to federally created rights, does not protect a state employee’s rights, if any, to reinstatement. These cases are inapposite because the plaintiff in the case before us claims that the state failed to follow the proper procedure for dismissal. Once a state creates the expectation of such procedures before discharge, a procedural due process right arises to protect that expectation. See Board of Regents v. Roth, supra.


author: WALLACE, Circuit Judge:

text:
    Joseph E. BRANNON, Plaintiff-Respondent-Appellee, v. WARN BROS., INC., a California corporation, Individually and doing business as Crescent Truck Lines, et al., Defendants-Petitioners-Appellants.
    No. 73-1367.
    United States Court of Appeals, Ninth Circuit.
    Nov. 29, 1974.

      Richard H. Harding (argued), Littler, Mendelson & Fastiff, San Francisco, Cal., for defendants-petitioners-appellants.
    Eugene B. Shapiro (argued), Shapiro & Maguire Law Corp., Beverly Hills, Cal., for plaintiff-respondent-appellee.
    Before ELY and WALLACE, Circuit Judges, and THOMPSON, District Judge.

       Honorable Gordon Thompson, Jr., United States District Judge, Southern District of California, sitting by designation.

   OPINION

WALLACE, Circuit Judge:

After two separate grievance proceedings, Brannon brought this action in state court against his employer, Warn Bros., Inc., dba Crescent Truck Lines, and George Warn and Frank J. Warn (collectively referred to as Crescent). After the case was removed to the federal district court, Crescent moved to dismiss or, in the alternative, to stay the action pending the outcome of further grievance proceedings. Crescent appeals from the denial of these motions. We dismiss Crescent’s appeal from the order denying its motion to dismiss. We reverse and remand the order denying its motion to stay.

Crescent was a party to certain collective bargaining agreements with Line Drivers Union Local No. 468, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Brannon was a member of Local 468 and was employed by Crescent from February 19, 1968, to March 21, 1971. Three of Brannon’s seven causes of action allege breaches of the collective bargaining agreements between Crescent and Local No. 468. His four remaining claims arise independently of the collective bargaining agreements but concern matters connected with his employment: failure to perform an agreement with Brannon for the replacement of a truck used in the course of Crescent’s business; failure to pay workmen’s compensation benefits; and two counts of failure to pay money due on open account.

Before commencing this action, two grievances were filed by or on behalf of Brannon asserting claims related to those contained in his complaint. The first grievance resulted in a hearing on October 20, 1970, before the California Bay Area Labor-Management Committee (the Joint State Committee), a grievance committee composed of union and trucking association representatives. Because Crescent failed to appear at this hearing, the committee deprived Crescent of the benefit of the grievance provisions of the collective bargaining agreement then in effect. The second grievance also culminated in a hearing before the Joint State Committee on April 20, 1971. The committee dismissed this grievance as untimely filed.

I. Jurisdiction Over the Appeal from the Denial of the Motion to Dismiss

Crescent’s motion to dismiss was founded upon the outcome of the grievance hearing of April 20, 1971. Crescent claims that the dismissal of Brannon’s grievance at that hearing precludes any recovery in the present action. The district court rejected this argument and denied Crescent’s motion to dismiss. An order denying a motion to dismiss is not appealable. Catlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 89 L.Ed. 911 (1945); Spruill v. Cage, 262 F.2d 355, 356 (6th Cir. 1958); C. Wright, Law of Federal Courts § 101, at 453 (2d ed. 1970). We therefore dismiss Crescent’s appeal from this order.

II. Jurisdiction Over the Appeal from the Denial of the Motion to Stay

Crescent also appeals from the denial of its motion to stay the present action pending further grievance proceedings. An appeal lies from an interlocutory order granting or denying a stay if

(a) the action in which the motion for a stay was made could have been maintained as an action at law before the merger of law and equity, and (b) the stay was sought to permit prior determination of an equitable defense or counterclaim.

Danford v. Schwabacher, 488 F.2d 454, 455 (9th Cir. 1973). See 28 U.S.C. § 1292(a)(1). Brannon’s appeal easily satisfies part (b) of this test. “Reliance upon an arbitration agreement to avoid immediate litigation is deemed an equitable defense . . ..” Danford v. Schwabacher, supra, 488 F.2d at 456 (dictum). Part (a) presents more difficulties.

Brannon’s claim for damages for breach of contract (first cause of action) is clearly an action at law. Ross v. Twentieth Century-Fox Film Corp., 236 F.2d 632, 633 (9th Cir. 1956). His claims for damages for fraudulent and malicious breach of contract (third and fourth causes of action) may sound in contract or tort, W. Prosser, Law of Torts 616, 619-20, 685-86 (4th ed. 1971), but in any case they are actions at law. Brannon’s claim for an accounting for damages resulting from Crescent’s breach of the collective bargaining agreements (second cause of action) is equitable. Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955). The pre-merger status of his remaining claims is uncertain. Brannon’s cause of action for workmen’s compensation benefits (fifth cause of action) is neither legal nor equitable but statutory. Danford, supra, 488 F.2d at 456 — 457. His common counts for- money due on open account (sixth and seventh causes of action) may be either legal or equitable. 9 J. Moore & B. Ward, Federal Practice f 110.20 [3], at 242-43 (1973); 5 id. II 38.25 (1974). Judging from Bran-non’s theories of recovery alone, the legal or equitable character of his complaint is difficult to determine. However, the only equitable relief he seeks is the accounting in his third cause of action. He otherwise seeks damages. We, therefore, conclude that Brannon’s action is “basically and predominantly an action at law” satisfying part (a) of the preceding test. Alexander v. Pacific Maritime Ass’n, 332 F.2d 266, 267 (9th Cir.), cert. denied, 379 U.S. 882, 85 S.Ct. 150, 13 L.Ed.2d 88 (1964) (dictum).

III. Merits of the Motion to Stay

The basic question raised by Crescent’s motion to stay is the validity of the hearing of October 20, 1970. A derivative question, but one also before us on this appeal, is whether that question should be decided by the district court or whether it should first be decided through the contractual grievance procedures.

When no representative of Crescent appeared at the hearing of October 20, 1970, the Joint State Committee deprived Crescent of the benefit of the following provision of the collective bargaining agreement:

The Union and the Employers agree that there shall be no strike, lockout, tie-up or legal proceedings without first using all possible means of settlement as provided for in this Agreement and in the National Agreement if applicable of any controversy which might arise.

Western States Over-the-Road Motor Freight Supplemental Agreement of April 1, 1970, to June 30, 1973 (the Western States Agreement), art. 45, § 1. The agreement specifically authorized the Joint State Committee to take this action:

[R]efusal of either party to submit to or appear at the grievance procedure at any stage . . . withdraws the benefits of Article 45 [quoted in part above].

Western States Agreement art. 45, § 1(f).

Crescent claims that it did not receive prior notice of the October 20 hearing, that consequently the hearing is void and that Brannon is relegated to the contractual remedies specified in article 45 of the Western States Agreement. Crescent therefore seeks to stay the present action pending further grievance proceedings. We agree that a stay should issue but not for the reasons suggested by Crescent.

Federal labor policy requires the use of the contractual grievance procedures to the fullest extent possible:

An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960) (footnote omitted). The grievance provisions of the Western States Agreement apply to “any controversy which might arise.” Western States Agreement art. 45, § 1. While we leave the precise scope of this phrase to the district court, we must interpret it at least to include disputes over the interpretation and application of the collective bargaining agreement. See Warrior & Gulf, supra, 363 U.S. at 582-583, 80 S.Ct. 1347.

Whether the October 20 hearing was efficacious cannot be resolved without determining whether the validity of that hearing is still open to dispute and, if so, whether Crescent was given sufficient notice to permit the hearing to proceed. Each of these questions requires interpretation of the collective bargaining agreement. The first requires interpretation of the provisions governing finality of grievance hearings. The second cannot be decided without setting standards for adequate notice of hearings conducted pursuant to the agreement. By referring these questions to the contractual grievance procedures, we follow the requirements of the collective bargaining agreement. We also fulfill our obligation to permit questions of contract interpretation to be decided by those best acquainted with the industrial practices that supplement the agreement. Warrior & Gulf, supra, 363 U.S. at 580-581, 80 S.Ct. 1347; see John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 554-555, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964).

Additional considerations support referral of these questions to the contractual grievance procedures. Collateral attack upon prior grievance hearings is much more easily and quickly accomplished through grievance proceedings rather than litigation. Moreover, review through a second grievance proceeding does not suffer from the limited scope accorded judicial review of grievance awards. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597-598, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Finally, a court can more easily review the validity of a prior grievance proceeding once a grievance committee or arbitrator has fully considered the issue.

We recognize that an employee may bring suit on his grievance if his employer has repudiated the contractual grievance procedures and that the issue of repudiation would normally be for the court in such a case. See Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (dictum); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 875-876 (3d Cir. 1972); Boone v. Armstrong Cork Co., 384 F.2d 285, 289 — 290 (5th Cir. 1967). However, we think that this case presents an extraordinary need for the expertise provided by the grievance process. The question whether Crescent repudiated the contractual grievance procedures depends, at least in part, on whether it received adequate notice of the October 20 hearing. But the standards for adequate notice have yet to be determined by the Joint State Committee. The agreement provides that “[t]he Joint State Committee shall at its first meeting formulate rules of procedure to govern the conduct of its proceedings.” Western States Agreement art. 44, § 1. The arguments of the parties refer us to no rules formulated by the Joint State Committee, and we infer that none have been formulated. Nor does the agreement itself contain any provisions governing adequacy of notice. Furthermore, on the record now before us, we cannot determine whether a de novo resolution of the repudiation issue by the district court would conflict with the October 20 decision of the Joint State Committee. In light of these deficiencies in the record, the question of repudiation would be better resolved after the Joint State Committee has formulated standards for adequate notice.

It might also be argued that the decision of the Joint State Committee following the October 20 hearing contains an implicit finding that Crescent received adequate notice. The transcript of that hearing, however, does not reveal that the committee even considered this issue. This fact distinguishes the present case from Cloak, Shirt & Dressmakers v. Senco, Inc., 69 L.R.R.M. 2142, 2144r-2146 (D.Mass. August 28, 1968), in which the district court deferred to an arbitrator’s conclusion that an absent party had been afforded adequate notice. Absent a determination either that Crescent received adequate notice or that the October 20 hearing finally resolves this question, we cannot hold that Crescent may challenge the validity of the October 20 hearing only through litigation.

Likewise, we cannot accept the argument that the October 20 decision of the Joint State Committee itself prevents any further grievance proceedings. We need not assume the validity of the October 20 hearing when that is the precise point in issue. Our decision today does not overrule the decision of the Joint State Committee and substitute our own view of the merits. See Enterprise Wheel, supra, 363 U.S. at 598-599, 80 S.Ct. 1358. We order a stay only to permit further grievance proceedings on the limited question of the validity of the October 20 hearing. If it is found invalid, then further grievance proceedings would of course be proper. Should that be the case, the October 20 hearing would indeed be overruled but not by judicial decision.

Finally, we require a stay despite the possible untimeliness of a grievance contesting the validity of the October 20 hearing. To obtain a hearing as of right, a grievance must be filed within the 45-day limitation specified in the agreement:

All grievances, claims and disputes shall be submitted to the Joint State Committee within forty-five (45) days of the occurrence of the matter upon which the grievance, claim or dispute is based. Any such grievance, claim or dispute not submitted within such time shall be waived unless the Joint State Committee by majority vote for good cause accepts such submission, or unless either party has intentionally concealed the facts upon which the grievance, claim or dispute is based.

Western States Agreement art. 45, § 1(h). The present action was filed 17 months after the October 20 hearing. Since the validity of the October 20 hearing has never been submitted to the Joint State Committee, a grievance raising this issue may well be untimely. But even assuming that the committee would find such a grievance untimely, it may still accept submission of the grievance for good cause shown. Given the difficult issues of contractual interpretation raised by this case, we think that the Joint State Committee should be given the opportunity to consider the validity of the October 20 hearing.

IV. Scope of the Stay Order

Crescent moved to stay all proceedings in this case. Only three of Brannon’s seven causes of action, however, allege breaches of the collective bargaining agreements between Crescent and Local 468. Although we hold that a stay must issue as to these three causes of action, the four remaining causes of action must be stayed only if they fall within the scope of the contractual grievance procedures; otherwise, they are unaffected by the validity of the October 20 hearing. The parties have not adequately briefed this question on this appeal. Furthermore, upon remand, the district court may decide to stay the entire action in the exercise of its discretion over efficient administration of its docket. We, therefore, leave the scope of the stay order to be determined by the district court.

Dismissed in part; reversed and remanded in part.

      . The parties dispute whether the second grievance was authorized by Brannon.

      . See part IV infra.

      . Where a Joint State Committee by a majority vote settles a dispute, no appeal may be taken to the Joint Western Area Committee. Such a decision will be final and binding on both parties.
      Western States Agreement art. 45, § 1(a).

      . If the Joint State Committee refuses to accept submission of the grievance, the district court will be forced to review the validity of the October 20 hearing according to the standards established by the Supreme Court, United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597-599, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); see Humphrey v. Moore, 375 U.S. 335, 345-351, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), or to decide the issue of repudiation, see Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (dictum). We intimate no view as to disposition of these as yet hypothetical issues.


author: PER CURIAM:

text:
    Wallace Taylor RUTHERFORD, Jr., Petitioner-Appellant, v. Hoyt C. CUPP, Respondent-Appellee.
    No. 74-1664.
    United States Court of Appeals, Ninth Circuit.
    Dec. 4, 1974.
    Certiorari Denied April 21, 1975.
    See 95 S.Ct. 1663.
    Herbert W. Titus, Eugene, Or., for petitioner-appellant.
    Jim G. Russell, Asst. Atty. Gen., State of Or., Salem, Or., for respondent-appel-lee.
    Before CHOY and SNEED, Circuit Judges, and NEILL, District Judge.

       Honorable Marshall A. Neill, United States District Judge, Eastern District of Washington, sitting by designation.

   OPINION

PER CURIAM:

Appellant, a state prisoner, appeals from a denial of his petition for a writ of habeas corpus. His principal contention is that his conviction for possession of marijuana was based in part upon evidence seized in violation of the Fourth Amendment. We disagree.

The search warrant authorized a search of the “premises and residence, if any, located at 37 West Lowell Street,” for marijuana plants. According to Rutherford, the warrant was invalidly drawn because it failed to describe with particularity the place to be searched. Although the description in the warrant may seem imprecise, a warrant is valid as long as the officer executing it can with reasonable effort ascertain and identify the place to be searched. Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925); United States v. Melancon, 462 F.2d 82, 93-94 (5th Cir.), cert. denied 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972). In this case, where the yard searched and the house located at 37 West Lowell St. were within a single fenced enclosure, the warrant’s reference to “premises” was sufficient to draw the officer’s attention to the yard. Cf. United States ex rel. Saiken v. Bensinger, 489 F.2d 865, 867-868 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974).

Appellant also contends the warrant was invalidly issued. According to Rutherford, the warrant’s supporting affidavit, which was based in part on an informant’s statement, failed to provide sufficient information to enable the judge issuing the warrant to make an independent determination of probable cause. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), sets out a two-pronged test. First, the magistrate must be informed of some of the underlying circumstances as to how the informant obtained his information. Here the judge knew the informant, a neighbor of appellant, had seen marijuana plants growing in appellant’s yard, had obtained a sample and had taken it to the police. Thus, the judge could reasonably conclude that the informant’s statement to the affiant-officer was based on personal observation. Secondly, under Aguilar, the magistrate must be informed of some of the underlying circumstances from which the affiant concluded the informant was credible. Here, the circumstances establish reliability. See Ignacio v. People of Territory of Guam, 413 F.2d 513, 519 (9th Cir. 1969), cert. denied 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970). The judge knew the informant was willing to let his name be used, that he was a citizen/neighbor with no apparent ulterior motive, that he had of his own accord brought a sample to the police, and that the sample had proved to be marijuana.

Appellant’s other contentions are without merit. Taking into consideration evidence of the water hose leading from appellant’s house to the plants and the testimony of three witnesses that appellant cared for the marijuana plants, we cannot say the jury acted unreasonably in finding him guilty. See Freeman v. Stone, 444 F.2d 113, 114 (9th Cir. 1971). And we find that the judge’s instruction on possession was a proper statement of the law. See Juvera v. United States, 378 F.2d 433, 436-437 (9th Cir.), cert. denied 389 U.S. 1008, 88 S.Ct. 568, 19 L.Ed.2d 604 (1967).

Affirmed.


author: PER CURIAM.

text:
    James Burl JOHNSON, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
    No. 74-1684.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1974.
    Decided Dec. 5, 1974.
    Steven C. Cross, Des Moines, Iowa, for petitioner.
    George H. Perry, Asst. U. S. Atty., Des Moines, Iowa, for respondent.

      Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, and WEBSTER, Circuit Judge.

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

   PER CURIAM.

Petitioner James Burl Johnson, a prisoner in the Missouri State Penitentiary, appeals from the District Court’s denial of his petition for a writ of habeas corpus. In its memorandum opinion the District Court reviewed the extensive history of petitioner’s successive direct and collateral attacks on his 1954 conviction and forty-year sentence for rape. That history, which includes eight previous federal habeas corpus petitions disposed of in the Western District of Missouri, need not be repeated here. Seven grounds were asserted by petitioner in support of his claim that his conviction and sentence pursuant to Missouri’s habitual criminal statute were unconstitutionally imposed. The court, without a hearing, denied relief as to six of the grounds and dismissed the fifth ground without prejudice because of petitioner’s failure to exhaust his available state remedies.

Having reviewed the record, we affirm th'e District Court’s order for the reasons stated in its extensive memorandum opinion. The six asserted grounds raised and considered on the merits by the District Court were properly rejected by it, and were correctly adjudicated by the state courts in accord with prevailing federal principles. In 1970, after a series of state post-conviction proceedings, petitioner’s conviction and sentence were vacated and remanded by the Missouri Supreme Court for resentencing and to permit petitioner to move for a new trial. In 1954 petitioner had purportedly waived his right of appeal without understanding the consequences of doing so. His trial counsel, as a consequence of this waiver, neither filed a motion for new trial nor pursued a direct appeal on petitioner’s behalf at the time of conviction. On remand in May, 1971, the trial court resentenced petitioner to the same forty-year prison term with credit for time served, and denied his motion for new trial. The conviction and sentence were affirmed by the Supreme Court of Missouri on direct appeal in that court’s fourth published opinion relating to petitioner’s case. State v. Johnson, 485 S.W.2d 106 (Mo.1972). There is no question that Johnson has had his days in court on the claims raised in the instant petition — certainly more days than any other judicial system would grant him. This case is simply another glaring example of the unending flow of successive appeals and repetitive collateral attacks by prisoners which add to the congestion of our judicial system.

In petitioner’s fifth asserted ground he challenged the state’s use of his four allegedly unconstitutional prior felony convictions to enhance his punishment in 1954 under Missouri’s habitual criminal statute. Apparently, however, petitioner has failed to challenge any of those allegedly defective prior convictions in the state courts which imposed them. Under these circumstances, he is not permitted to do so for the first time in federal court. 28 U.S.C. § 2254(b). The court below, therefore, properly dismissed petitioner’s fifth asserted ground because, among other of its defects, the claim was not previously presented to the state courts for review under available remedies.

Judgment denying the petition in part and dismissing it in part without prejudice is affirmed.

Affirmed.

      . The Honorable William H. Becker, Chief Judge, United States District Court, Western District of Missouri. The District Court’s opinion is reported at 381 F.Supp. 747 (W.D. Mo. 1974).

      . In short, he claimed (1) that he was denied a fair trial by the presence and prejudicial conduct of the rape victims during trial; (2) that he was incompetent to stand trial; (3) that he was denied effective assistance of counsel; (4) that the trial court lacked jurisdiction to enter judgment enhancing petitioner’s punishment under the state habitual criminal statute; (5) that the four prior felony convictions used as the factual basis for his habitual criminal sentence were unconstitutionally secured in the state courts and should not have been used to enhance his punishment; (6) that he was denied a fair trial by the prosecutor’s remarks made during the trial and during closing argument; and (7) that he was prejudiced by various other trial irregularities, including certain jury instructions and rulings on evidence.

      . The District Court commented that petitioner’s attempt to challenge the four prior convictions in the instant proceeding was without merit because:
      (1) the record of the convictions is facially regular; (2) petitioner did not raise such an objection in the second trial when such evidence [of the prior convictions] was sought to be admitted; (3) the use of the prior felony convictions may have constituted trial strategy; and (4) there is no evidence of any direct postconviction attack on any of the convictions by means of state postconviction remedies or federal habeas corpus in any state or district of conviction.
      381 F.Supp. at 752 n. 5.
      Moreover, at the date of petitioner’s trial only one valid prior felony conviction was needed to invoke the Missouri habitual criminal sanctions. Mo.Rev.Stat. § 556.280 (1949); Gerberding v. Swenson, 435 F.2d 368, 370 (8th Cir. 1970), cert. denied, 403 U.S. 906, 91 S.Ct. 2211, 29 L.Ed.2d 682 (1971). It might further be noted that the forty-year sentence imposed by the jury was within the permissible range for forcible rape without resort to the habitual criminal act. Mo.Rev.Stat. § 559.260 (1949). We, however, express no opinion on the merits of petitioner’s unexhausted claim.

      ., The 1954 rape conviction which is the subject of the instant petition was obtained in a second trial after petitioner’s first conviction had been reversed on direct appeal. Trial counsel reportedly advised petitioner erroneously that state law permitted no direct appeal after the retrial.


author: CLARK, Circuit Judge:

text:
    SEAFARERS INTERNATIONAL UNION AFL-CIO, Plaintiff-Appellee, v. Louis V. BALDOVIN, Jr., Regional Director, Region 23, National Labor Relations Board, Defendant-Appellant.
    No. 74-3709.

    United States Court of Appeals, Fifth Circuit.
    Feb. 17, 1975.
    Opinion vacated, see 511 F.2d 1161.

      Elliott Moore, Deputy Associate Gen. Counsel, Abigail J. Cooley, Bert Bisgyer, Attys., NLRB, Washington, D. C., Arthur Safos, Regional Atty., Region 23, NLRB, Houston, Tex., for defendant-appellant.
    W. Arthur Combs, Houston, Tex., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       It is appropriate to dispose of this case summarily. See Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158.

   CLARK, Circuit Judge:

Jurisdiction of this action was predicated on the Freedom of Information Act, 5 U.S.C. § 552. On the basis of pleadings and argument of counsel and without examination of the documents involved, the district court ordered the regional director of the National Labor Relations Board (NLRB) to file with the United States Court of Appeals for the District of Columbia his entire file in a proceeding seeking the issuance of a complaint charging an unfair labor practice. This was done to enable the Court of Appeals to determine if any portion of that file was needed to make a final determination in a cause pending before it which sought review of the General Counsel’s refusal to file the requested complaint. Because the order appealed from here is based upon a record which appears to have been inadequately developed and is clearly insufficient to permit our review under the Freedom of Information Act, or in the alternative, is predicated upon an erroneous view of the district court’s power under that Act to assist the United States Court of Appeals for the District of Columbia Circuit, we vacate and remand for further proceedings.

It all started when Seafarers International Union filed an unfair labor practice charge with the NLRB regional director based in the Houston, Texas area within the Southern District of Texas against a marine towing company because of the discharge of one of its members from employment as a crewman on a towing company vessel (23— CA — 5008). When the director refused to issue a complaint on its charge, the Union appealed. The General Counsel of NLRB dismissed that appeal and the Union petitioned the United States Court of Appeals for the District of Columbia Circuit to review that action (Seafarers v. NLRB, No. 74 — 1604). This petition for review was based upon the claim that the Board failed to properly and fairly investigate the charge filed and thereby failed to follow its own rules related to the investigation and processing of such claims. The Union subsequently designated a number of documents to be included in the record before the Court of Appeals. These documents were: (1) the Charge; (2) Letter of Date April 5, 1974, signed by Louis V. Baldovin, Regional Director, 23rd Region, refusing to issue complaint; (3) Agenda Minute (Guts-hall); (4) Final investigative report; (5) Appeal from the refusal of the Regional Office to issue complaint, including letter dated April 15, 1974, and formal appeal document, plus exhibits attached thereto; (6) Letter of date May 23, 1974, signed by Robert E. Auen, Director, Office of Appeals, denying appeal. The Board responded with a motion to dismiss the petition for want of subject matter jurisdiction and took the position that since there was no reviewable agency action before the Court of Appeals the filing of an agency record was unnecessary. The Union then decided to pursue a Freedom of Information Act proceeding in the place where the records it desired were located. It therefore filed the instant action seeking to require the NLRB to produce the subject documentation for its use in connection with the relief sought in the Court of Appeals and thereafter filed an unopposed motion in the Court of Appeals to defer its ruling until the instant case under the Freedom of Information Act was concluded.

A number of the documents originally sought in the Court of Appeals and before the district court have now been furnished by NLRB, but the controversy centers over a claim advanced in the amended complaint in this Freedom of Information Act suit which seeks all affidavits, exhibits, memoranda, notes and records of [NLRB’s] investigation and any and all other data taken or compiled in connection with its investigation of case No. 23 — CA—5008 [the unfair labor practice charge growing out of the union member’s dismissal] and any NLRB attachments to the Union’s appeal.

The Board moved the district court to dismiss. The district court’s order, from which the present appeal is taken, recites that the court is of the opinion that the motion to dismiss should be overruled and that the plaintiff-Union’s request under the Freedom of Information Act should be granted. It, therefore, ordered the Regional Director of NLRB:

to file with the United States Court of Appeals for the District of Columbia in Cause No. 74— 1604, SIU v. N.L.R.B. now pending before said Court, its entire file in said Cause No. 23-CA — 5008 in order that the Court of Appeals may determine what, if any portion of same is needed, in order for it to make a final determination in said cause.

NLRB appealed, and now has moved this court to summarily reverse the district court’s turn-over order. It claims its refusal to disclose the documents demanded is covered by the following exceptions in the Freedom of Information Act:

(b) This section does not apply to matters that are—
* * * * * *
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
^5 sf: * * * *
(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;

5 U.S.C. § 552. The Freedom of Information Act squarely places the burden on the agency to sustain its action in withholding such records as exempt, 5 U.S.C. § 552(a)(3), and therefore a disclosure order after the opportunity for proof had been accorded could be sustained. See Environmental Protection Agency v. Mink, 410 U.S. 73, 89 — 90, 93 S.Ct. 827, 837, 35 L.Ed.2d 119, 133-134 (1973); Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973). However, such a failure to meet the burden of proof does not appear to have been the basis for the court’s action and we are unable to determine from the record before us the applicability of the exceptions claimed. The Board also argues here that the documents sought are not “identifiable” as required by 5 U.S.C. § 552(a)(3). This appellate court is similarly in no position to ascertain the factual merit of this assertion.

The transcript of the colloquy between counsel and the district court at the time of argument indicates that the court may have predicated its action in part upon a spirit of assistance to the Court of Appeals in the District of Columbia. Its order, requiring that the documents sought to be produced before it for examination by the complaining party be instead produced before the Court of Appeals for its determination of what portions it might need, carries a similar implication. However, the jurisdiction of the district court is based entirely upon the Freedom of Information Act. The Supreme Court has recently made it clear that this jurisdiction confers a broad power to effectuate the Act through use of the inherent powers of the court as a court of equity, rather than being limited to an order to produce as expressed in the statute, Renegotiation Board v. Bannercraft Clothing Company, Inc., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974). However, neither the Act nor any court construction of it intimates that such power was granted except to carry out the disclosure purposes intended. When the Union stopped its quest to enlist the aid of the Court of Appeals for the District of Columbia to obtain a proper appendix in a case pending before that court and instead sought to invoke the Freedom of Information Act to serve this end, it acted inappropriately. While the flexibility of remedy required by Bannercraft might literally permit such cross-court production, the Act was not intended to create a redundant power in this district court to require a government agency litigant in the appeals court of the District of Columbia to furnish that latter court with documents from which it can select those needed to exercise its judicial functions.

Accordingly, we vacate the order requiring the NLRB to lodge its entire file with the United States Court of Appeals for the District of Columbia and remand the instant cause to the district court with directions to allow the NLRB to develop an adequate record to permit determination of the proper classification of the information sought and resisted under the Freedom of Information Act, and to thereafter determine the rights of the parties. Because of the unique posture of this proceeding, any such determination on remand, if made after the effective date of the November 21, 1974 amendments to the Act, should be made in light of such amendments.

We do not know how voluminous the materials involved might be. We do, however, note that other courts have encountered procedural problems where an agency response to a broad demand has consisted of blanket claims of exemption, followed by the tender of a bulk of material for in camera inspection. See Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), and Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973); cf. Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973). Such a procedure imposes an unwarranted burden on the court. If it is deemed requisite, the district court may choose to require the parties to assist it in the resolution of the disputed issues by use of any appropriate pre-trial procedures which might sharpen or eliminate such issues, including partial disclosure with protective deletions and agreements as to protected or limited use, and by requiring an organization and explanation of all materials which are tendered for court inspection.

Vacated and remanded with direction.

      . Since briefs have been submitted in this case, the Freedom of Information Act has been amended. On November 21, 1974 Congress overrode President Ford’s veto of the law. It is scheduled to take effect on the ninetieth day after the date of enactment or February 19, 1975. 12 U.S. Code Cong. & Admin. News, p. 5758 et seq. (Dec. 15, 1974), amending, 5 U.S.C. Section 552.

      . The new amendments now vest jurisdiction in the United States District Court for the District of Columbia in addition to the District Court in which the records are located:
      On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District óf Columbia, has jurisdiction
      12 U.S. Code Cong. & Admin. News, p. 5759 (Dec. 15, 1974) [5 U.S.C. Section 552(a)(4)(B)], amending, 5 U.S.C. Section 552(a).

      . This exemption was amended to “clarify Congressional intent disapproving certain court interpretations which have tended to expand the scope of agency authority to withhold certain ‘investigatory files compiled for law enforcement purposes’ ”. Joint Explanatory Statement of the Committee of Conference, 12 U.S. Code Cong. & Admin. News, p. 6227 (Dec. 15, 1974). The amendment reads as follows:
      (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of the record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;”
      12 U.S. Code Cong. & Admin. News, p. 5761 (Dec. 15, 1974). With regard to Exemption (7)(E), the conferees explicitly pointed out in their report that this exemption:
      [S]hould not be interpreted to include routine techniques and procedures already well known to the public, such as ballistics tests, fingerprinting and other scientific tests or commonly known techniques. Nor is this exemption intended to, include records falling within the scope of subsection 552(a)(2) of the Freedom of Information law, such as administrative staff manuals and instructions to staff that affect a member of the public.
      12 U.S. Code Cong. & Admin. News, p. 6227 (Dec. 15, 1974).

      . In the new amendments as well, “the burden is on the agency to sustain its action,” 12 U.S. Code Cong. & Admin. News, p. 5759 (Dec. 15, 1974) [5 U.S.C. Section 552(a)(4)(B)], amending, 5 U.S.C. Section 552(a).

      . The requirement in the original Freedom of Information Act for “identifiable” documents, 5 U.S.C. Section 552(a)(3), has been amended to require instead only those documents which a request for records “reasonably describes”. 12 U.S. Code Cong. & Admin. News, p. 5758 (Dec. 15, 1974) [5 U.S.C. Section 552(a)(3)(A)], amending, 5 U.S.C. Section 552(a)(3). According to the House Report, which was adopted by the conference, this amendment was:
      designed to insure that a requirement for a specific title or file number cannot be the only requirement of an agency for the identification of documents. A “description” of a required document would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort.
      12 U.S. Code Cong. & Admin. News, pp. 6207 and 6222 (Dec. 15, 1974).

      . In reaction to Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the new amendments specifically provide that one of the tools a court “may” use, to decide the applicability vel non of the exemptions provided in Section 552(b) is in camera inspection. 12 U.S. Code Cong. & Admin. News, p. 5759 (Dec. 15, 1974) [5 U.S.C. Section 552(a)(4)(B)], amending, 5 U.S.C. Section 552(a). At the same time, however, the amendments reaffirm Mink by requiring that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection”. 12 U.S. Code Cong. & Admin. News, p. 5671 (Dec. 15, 1974) [5 U.S.C. Section 552(b)], amending, 5 U.S.C. Section 552(b).