author: SETH, Circuit Judge.

text:
    Percy C. and Beverly L. GREGSON, Appellees, v. INTERNAL REVENUE SERVICE et al., Appellants. Karl J. BRAY, pro se, and James H. L. Lawler, pro se, in Class Action, Appellees, v. T. W. ELISON et al., Appellants, v. UNITED STATES of America and Internal Revenue Service, J. M. Walters, Commissioner, et al., Appellants. Gerald L. HENDERSON and Yvonne S. Henderson, Appellees, v. INTERNAL REVENUE SERVICE, Thomas L. Harkness et al., Special Agent for Internal Revenue Service, et al., Appellants. Thomas W. HOOPES and Phyllis A. Hoopes, Appellees, v. INTERNAL REVENUE SERVICE, Tim W. Elison, Special Agent for Internal Revenue Service, et al., Appellants.
    Nos. 72-1713, 72-1714, 72-1723 and 72-1764.
    United States Court of Appeals, Tenth Circuit.
    May 16, 1973.
    Janet P. Spragens, Atty., Tax Division, Dept, of Justice, Washington, D. C. (Meyer Rothwacks and John P. Burke, Attys., Tax Division, Dept, of Justice, Washington, D. C., and Scott P. Cramp-ton, Asst. Atty. Gen., and C. Nelson Day, U. S. Atty., of counsel, with her on the brief), for appellants.
    Leonard W. Burningham, Salt Lake City, Utah (Curtis K. Oberhansly, James S. Lowrie, and J. Wendell Bayles, Salt Lake City, Utah, with him on the brief), for appellees in Nos. 72-1713, 72-1714, and 72-1764.
    Robert Rees Dansie, Murray, Utah, for appellees in No. 72-1723.
    Herbert C. Livsey, Salt Lake City, Utah, for appellee, First Security Bank of Utah, Salt Lake City, Utah, in No. 72-1764.
    Before SETH and HOLLOWAY, Circuit Judges, and KERR, District Judge.
   SETH, Circuit Judge.

This is an appeal by the defendant, Internal Revenue Service, seeking to have dissolved the preliminary injunctions in each of the several cases consolidated for argument before this court.

Appellees are all taxpayers seeking to enjoin the Internal Revenue Service from obtaining by summons records of their accounts at banks where they have been doing business. Some allege that they are members of an organization known as the Tax Rebels of America, and have spoken out in favor of abolishing the income tax and the Internal Revenue Service, and that because of this they are being harassed and an attempt is being made by the IRS to intimidate them in violation of their First Amendment right of freedom of speech. The appellees Henderson do not apparently belong to such an organization and have independently asserted a right to the privacy of the records short of a court order.

The District Court granted appellees a preliminary injunction in each of the captioned cases, and set the matter down for hearing. However, before that hearing could take place, the IRS took this appeal. As a result, the trial court never had an opportunity to have the parties develop the facts as it planned to do.

The preliminary injunctions were issued after a limited hearing at which both appellants and appellees were represented, but no findings of fact or reasons for issuance were incorporated in the order granting the preliminary injunction, nor were any reasons separately set out. For this reason, the preliminary injunction in each of the cases fails to comply with the requirements of Rule 65(d), Fed.R.Civ.P., which states:

“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, . . . . ”

See Farrell v. Danielson, 296 F.2d 39 (9th Cir.).

It is, therefore, necessary to dissolve the injunctions and reverse and remand the actions to give the trial court an opportunity to further consider the matter. The sole argument advanced by the IRS on this appeal is that under no circumstances would it be proper to enjoin it from issuing summons for the production of the records of a taxpayer’s bank transactions, even in the face of violation of the taxpayer’s constitutional rights. This is an open question which we do not reach, nor do we decide the nature of the taxpayers’ interest in the bank records.

The injunctions are each dissolved, and the cases are each reversed and remanded for such proceedings as the trial court deems proper.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lewis Clyde MAY, Defendant-Appellant.
    No. 73-1069
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 14, 1973.

      Frank W. Riggs, John W. Davis, III, Montgomery, Ala., for defendant-appellant.
    Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

The only issue raised by appellant in this direct criminal appeal from his conviction of operating an illegal whiskey still in violation of 26 U.S.C.A. §§ 5601 (a)(1), 5601(a)(7), 5604(a)(1), is that the trial Judge’s cross-examination of one of the defense witnesses constituted a departure from his role of impartiality and deprived the defendant of a fair trial. Having made a careful study of the transcript of testimony and the Judge’s charge to the jury, we find no error.

Defendant’s co-conspirator Frank Howard was the government’s key witness. In an attempt to impeach his testimony, the defense called defendant’s former counsel Ted Hoffmann to the stand. Mr. Hoffmann testified that Howard had previously given him a written, sworn statement exonerating defendant from any involvement in the illegal whiskey operation. At the conclusion of the direct examination, and upon the government’s failure to cross-examine, the Court asked six questions to clarify the witness’s relationship to the defendant and the circumstances surrounding the sworn statement.

We cannot say that this minor interrogation deprived the defendant of a fair trial in any manner.

Affirmed.

      . The entire colloquy between the Court and Witness Hoffmann was as follows:
      THE COURT: Cross.
      MR. SEGREST: I have no questions of Mr. Hoffmann.
      THE COURT: Wait a minute. Who lined this appointment up for you? He didn’t just come to you; who — who lined it up?
      WITNESS: I told Mr. Clyde May that we needed to get a statement, I thought, from—
      THE COURT: Are you one of the lawyers for May?
      WITNESS: —Frank Howard. I was at that time ; yes, sir; I am not at this time.
      THE COURT: All right; and you were a lawyer for him then ?
      WITNESS : At the time I took the statement, I was hjs attorney; yes, sir.
      THE COURT: And you told Clyde May what?
      WITNESS : I told Clyde May that I needed to get a statement from Frank Howard, and Clyde May said well, he could get him, and they could meet us at the courthouse.
      THE COURT: Was Clyde May with him when—
      WITNESS: Clyde May was with him at the time he was — he gave the statement; yes, sir.
      THE COURT: And the time you talked to him, was Clyde May there?
      AVITNESS : At all times at the time that I talked with—
      THE COURT: I don’t have any more questions.
      [Appendix at 91-92].

      . Our conclusion in this regard is also supported by the careful instructions which the trial court gave to the jury concerning his own participation in asking questions, the ability to impeach a witness by prior inconsistent statements, and the testimony of an accomplice [appendix at 123-124]. The jury had not only Mr. Hoffmann’s testimony, but also a copy of the prior sworn statement of Howard when it considered the case. Obviously, the jury credited Howard’s testimony and discredited prior statement. And there it ends.


author: PER CURIAM :

text:
    Raymond ROSS, Appellant, v. Walter E. CRAVEN, Appellee.
    No. 72-2814.
    United States Court of Appeals, Ninth Circuit.
    May 4, 1973.
    Raymond Ross, in pro. per.
    Evelle J. Younger, Atty. Gen., S. Clark Moore, Russel Iungerich, Cynthia Wald-man, Deputy Attys. Gen., Los Angeles, Cal., for appellee.
    Before HUFSTEDLER, TRASK and CHOY, Circuit Judges.
   PER CURIAM :

Ross’s federal habeas petition was dismissed on the ground that he failed to exhaust his state remedies. Ross pursued his direct attack through the California appellate system to a denial of hearing by the California Supreme Court. His habeas petition filed in the California Supreme Court was denied on the merits. He had no more state remedies.

The dismissal order appears to have been based on two erroneous assumptions : (1) Ross did not exhaust his state collateral remedies because he filed his habeas petition in the California Supreme Court instead of in a state trial court, and (2) the California Supreme Court in denying his habeas petition did not reach the merits of his contentions.

The California Supreme Court, as well as lower California courts, has original jurisdiction to entertain habeas petitions. (Cal.Const. art. 6, §§ 4, 4b, 5.) If it chooses to retain a habeas petition rather than to refer it to a lower court, its disposition of the petition on the merits ends state habeas attack. Federal court interference with this state procedure and with the exercise of the California Supreme Court’s discretion is an impermissible breach of comity.

In his habeas petition to the California Supreme Court, Ross - challenged his conviction on four grounds. In substance, the same issues were raised in his federal habeas petition. The California Supreme Court did not deny the petition without explanation, as it did in Castro v. Klinger (9 Cir. 1967) 373 F.2d 847. It cited In re Waltreus (1965) 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001; In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513; People v. Wilson (1963) 60 Cal.2d 139, 152, 32 Cal.Rptr. 44, 383 P.2d 452, and § 1074 of the California Penal Code. These authorities answer Ross’s contentions adversely to his claims, covering specifically denial of a speedy trial, insufficiency of the evidence to support the verdict, juror bias, and permitting collateral attack to serve as a second appeal. The citations were as effective in disposing of the merits as would have been a full dress opinion. The California Supreme Court’s disposition of the petition in this manner forecloses any speculation by the federal court that the denial was based on some state procedural irregularity or defect.

Federal courts should avoid the temptation to postpone confronting the merits of federal habeas applications by needlessly returning petitioners to the state courts. Overburden on both federal and state systems is thereby increased. We are mindful of the United States Supreme Court’s admonition that federal courts must not encourage repetitious applications to state courts in the guise of requiring petitioners to exhaust state remedies. (Wilwording v. Swen-son (1971) 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418).

The order is vacated and the cause is remanded to the district court for further proceedings consistent with the views herein expressed.


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Roger Morris THUNDERSHIELD, Appellant.
    No. 72-1688.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 16, 1973.
    Decided April 25, 1973.

      David L. Bergren, Ft. Pierre, S. D., for appellant.
    David R. Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge.

       District of North Dakota, sitting by designation.

   HEANEY, Circuit Judge.

Roger Morris Thundershield was convicted of transporting a stolen vehicle in interstate commerce, knowing the vehicle to have been stolen, in violation of 18 U.S.C. § 2312. His counsel contends that there was insufficient evidence to support the conviction, and that the prosecutor’s closing argument violated Thunder-shield’s constitutional rights. Thunder-shield filed a separate brief in which he contends that his counsel did not represent him properly at trial in that he failed to call witnesses who could have established his innocence. Counsel and Thundershield both request a reversal of the conviction. Thundershield asks, in the alternative, that he be given a new trial.

We affirm the conviction. The record shows that a maroon 1968 Dodge Dart, owned by Joseph Denton, was stolen from a parking lot in Billings, Montana, on October 22, 1971. The automobile had Montana license plates. In the car at the time of the theft were boxes of groceries and fishing equipment. Denton did not know the defendant, nor had he given him permission to drive his car. On October 24, 1971, the defendant was seen in the possession of a maroon 1968 Dodge Dart in Little Eagle, South Dakota, by two witnesses. Both observed fishing equipment in the car, and one observed groceries in the car. The defendant wrecked the car later the same day and, thereafter, offered to sell it to one of the two witnesses for $50.00. He could not produce a title to it. The defendant told both witnesses that he had recently been in Montana. The serial number on the wrecked ear established that it was the car owned by Denton.

At the close of the case, the court instructed the jury, without objection, that

“ * * * possession in one state of property recently stolen in another state, if not satisfactorily explained, is ordinarily a circumstance from which the Jury may reasonably draw an inference and find in the light of surrounding circumstances, shown by the evidence in the case, that the person in possession not only knew it to be stolen property, but also transported it or caused it to be transported in interstate commerce.”

Counsel argues that the evidence with respect to the defendant’s possession was so unclear that the instruction should not have been given and that in any event, the facts do not support an inference that the defendant transported the car or knew that it was stolen. We disagree. The defendant’s possession of the ear two days after it was stolen was clear and unequivocal. It justified the instruction. Moreover, the testimony as a whole clearly permitted the jury to infer that the defendant had transported the ear in interstate commerce knowing that it had been stolen. See, United States v. Rhodes, 433 F.2d 1307 (8th Cir. 1970); Kramer v. United States, 408 F.2d 837 (8th Cir. 1969); Pigman v. United States, 407 F.2d 237, 240 (8th Cir. 1969).

We find no merit to the contention that the prosecutor’s argument violated Thundershield’s constitutional rights. The prosecutor stated:

“You remember the instruction I anticipated in my opening statement, this instruction that states that you can find in the light of surrounding circumstances, unless there is satisfactory explained [sic]- — and I have not heard them satisfactory [sic] explain it under that instruction. He criticizes Mrs. Dogg. Mrs. Dogg testified — and Marvin Dogg did not testify that Roger didn’t tell his mother and he said he didn’t hear him tell his mother, and Mrs. Dogg told what she remembered and she said that he said, T came from Montana.’ And she remembers the boxes of groceries in the back seat, the fishing gear, Rod Singer’s ranch near Glencross, and the same thing was told. Now, it’s easy for Defense Counsel to criticize the FBI of something like this, and he claims the FBI put words in her mouth. Did you see any FBI agents here testifying? No. Mrs. Dogg was called because she was the one that heard it. Mr. Singer was called because he is the one that heard it. And all of these people saw them with the car. There is no satisfactory explanation present of that car. It can only lead to one conclusion, and that is that the Defendant is guilty of the crime charged.”

No objection was made to this argument by counsel for the defendant, nor did he make a motion for mistrial. Under such circumstances, we can only set aside the conviction if there was plain error. See, Patterson v. United States, 361 F.2d 632, 636 (8th Cir. 1966). We find no such error here. It is appropriate for a prosecutor to point out that possession has not been adequately explained in his closing argument so long as he refrains from commenting on the defendant’s failure to take the stand. See, United States v. Davis, 437 F.2d 928 (7th Cir. 1971).

We are left with the defendant’s argument that he was denied effective counsel because of his attorney’s knowing failure to present evidence that the defendant was never in Montana. This claim must be first considered in District Court, as the defendant relies on alleged facts outside of the present record. 2*An appropriate way to proceed is by way of 28 U.S.C. § 2255. See, Morgan v. United States, 396 F.2d 110 (2nd Cir. 1968). See generally, C. Wright, Federal Practice and Procedure: Criminal, §§ 594, 595. We express no opinion as to the merits of such a claim, but note that under § 2255:

“ * * * Inadequate representation by counsel is a ground for relief only if the deficiencies of counsel were so serious that defendant did not have ‘the effective assistance of counsel’ in the ' constitutional sense.” (Footnote omitted.)

C. Wright, supra at § 594, p. 602.

Affirmed.

      . See Lustiger v. United States, 386 F.2d 132, 142 (9th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1042, 19 L.Ed.2d 1142 (1968).

      . A list of law review articles discussing the various proceedings in which the claim of ineffective counsel may be brought is found in Grano, The Right to Counsel: Collateral Issues Affecting Due Process, 54 Minn.L.Rev. 1175, 1241, n. 318 (1970).


author: PER CURIAM.

text:
    Donald HUDSON et al., as representative of a class of all students at Southwestern State College, seeking to form an organization entitled “Viet Nam Veterans Against the War” and/or “Students Against the War,” Plaintiffs-Appellants, v. Al HARRIS, Individually and as President of Southwestern State College, and Fred G. Janzen, Individually and as Dean of Students of Southwestern State College, Defendants-Appellees.
    No. 72-1366.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 12, 1973.
    Decided May 9, 1973.
    Stephen Jones, Enid, Okl. (Michael P. Atkinson, Enid, Okl., on the brief), for plaintiffs-appellants.
    C. Larry Pain, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen., Oklahoma City, Okl., on the brief), for defendants-appel-lees.
    Before HILL and HOLLOWAY, Circuit Judges, and TEMPLAR, District Judge.
   PER CURIAM.

This appeal is from the Western District of Oklahoma for summarily dismissing appellants’ civil rights action. Appellants bring this class action as representatives of a class of students at Southwestern State College in Oklahoma who undertook the formation of two organizations entitled “Viet Nam Veterans Against the War” and “Students Against the War.” Appellees are the college president and the dean of students who rejected appellants’ applications for the antiwar organizations.

Southwestern State College is a public, tax-supported institution of higher learning maintained by the State of Oklahoma at Weatherford, Oklahoma. The appellants were students at Southwestern State who opposed the United States’ policies in Southeast Asia. On two separate occasions appellants submitted applications to appellees requesting permission to establish an antiwar organization on campus. The applications were submitted pursuant to Southwestern State College regulations requiring any new organization on campus first to secure permission from the dean of students. On both occasions they received a letter from the dean denying their request. The reason behind the denials was “that we do not see a specific need for an organization of this type. We feel that the organization and functions of the Student Association permits all students to express their concerns in a constructive manner.”

Appellants thereafter brought suit in federal court claiming jurisdiction under the First, Ninth and Fourteenth Amendments to the United States Constitution and 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1983. They also requested a temporary and permanent injunction prohibiting appellees from refusing to approve their proposed organizations as formal student groups. They also demanded a declaration that Southwestern State College as operated by appellees is violative of the Fourteenth Amendment’s due process and equal protection clauses because guidelines for approval of campus organizations are vague and overbroad.

Appellants support their contentions by the following argument. Forty-seven honorary and professional organizations operate on the Southwestern State campus. Many of these organizations, such as the Oklahoma Young Republicans and Oklahoma Young Democrats, are at least in part political organizations. Many other organizations, such as Southwestern State Collegiate Farmers Union, take positions on political issues. Discrimination is also prevalent in the privileged status given certain off-campus organizations. For example, the Armed Forces are permitted to recruit on campus while antiwar organizations are denied use of the campus to solicit memberships and opposition to the Viet Nam war.

Appellees moved to dismiss the complaint on the ground no constitutional right of appellants had been denied, only the privilege of recognition. The motion was granted. It was the trial court’s position that college regulations are matters for the legislature rather than the judiciary and only when school administrators act fraudulently, capriciously or arbitrarily may the judiciary interfere with administration of school affairs; that no constitutional right had been denied because neither freedom of expression nor advocacy of individual beliefs had been impeded; and that appellants had not been deprived of any federally protected right under color of state law, therefore are not entitled to proceed in federal court.

We cannot agree with the trial court’s position in light of the recent Supreme Court decision in Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). In Healy, a group of college students organized a “local chapter” of Students for a Democratic Society (SDS) and filed a request for official recognition as a campus organization. Although the SDS representatives stated they would not affiliate with the national SDS but would remain completely independent, the college president denied the application saying the organization’s philosophy was not in accord with school policies. The Supreme Court, in holding for the SDS group, stated that First Amendment rights are available to students while on school premises. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Healy v. James, supra at 180, 92 S.Ct. at 2346, quoting Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). The Court there also determined that governmental action denying rights and privileges of a citizen’s association merely because it is an unpopular organization cannot be sanctioned. See also United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967).

We realize schools operate under unique circumstances and thus denial of approval should not be limited to acts of a criminal nature. “Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes or substantially interfere with the opportunity of other students to obtain an education.” Healy v. James, supra at 189, 92 S.Ct. at 2350. The test to be applied is whether such an organization would substantially and materially interfere with the discipline necessary to operate the college. Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966).

At this stage of the proceedings we cannot determine whether appellants’ organizations will substantially and materially interfere with the operation of Southwestern State College. There were no allegations of such fact in appellees’ motion to dismiss. We must therefore follow the rule that a claim for relief should not be dismissed unless it appears beyond a reasonable doubt that appellants can prove no set of facts supporting their claim for relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). On the face of appellants’ complaint it appears their constitutional rights have been violated and thus it was error to grant a motion to dismiss.

The order granting the motion to dismiss is set aside, and the case is remanded to the trial court for further proceedings consistent herewith.

      . The trial judge did not have the benefit of this case because the judgment appealed from was entered on March 29, 1972, and the Healy case was not decided until June 26, 1972.


text:
    Julius SPOON and Annette Spoon, Plaintiffs-Appellants, v. WALSTON & CO., INC., Defendant-Appellee.
    No. 72-1858.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 6, 1973.
    Decided May 10, 1973.

      Elwood S. Simon, of Sehlussel, Lifton, Simon, Rands & Kaufman, Detroit, Mich., for plaintiffs-appellants.
    George H. Zinn, Jr., of Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for defendant-appellee.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and YOUNG, District Judge.

       Honorable Don J. Young, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

This is an action by appellants, stock purchasers, against a brokerage firm for damages resulting from a violation of a regulation promulgated by the Board of Governors of the Federal Reserve System pursuant to § 7 of the Securities & Exchange Act of 1934, 15 U.S.C. § 78a et seq. Reference is made to the comprehensive opinion of District Judge John Feikens reported at 345 F.Supp. 518 (E.D.MicK1972) for a recitation of the pertinent facts.

The District Court found that the broker violated the Securities & Exchange Act and Regulation T by making false statements to the New York Stock Exchange in obtaining extensions of time to bring the margin account of appellants up to the required level.

The amount of loss suffered by appellants was $9,136.55. The District Judge allowed recovery of one-half of this loss, $4,568.27, holding that appellant Julius Spoon actively participated in the false statements to the Stock Exchange and in the events which caused the loss. The District Court granted rescission of the contract, but allowed recovery of only one-half of the damages, saying:

“The court emphasizes that this award is made upon an equitable basis, the court being convinced that this is a just and fair result. The disposition is based, in part, on observation of the witnesses — most of them parties — and the conclusion that neither party’s statement of facts is true. Likewise, neither party is wholly culpable, and neither party is without fault in an equitable sense.” 345 F.Supp. at 522.

We agree with the Second Circuit that Congress intended for the loss in transactions of this type generally to fall upon the broker.V Pearlstein v. Scudder & German, 429 F.2d 1136 (2d Cir. 1970), cert. denied, 401 U.S. 1013, 91 S.Ct. 1250, 28 L.Ed.2d 550 (1971). Cf. Avery v. Merrill Lynch, Pierce, Fenner & Smith, 328 F.Supp. 677 (D.D.C.1971). See also,, 71 Columbia L.Rev. 1521 (1971). 1 Ordinarily the broker will be held liable'for all of the damages, rather than one-half of the damages as awarded in the present case.;1

We cannot say, however, under the facts of this case that the District Court committed reversible error in applying principles of equity and rendering judgment on an equitable basis. Rescission is an equitable remedy. We find nothing in the Act of Congress, the legislative history or Regulation T which precludes the District Court, in an appropriate case, from allowing less than a one hundred per cent recovery on equitable principles. In our opinion, the facts of the present case present an appropriate situation for an award based on equitable principles.

Affirmed. No costs are taxed. All parties will bear their own costs.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    AEROJET-GENERAL CORPORATION, an Ohio corporation, Plaintiff-Appellee, v. The AMERICAN ARBITRATION ASSOCIATION, a New York corporation, Defendant-Appellee, Non-Ferrous Metal Refining, Ltd., an Israeli corporation, Defendant-Appellant.
    No. 71-2565.
    United States Court of Appeals, Ninth Circuit.
    April 30, 1973.

      Melvyn B. Fliegel (argued), Irving L. Halpern, Schwartz & Alschuler, Los Angeles, Cal., for defendant-appellant.
    Orville O. Orr, Jr. (argued), John G. Wigmore, Lawler, Feliz & Hall, Bruce A. Bevan, Jr., Musick, Peeler & Garrett, Los Angeles, Cal., for appellees.
    Before DUNIWAY and WRIGHT, Circuit Judges, and LINDBERG, District Judge.

       Of the Western District of Washington.

   EUGENE A. WRIGHT, Circuit Judge:

The plaintiff-appellee Aerojet contracted with defendant-appellant NonFerrous in 1969 and 1970 to engage in a commercial venture in Israel. Aerojet, an Ohio corporation, has its principal place of business in the Central District of California. Non-Ferrous, an Israeli corporation, has its principal place of business there. Each contract provided that any dispute arising thereunder was subject to arbitration in accordance with the rules of the American Arbitration Association (AAA).

A dispute involving a $30,000,000 contract arose in November 1970. NonFerrous requested arbitration in New York. Aerojet responded with a lawsuit in the state court of New York seeking to enjoin the proposed arbitration on the ground that it had been fraudulently induced to enter into the contract calling for arbitration. An ex parte stay of arbitration was vacated in March 1971 when the New York court ordered the parties to proceed with arbitration. This order was affirmed on appeal on June 10, 1971.

After the final decision in the New York action was rendered, Aerojet, by letter to the AAA, objected-to New York as the locale and gave reasons for holding the arbitration in Los Angeles. Non-Ferrous responded with a statement on behalf of its own choice of New York.

On July 12, 1971, the AAA concluded that the arbitration should be held in New York. Aerojet objected and requested review of the decision by the Association’s Executive Vice President. When the latter reaffirmed the designation Aerojet immediately sued in the district court in California. On July 21, 1971 Aerojet obtained an ex parte order temporarily restraining the AAA from conducting the arbitration in New York.

Aerojet’s amended complaint in the district court based jurisdiction on diversify of citizenship [28 U.S.C. § 1332]. It set forth the facts substantially as we have outlined them, but charged the AAA with arbitrary and unreasonable conduct in its selection of New York as the locale for arbitration.

“in that New York City bears no relationship to either the dispute between plaintiff and Non-Ferrous nor the parties and witnesses nor the making and performance of the aforesaid contracts; and, that the proper locale in which to proceed with the arbitration is an agreeable location within this District. . . .” [p. 4, Amended Complaint]

There followed a statement that Aero-jet and its witnesses would find it more convenient to arbitrate in Los Angeles than in New York. The AAA replied to the motion for preliminary injunction with affidavits of its officers, giving reasons for fixing New York as the locale for arbitration.

After the hearing in the district court the AAA and Non-Ferrous were enjoined from proceeding to arbitrate in New York “pending the trial of the cause on its merits.” This was on August 12, 1971. Non-Ferrous appealed this order [28 U.S.C. § 1292(a)(1).]

I.

Our first question is whether judicial scrutiny of arbitration proceedings is ever appropriate prior to the rendition of a final arbitration award. If not, then the order of the district court must be reversed irrespective of the merits of the AAA’s decision.

The use of arbitration as a means of settling disputes has been accorded specific Congressional endorsement in the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and should be encouraged by the federal courts. Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942). It is apparent, therefore, that judicial review prior to the rendition of a final arbitration award should be indulged, if at all, only in the most extreme cases. The basic purpose of arbitration is the speedy disposition of disputes without the expense and delay of extended court proceedings. Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577 (2d Cir. 1967). To permit what is in effect an appeal of an interlocutory ruling of the arbitrator would frustrate this purpose.

For this reason it has been held that court review of evidentiary rulings should not be had before a final award has been rendered. See Compañía Panemena Maritima v. J. E. Hurley Lumber Co., 244 F.2d 286 (2d Cir. 1957). Cf. Application of Katz, 3 A.D.2d 238, 160 N.Y.S.2d 159 (1957).

On the other hand a ruling fixing the place for hearing may cause irreparable harm to one or more of the parties. As this court noted in Pacific Car & Foundry v. Pence, 403 F.2d 949 (9th Cir. 1968), error in denying a change of venue cannot effectively be remedied on appeal from the final judgment. Extreme cases can be imagined in which the choice of locale for arbitration is not made in good faith and severe irreparable injury is inflicted on one or more of the parties. In such case the courts should be free to prevent a manifest injustice. For this reason we decline to hold that immediate judicial review of a ruling setting the place for arbitration is never justified. Cf. Pacific Car & Foundry, Inc. v. Pence, supra. Only an extreme case could warrant such judicial review, and this is emphatically not such a case.

II.

Nor do we feel that the language in the AAA’s Commercial Arbitration Rules that its determination as to locale is “final and binding” precludes a limited inquiry into whether that determination was made in accordance with a minimum standard of fair dealing. While it has been held that parties to an arbitration can agree to eliminate all court review of the proceedings, Gramling v. Food Machinery & Chemical Corp., 151 F.Supp. 853 (D.S.C.1957), the intention to do so must clearly appear. Payne v. SS Tropic Breeze, 423 F.2d 236 (1st Cir. 1970).

Ordinary language to the effect that the decisions of the arbitrator shall be “final and binding” has D&en held not to preclude some judicial review. Goodall-Sanford, Inc. v. United Textile Workers, 233 F.2d 104 (1st Cir. 1956). As the Fifth Circuit has stated, “ ‘Finality’ is a mirage if relied upon to preclude any judicial review of an arbitration award. . ” Brotherhood of Railroad Trainmen v. Central of Georgia Railway Co., 415 F.2d 403, 412-413 (1969).

III.

Having concluded that some judicial scrutiny of the arbitrator’s choice of locale was appropriate we must consider whether the court was justified in granting an injunction against the arbitration proceedings prior to a trial of the facts. Aerojet argues that the preliminary injunction was proper because it was likely that the determination of the arbitrator would be set aside as “arbitrary and capricious.” We disagree.

In the first place we doubt that that the standard Aerojet would have us apply is the proper standard of review. Aerojet’s contentions amount to no more than a lengthy statement that the AAA acted erroneously in choosing New York over Los Angeles as the situs for the arbitration. The “correctness” of the abitrator’s rulings is not a proper concern of the reviewing court. Amicizia Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 184 F.Supp. 116 (S.D.N.Y.1959), aff’d 274 F.2d 805 (2d Cir. 1960). See also Lundgren v. Freeman, 307 F.2d 104 (9th Cir. 1962).

An arbitration award must be upheld unless it be shown that there was partiality on the part of an arbitrator, Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968), or that the arbitrator exceeded his authority, Orion Shipping & Trading Co. v. Eastern States Petroleum Corp. of Panama, S.A., 312 F.2d 299 (2d Cir. 1963), or that the award was rendered in “manifest disregard of the law.” Trafalgar Shipping Co. v. International Milling Co., 401 F.2d 568, 572 (2d Cir. 1968).

There is no allegation that any such state of facts existed; nor is it at all likely that Aerojet could have proved such facts even if they had been properly alleged. Indeed, even if we applied something akin to the “clearly erroneous” test that Aerojet requests, we would still uphold the AAA’s decision. In view of the factors recited by representatives of the association in support of its choice of New York the selection was entirely reasonable. Cf. Reed & Martin, Inc. v. Westinghouse Electric Corp., 439 F.2d 1268 (2d Cir. 1971).

IV.

This is an equity case, and it is well established that in such a case, although a reviewing court will usually decide only those issues which are necessary to dispose of an appeal, an interlocutory appeal brings the entire case before the court. Thus, in equity cases “[i]f insuperable objection to maintaining the bill clearly appears, it may be dismissed and the litigation terminated.” Deckert v. Independence Shares Corp., 1940, 311 U.S. 282, 287, 61 S.Ct. 229, 232, 85 L.Ed. 189. Accord, Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 52-53, 58 S.Ct. 459, 82 L.Ed. 638; Denver v. New York Trust Co., 1913, 229 U.S. 123, 136, 33 S.Ct. 657, 57 L.Ed. 1101; Mast, Foos & Co. v. Stover Mfg. Co., 1900, 177 U.S. 485, 494-495, 20 S.Ct. 708, 44 L.Ed. 856; Johnson v. England, 356 F.2d 44, 46 n. 1 (9 Cir., 1966). At least one Court of Appeals has exercised this power to enter judgment for an appealing plaintiff. Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67, (2 Cir., 1966). Moore believes that this is entirely proper in certain cases. 9 J. Moore, Federal Practice If 110.25[1] at 273 (2d ed. 1972). Normally this power is used to review other, nonappealable orders of the district court, such as the denial of a motion to dismiss.

Both the AAA and Non-Ferrous asked the district court to dismiss the complaint at the hearing on the motion for a preliminary injunction but neither of them made a motion to dismiss and the district court did not discuss the matter. However, the power to dispose of the whole case is not restricted to such situations.

In Mast, Foos, & Co. v. Stover Mfg. Co., supra, a patent case, the Supreme Court held:

“Does this doctrine apply to a case where a temporary injunction is granted pendente lite upon affidavits and immediately upon the filing of a bill ? We are of opinion that this must be determined upon the circumstances of the particular case. . . . [I]f there be nothing in the affidavits tending to throw a doubt upon the existence or date of the anticipating devices, and giving them their proper effect, they establish the invalidity of the patent; or if no question be made regarding the identity of the alleged infringing device, and it appear clear that such device is not an infringement, and no suggestion be made of further proofs upon the subject, we think the court should not only overrule the order for the in j unction, but dismiss the bill.” 177 U.S. at 495, 20 S.Ct. at 712.

See also Denver v. New York Trust Co., supra.

This reasoning supports an order dismissing Aerojet’s complaint. The affidavits filed in connection with the motion for a preliminary injunction do not conflict in any material respect. Rather, they establish that both parties will be inconvenienced in terms of transporting records and witnesses if the arbitration is held in New York, that Aerojet would not incur such expenses if the arbitration were held in Los Angeles while Non-Ferrous’ burden would be increased, and that the AAA took these and other factors into account in making its decision.

The only factual showing that could conceivably strengthen Aerojet’s case would be that its two non-employee witnesses definitely would not go to New York. However, “no suggestion [has been] made of further proofs upon the subject.” Moreover, Aerojet concedes that Israel would be a rational location, and if the witnesses would not go to New York, presumably they would not go to Israel either.

In sum, there is no material factual dispute in the ease, and under the standard of review that we have set out in Part I of this opinion, Non-Ferrous and the AAA would clearly be entitled to judgment as a matter of law should they so move. Under Mast, Foos & Co., it is appropriate for us to terminate the litigation now.

V.

Our mandate issued on April 2, 1973 following our order which read:

“The order of the district court is reversed and the preliminary injunction is dissolved. An opinion will follow.”

Upon issuance of the mandate, the Court of Appeals loses control of the judgment except for its power to recall the mandate. Meredith v. Fair, 5 Cir., 1962, 306 F.2d 374, 376. However, we can and do exercise that power here.

The authority of a Court of Appeals to recall its mandate is not conferred by statute, but its existence cannot be questioned. Greater Boston Television Corp. v. F. C. C., 149 U.S.App.D.C. 322, 463 F.2d 268, 277, 1971; Meredith v. Fair, supra,, 306 F.2d at 378 Broadly stated, this authority may be exercised for “good cause” and to “prevent injustice,” and one of the classic examples of such circumstances is where the mandate does not fully express the intentions of the court. Greater Boston Television Corp. v. F. C. C., supra, 463 F.2d at 277-278. Thus, in Meredith v. Fair, supra, the Court of Appeals directed the district court to “issue [the injunction] as prayed for in the complaint.” Subsequently, after dissolving an improperly granted stay, the court concluded that its instructions were too general, sua sponte recalled the mandate, and set out in detail the relief to be granted. 306 F.2d at 378-379.

Similarly, our March 8, 1973 order is incomplete, and does not fully express our intentions. We will therefore recall the mandate to make its disposition of the case complete.

CONCLUSION

It is ordered that:

1. The mandate is recalled.

2. This court’s judgment is modified to read:

The order of the district court is reversed and the preliminary injunction is dissolved. The action shall be dismissed with prejudice and the mandate shall issue forthwith.

      . Section 10, Commercial Arbitration Rules provides:
      “§ 10. Fixing of Locale — The parties may mutually agree on the locale where the arbitration is to be held. If the locale is not designated within seven days from the date of filing the Demand or Submission the AAA shall have power to determine the locale. Its decision shall be final and binding. If any party requests that the hearing be held in a specific locale and the other party files no objection thereto within seven days after notice of request, the locale shall be the one requested.”

      . The affidavit of Donald T. Cahill, Assistant to the Executive Vice President of the AAA, stated:
      “ (a) Claimant’s [Aerojet’s] initial demand for arbitration . . . was filed in the New York Regional Office of the Association and the respondent [Non-Ferrous], seeking an order staying the arbitration proceedings, filed motion papers in the New York courts, at first instance in the Supreme Court of New York County, Special Term Part 1, and later on appeal to the Supreme Court, Appellate Division, First Department . . . Thus, the New York jurisdiction was the location to which the parties addressed themselves from the very beginning of the case.
      “(b) The fact that the parties agreed in their contract that the law of California would apply and govern their ease, is not conclusive on the locale of the hearing. If the arbitration is held in New York, the arbitrators can still apply California law.
      “(c) While it is true respondent, its Divisions, Officers and employees are located in California, consideration was given to the fact that the claimant is based in Isreal, thereby making it necessary for it to transport all its witnesses and evidence from one country to another. If the hearings were to be held in California, an extra and unequal burden and expense would be placed on the claimant with respect to transporting these witnesses and evidence to that location. I determined New York to be a fair central point, equally accessible and convenient to both parties.
      “(d) Regarding the fact that the contracts involved in this case were nego--tiated, drawn and executed in California, the performance of the agreements, involves activities taking place in Israel. Further, because such performance does take place in Israel, there is a closer connection between the subject matter of contracts and Israel than between the subject matter and California. Thus, the claimant could have, if so desired, requested Israel as the location for the arbitration hearings.”

      . We heard oral argument on March 7, 1973, and entered an order on March 8, 1973 reversing the district court and dissolving a preliminary injunction. We indicated that a formal opinion would follow. For reasons that we shall hereafter explain, we contemplated that the parties would proceed at once with arbitration proceedings. Appellee moved on March 22, 1973 to stay the order of March 8 until 10 days after the filing of this opinion. That motion was denied.

      . Emphasis should be placed on the word “proceedings.” There can always be prior judicial inquiry into the validity of an agreement to arbitrate. In the present case it is conceded that there was a valid agreement to arbitrate at a locale selected by the AAA. See In re Royal Globe Ins. Co. v. Spain, 36 A.D.2d 632, 319 N.Y.S.2d 115 (1971).

      . Even if we assume there is some distinction between the ruling of the AAA here and a final arbitration award covered by 9 U.S.O. § 10 the test would be the same.
      It was part of the arbitration agreement that the AAA could select a locale for the arbitration if the parties failed to agree on one. In re Royal Globe Ins. Co. v. Spain, supra note 3. When the parties to a contract agree that a factual determination is to be made by a neutral third party that determination is upheld in the absence of fraud or gross mistake as would necessarily imply bad faith. Baez v. Disabled American Veterans Service Foundation, 119 F.Supp. 490 (S.D.N.Y. 1954) ; Davidson v. Times Printing Co., 63 Wash. 577, 116 P. 18 (1911).

      . It was once the law that a Court of Appeals’ power to recall its mandate expired at the end of the term at which it was issued. However, the better view is that this limitation was removed by the abolition of the “term” concept in 1948, the lapse of time being significant only with respect to the court’s duty to “prevent injustice.” Greater Boston Television Corp. v. F.C.C., supra, 463 F.2d at 275-276. At any rate, the March 8 order and subsequent mandate were clearly issued within the present “term.”


text:
    Allen A. GREENBERG, d/b/a Allen Greenberg & Associates, PlaintiffAppellant, v. GENERAL MILLS FUN GROUP, INC., Defendant-Appellee.
    No. 72-3793
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 7, 1973.

      Brenda M. Abrams, Miami, Fla., for plaintiff-appellant.
    Richard B. Adams, James G. Ether-edge, Miami, Fla., for defendant-appel-lee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This is an appeal from the granting of judgment on the pleadings and final summary judgment in a contract case. Finding that the contract upon which judgment was granted is ambiguous and that therefore the case should have gone to the jury, we reverse.

Plaintiff-appellant, Allen A. Green-berg, is an inventor of toys. On July 25, 1969, he entered into a contract with Rainbow Crafts, Inc. (RCI), the predecessor in interest of defendant-appellee, General Mills Fun Group, Inc., whereby RCI agreed to pay plaintiff fifteen thousand dollars in exchange for his development of a line of toys to be purchased by RCI at a later date. Under this contract, plaintiff was obligated to provide plans for at least three but no more than five toys, which RCI could accept or reject at its option. The contract further provided that:

“RCI shall perform all engineering work required to complete development of the toys accepted by it. In the event that a toy appears not to be technically feasible as a result of such engineering work, Greenberg shall provide consulting services at reasonable times at no charge. . u
“In the event that the line of toys developed under this agreement does not produce at least two million dollars ($2,000,000.) in sales during the first twelve (12) months of sales, measured from the date of the first sale by RCI, Greenberg shall return the fifteen thousand dollars ($15,000.-00) to RCI.”

RCI eventually accepted five toys submitted by plaintiff. On October 7, 1969, agreements were entered into between the parties with respect to each of the five toys selected. Each of these agreements was completely separate from the July 25 contract.

Defendants ultimately manufactured only four of the five toys developed and accepted pursuant to the July 25 contract. When total sales of the four toys failed to reach two million dollars, defendant demanded that plaintiff return the fifteen thousand dollars consideration for developing the toys, claiming that plaintiff was required to do so by the July 25 contract. Plaintiff refused and contended that the July 25 contract required defendant to manufacture all five toys developed by plaintiff and accepted by defendant and that the failure of defendant to manufacture all five toys caused sales to fall below two million dollars. Defendant then withheld fifteen thousand dollars from royalties due under the October 7 agreements.

Plaintiff commenced this diversity action in the United States District Court alleging that defendant violated the July 25 contract by failing to develop all five toys that it accepted, and that defendant also violated the October 7 agreements by withholding royalties. Defendant counterclaimed, alleging that plaintiff breached the July 25 contract by refusing to return the fifteen thousand dollars when sales of the toys fell below two million dollars. Plaintiff moved for partial summary judgment on the October 7, agreements, and defendant moved for judgment on the pleadings. The District Court granted plaintiff’s motion for partial summary judgment, ruling that he was entitled to fifteen thousand dollars due under the October 7 agreements. The District Court also granted defendant’s motion for judgment on the pleadings and entered final summary judgment, ruling that:

“[T]he mutual obligations imposed upon the parties by the contracts herein are offsetting, [and] the Court finds that neither parties shall recover from the other, and each party shall bear its own expenses and costs, and that this case be and is, hereby dismissed with prejudice.”

Plaintiff argues that the District Court erred in granting defendant’s motion for judgment on the pleadings because the July 25 contract contains latent ambiguities concerning defendant’s obligation to produce the toys accepted by it that can only be resolved by a factual inquiry into the intent of the parties. We agree.

A motion for judgment on the pleadings, like a motion for summary judgment, should be granted only if there is no issue of material fact and if the pleadings show that the moving party is entitled to prevail as a matter of law. J. M. Blythe Motor Lines Corp. v. Blalock, 5 Cir. 1962, 310 F.2d 77; Stanton v. Larsh, 5 Cir. 1957, 239 F.2d 104; Austad v. United States, 9 Cir. 1967, 386 F.2d 147; Franklin Nat. Bk. v. Krakow, D.D.C.1969, 295 F.Supp. 910; see also 2A Moore’s Federal Practice § 12.15; Wright & Miller, Federal Practice and Procedure: Civil § 1368. We find that the provision of the July 25 contract, which was drafted by RCI, stating that “RCI shall perform all engineering work required to complete development of the toys accepted by it,” when read in juxtaposition with the provision that:

“In the event that the line of toys developed under this agreement does not produce at least two million dollars ($2,000,000.) in sales during the first twelve (12) months of sales, measured from the date of the first sale by RCI, Greenberg shall return the fifteen thousand dollars ($15,000.00) to RCI,”

evinces a facial ambiguity as to whether defendant was required to develop and market all of the toys accepted under the July 25 contract. This ambiguity could be clarified only by the introduction of evidence from which the finder of fact could determine the true intent of the parties. See Matthews v. Drew Chemical Corp., 5 Cir. 1973, 475 F.2d 146; International Erectors, Inc. v. Wil-hoit Erectors and Rental Service, 5 Cir. 1968, 400 F.2d 465.

Defendant contends that judgment on the pleadings and final summary judgment were proper because the October 7 agreement, which had been appended in outline form as an exhibit to the July 25 contract, demonstrates that the parties anticipated the possibility that one or more of the toys presented by plaintiff would be accepted but not manufactured by RCI. The clause relied on by defendant provides:

“In the event that it is technically feasible for RCI to complete the development of the toy for sale, but nevertheless, there are no sales of the toy by RCI by December 31, 1970, Green-berg shall be under no obligation to return any advances against royalties to RCI, which may have been paid by RCI to Greenberg.”

We do not find this clause dispositive of the facial ambiguity contained in the July 25 agreement, since it deals only with the potential that a toy would generate no sales, not that a toy would not be manufactured. Defendant was entitled to a judgment on the pleadings only if it was not required to manufacture all toys accepted pursuant to the July 25 contract. We find that the July 25 contract is facially ambiguous in that regard, and that therefore the District Court should have let the jury determine (1) whether the parties intended to require defendant to manufacture all the toys it accepted pursuant to the July 25 contract or (2) whether the parties intended that the manufacture of all toys accepted would be a condition precedent to plaintiff’s returning the fifteen thousand dollars if sales fell below two million dollars.

Reversed.

      . Clause VI of the October 7 agreements provided:
      “This instrument represents the entire agreement of the parties as to the sale of this toy, and it is a completely separate contract from the Agreement between the parties of July 25, 1969, even though this instrument accompanied it as Exhibit A. Any breacli of the July 25, 1969 agreement shall in no way effect rights and duties of the parties hereunder.”


author: FIELD, Circuit Judge:

text:
    RELIABLE COAL CORPORATION, Petitioner, v. Rogers C. B. MORTON, Secretary of the Interior and his delegate, and the Board of Mine Operations Appeals of the Department of the Interior, Respondents.
    No. 72-1477.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 8, 1972.
    Decided May 3, 1973.

      Brooks E. Smith, Kingwood, W. Va. (Dailey & Smith, Kingwood, W. Va., on brief), for petitioner.
    Michael Kimmel, Atty., U. S. Dept, of Justice, Civil Div. (Harlington Wood, Jr., Asst. Atty. Gen., Alan S. Rosenthal, Atty., U. S. Dept, of Justice, Civil Div., J. Philip Smith, Asst. Sol., U. S. Dept, of Interior, on brief), for respondents.
    Charles L. Widman, Atty., International Union, United Mine Workers of America (Edward L. Carey, and Willard P. Owens, Washington, D. C., on brief), for respondent, International Union, United Mine Workers of America.
    Before BUTZNER, FIELD and WIDENER, Circuit Judges.
   FIELD, Circuit Judge:

Reliable Coal Corporation seeks review of a decision of the Board of Mine Operations Appeals which affirmed the Hearing Examiner in denying Reliable’s petitions to modify certain mandatory safety standards contained in Sections 303(d)(1) and 303(Z) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 863(d)(1) and 863(Z). Additionally, petitioner complains of the Board’s determination that review of the reasonableness of time for abating a violation of Section 303(d)(1) was rendered moot upon Reliable’s compliance with the standard. 2Jurisdiction for this review is based upon Section 106, 30 U.S.C. § 816.

Under Section 301(e) of the Act, 30 U.S.C. § 861(e), the Secretary may, upon petition by an operator or the representative of miners, modify the application of any mandatory safety standard to a mine if he determines that “an alternative method of achieving the result of such standard exists which will at all times guarantee no less than' the same measure of protection afforded * * * by such standard” or that “the application of such standard to such mine will result in a diminution of safety to the miners.”

Asserting that its Kanes Creek Mine was entitled to modification of the mandatory standards of Section 303(Z) under both criteria of Section 301(c), Reliable filed its initial petition for modification on January 5, 1971. On January 7, 1971, a preshift inspection resulted in the issuance of an abatement order for violating Section 303(d)(1) of the Act to take effect January 22, 1971 Subsequent to this order Reliable filed separate petitions challenging the reasonableness of time of the order as well as the application of Section 303(d)(1) on the basis that it was in compliance with the standard by an alternative method that attains the same result and assures no less than the same measure of protection to the miners. These petitions were consolidated for hearing by the Examiner.

In both instances, the modifications sought by Reliable pertain to testing devices used to detect methane in a mine. Section 303(d)(1) requires the use of a methane detector to check for accumulations of methane within three hours immediately preceding the beginning of the shift. In lieu of the detector, Reliable would test with a permissible flame safety lamp, a device commonly used for this purpose prior to the 1969 Act. Section 303(i) requires as an additional methane detecting device that a methane monitor be installed on any electric face cutting equipment, continuous miner, longwall face equipment, and loading machine, except that no monitor is required to be installed on the equipment prior to the date such equipment is required to be permissible under Section 305(a), 30 U.S.C. § 865(a). Reliable seeks to avoid the mandate of this provision of the Act by making what it terms “continuous routine periodic checks” with a methane detector or permissible flame safety lamp. The Examiner, whose decision was affirmed by the Board, concluded that neither of the modifications proposed by Reliable would meet the requirements of Section 301(c) that they guarantee the same measure of protection to the miners as the mandatory standards. In reaching this conclusion, the Examiner rejected Reliable’s argument that he should determine whether the Kanes Creek Mine is not gassy or potentially gassy. While permitting evidence on this question at the hearing, he concluded that the Act abolished the gassy/nongassy distinction and therefore it was unnecessary for him to make a factual finding relative to the potential for methane accumulations in Reliable’s Kanes Creek Mine.

Reliable’s position on this review rests on the premise that Sections 301(c) and 305(a) of the 1969 Act, when read together, indicate that it retained the distinction of the 1952 Federal Coal Mine Safety Act between gassy and nongassy mines. Under the prior Act, a nongassy mine, a classification based on the amount of methane detected in a mine, was subject to less stringent safety standards than those imposed on a gassy mine. See, e. g., Sections 209(d) (5), (6), (7), (9), (10), and (11) of the 1952 Act, 66 Stat. 703. Reliable concedes that all mines are initially regulated by the same standards under the 1969 Act, but argues that the debate in Congress on the question of retaining the distinction resulted in a compromise provision, namely Section 301(c), which they feel permits an operator to obtain a modification upon a factual showing that there is no potential for gas accumulation in the operator’s mine. Reliable reasons that once this is established, the mine satisfies the criteria for modification as enunciated in Section 301(c). They contend that Section 301(c) does not require a finding that the alternative method of measuring methane proposed by the operator must have the same degree of refined measurement as the statutory standard, but only that it achieve the same result. From this premise Reliable argues that since no methane exists in the Kanes Creek Mine, the alternative method will guarantee no less than the same protection since the result of using either device will be the same —a zero reading of methane. Reliable also refers to Section 305(a)(2) as an indication of Congressional intent to retain the gassy/nongassy distinction since this section extends to mines not previously classified as gassy and located above the watertable substantial grace periods within which to convert their present equipment to permissible status. Under the 1952 Act, it was primarily in regard to the requirement pertaining to the use of permissible electrical equipment that the distinction between gassy and nongassy mines was significant. In sum, based on a showing that the Kanes Creek Mine is not gassy or potentially gassy, Reliable asserts that Section 301(c) should countenance the use of a permissible flame safety lamp in lieu of a methane detector; and either of these devices in lieu of the methane monitor.

The argument is flawed in every aspect, the most conspicuous being the contention that the 1969 Act retained the distinction between gassy and non-gassy mines. A review of the legislative history of the Act as contained in House Comm, on Ed. and Labor, Legislative History Federal Coal Mine Health and Safety Act, Comm.Print, 91st Cong., 2d Sess. (1970) [hereinafter cited as Leg. Hist.], convinces us that, aside from the extension periods provided for in the Act, Congress intended to eliminate any distinction between gassy and nongassy mines. While the debate in Congress relative to Section 305(a) focused on the requirement of maintaining permissible equipment, it clearly indicates a rejection of the classification as related to all safety standards since obviously the means prescribed to detect methane provides greater protection for the miners than the mere elimination of one source of igniting the gas once its presence is discovered in a working area.

As in the case of prior coal mine legislation, the 1969 Act was precipitated by a tragic mining incident, an explosion which entombed seventy-eight coal miners in the Farmington No. 9 mine located in West Virginia. Leg.Hist. at 558. Immediately, Senate and House Subcommittees conducted extensive hearings to propose new legislation designed to raise the health and safety standards of the coal mining industry and one of the major areas of concern and controversy involved the elimination of the gassy/nongassy distinction. Aside from the dust standard, no issue received as much time or attention before the Senate Subcommittee. Leg.Hist. at 222. Significantly, of the bills introduced in the Senate Hearings on S. 355, S. 467, S. 1094, S. 1178, S. 1300, and S. 1907 Before a Subcommittee of the Comm, on Labor and Public Welfare, 91st Cong. 1st. Sess. 7-447 (1969), only Senator Cook’s proposal retained the distinction, id. at 283. The Committee, which during the deliberations had rejected an amendment submitted by Senator Cooper which would have retained the gassy/nongassy classification, Leg.Hist. at 35, explained in their report accompanying the composite bill S. 2917, that “[they] followed the recommendation of the Department of Interior that all mines be treated alike, in providing these new and additional safeguards to control methane and prevent ignitions.” Leg.Hist. at 27.

During the Senate debate on the Committee Bill, Senator Cooper again introduced an amendment to retain the distinction. Leg.Hist. at 397. To accommodate the Senator’s views with respect to the financial imposition on the small mines, the substitute amendment was offered which provided mines previously classified as nongassy additional time within which to comply with the requirements of procuring permissible electrical equipment. Leg.Hist. at 474-77. The amendment recognized the economic impact on the small operator if required to convert to permissible equipment on the operative date of the Act, as well as the industrial reality that manufacturers were incapable of producing the requisite equipment within a relatively short period of time. It is manifestly clear that Section 305(a) was a compromise measure incident to the elimination of the prior classification, Leg.Hist. at 690, 742. During the debate Senator Cooper himself recognized that except for the extension periods the adoption of the substitute amendment would remove the gassy/nongassy classification, LegHist. at 481. The substitute amendment was passed and contained in the final Senate Bill, Leg.Hist. at 482, 530.

The House likewise rejected the proposals of the small mine operators urging the retention of the distinction. The House Committee, after extensive hearings on the issue, Hearings on H.R. 4047, H.R. 4295, and H.R. 7976 Before the Comm, on Ed. and Labor, 91st Cong., 1st Sess. (1969), submitted a bill, H.R. 13950, which contained provisions similar to the Senate Bill regarding the elimination of the distinction, but did provide an extended grace period for compliance. While the Bill was on the House floor members of the House were advised that acceptance of the proposed Bill contemplated the elimination of the gassy/nongassy classification. Leg.Hist. at 690. The statement of the Managers of the House relative to the Bill accepted in conference explained that Section 305(a) which eliminated the distinction adopted the language of the Senate Bill, but accepted the time provisions of the House Bill. Leg.Hist. at 1045. In the Senate debate on the conference Bill, Senator Williams submitted a summary of the major provisions of the Bill in which he unequivocally stated that “[305(a)] eliminates the distinction be-tweén gassy mines and the so-called non-gassy mines.” Leg.Hist. at 1130.

The history of the Act demonstrates beyond any doubt that Congress carefully evaluated the issue and determined that the gassy/nongassy distinction should be eliminated. Yet, Reliable contends that Section 301(c), which was not contained in the Senate Bill, but was placed in the House Bill and conference Bill, was a compromise provision which in effect affords the small mine operator the statutory means to perpetuate the distinction. Again the legislative history as well as the plain language of the Act refutes this contention. Under the statutory pattern the Secretary is directed to “develop, promulgate and revise, as may be appropriate, improved mandatory safety standards for the protection of life and the prevention of injuries in a coal mine * * This authority and the procedure incident thereto is delineated in Section-101 of the Act, 30 U.S.C. § 811. However, recognizing the urgent need for improved safety measures, interim mandatory safety standards applicable to all underground coal mines are prescribed by Sections 302 through 318 of Title III of the Act, 30 U.S.C. §§ 862-878. These provisions were designed to prescribe immediate mandatory standards without undergoing the ’lengthy administrative process for the promulgation of such standards by the Secretary under Section 101, Leg.Hist. at 50. The expeditious application of these standards to the entire coal mining industry necessarily presented a variety of problems, technical in nature, and it was necessary to give the Secretary a degree of flexibility to adjust the many detailed requirements of Title III to the particular problems of individual coal mines. This is the plain purpose of Section 301(c), but it was never intended by the Congress that modifications thereunder would be employed to dilute the statutory standards or resurrect the “gassy/nongassy” distinction.

The safety standards embodied in Title III of the Act represent an attempt by the Congress to maximize the protection of the miners based on the current knowledge and technology of the industry. These standards, however, are not to be static, but constantly upgraded to provide increased safety and, when necessary, to meet changes in technology and mining conditions. Leg.Hist. at 1040. The methane testing devices challenged by Reliable were designed by the Act to provide reasonable interim protection for the miners and assuredly it would frustrate the legislative purpose to construe Section 301(c) in a manner which would permit these standards to be lowered.

In St. Marys Sewer P. Co. v. Director of U. S. Bureau of Mines, 262 F.2d 378, 381 (3 Cir. 1959), which involved an interpretation of the 1952 Act, the Court stated:

“The statute we are called upon to interpret is the out-growth of a long history of major disasters in coal mines. * * * It is so obvious as to be beyond dispute that in construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light of the prime purpose of the legislation is to be employed.”

We find this observation equally appropriate to the case at hand and conclude that the Board’s interpretation of the Act carries out the plain intent of the Congress and should not be disturbed.

The order of the Board will be affirmed.

Affirmed.

      . We agree with the Board’s ruling on this point and do not feel the question necessitates further discussion.

      . As a result of petitioner’s purchase order for methane detectors the period of abatement was extended several times until .Tune 14, 1971. On that date, the Bureau of Mines issued a notice of abatement since the detectors had then been procured b.v Reliable.

      . The methane detector is a small portable instrument about the size of a transistor radio which measures the concentration of methane in the sampled air.

      . Section 303(d) (1) requires testing for methane “[with] means approved by the Secretary.” This provision was implemented by regulation, 30 C.F.R. 75.304r-3, which permitted the use of the flame safety lamp until December 31, 1970, on and after which date a methane detector was required; however, the flame safety lamp may still be used as a supplementary testing device. The express language of the statute rejecting the use of the flame safety lamp, coupled with protests in subcommittee hearings against the rejection of the lamp as an adequate testing device, indicates a Congressional determination that the flame safety lamp, when used exclusively, is inadequate for the purpose of testing for methane. See Hearings on H.R. 4047, H.R. 4295 and H.R. 7976, before a Subcommittee of the House Committee on Education and Labor, 91st Cong. 1st Sess. 138-39 (1969).

      . The methane monitor is similar to the methane detector, except that it tests on a continuous basis rather than at periodic intervals, and is designed to be attached fo electrically powered mine machinery. Section 303(i) requires that the monitor be set to automatically give a warning when the methane concentration reaches one percent, and to automaticaly de-ener-gize the machinery when the methane concentration reaches two percent.

      . As applied to electric face equipment, “permissible” means “the electric parts of which * * * are designed, constructed, and installed, in accordance with the specifications of the Secretary, to assure that such equipment will not cause a mine explosion or mine fire, and the other features of which are designed and constructed, in accordance with the specifications of the Secretary, to prevent, to the greatest extent possible, other accidents in the use of such equipment * * *.” Section 318 (i) of the Act, 30 U.S.C. § 878 (i).

      . Section 305(a) which will be discussed in detail infra, authorizes grace periods for certain mines to comply with the mandatory standards as related to permissible equipment. With respect to the Kanes Creek Mine, the required date for installation of the methane monitors will be March 30, 1974.

      . The mine was sealed ten days after the explosion and its cause remains unknown.

      . St Recognition of the interim standards as the minimal protective measures acceptable to Congress is evident in the language of Section 101(b), 30 U.S.C. § 811(b) :
      “No improved mandatory health or safety standard promulgated under this sub-chapter shall reduce the protection afforded miners below that provided by any mandatory health or safety standard.”


text:
    Harold H. LANGFORD et al., Appellants, v. CITY OF TEXARKANA, ARKANSAS, et al., Appellees.
    No. 72-1187.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1973.
    Decided April 25, 1973.

      John T. Lavey, Little Rock, Ark., for appellants.
    Willis B. Smith, Jr., Texarkana, Ark., for appellees.
    Before LAY, HEANEY and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

We are asked on this appeal to reverse the trial court and to hold, as a matter of law, that two employees of the City of Texarkana, Arkansas, were discharged in violation of their constitutional rights — primarily the right to associate freely with persons of all races.

The underlying facts can be simply stated. Texarkana was selected to participate in the federal government’s Model Cities Program. The Community Development Department of the City was given the responsibility for administering the program, and Tom McRae was named director of that department. McRae hired Harold Langford, a black, to head the Community Organization Division of the department. Langford, in turn, employed Mrs. Jimmie Johnson, a white.

On November 28, 1970, McRae was told by the City Manager, Paul Schriever, to discharge Langford and Johnson. Schriever had acted on orders from the Board of Directors of the City, and the Mayor with respect to Langford. Mc-Rae objected to the discharges, but carried out his assignment on November 30. Thereafter, Langford and Johnson sought and were denied reinstatement. They then brought this action, alleging they were discharged without notice or hearing in violation of the due process clause of the Fourteenth Amendment to the United States Constitution, and for exercising their right to freely associate with persons of all races in violation of the First, Ninth and Fourteenth Amendments to the Constitution. Langford further alleged that he was discharged for his political beliefs and activities.

The matter was tried to the court. The City introduced testimony designed to prove that Langford was ineffective in his job, that he was unable to get along with elected presidents of neighborhood councils, that he failed to discipline his subordinates for conduct detrimental to the program, that he had failed to organize the Central Business District, and that he had an unacceptable record of prior employment.

Langford, on the other hand, presented testimony tending to prove that he was an effective employee who had been discharged over the objection of McRae, and that factors in the discharge were his interracial associations and his political activities and beliefs. Langford’s witnesses also testified that McRae was fully aware of Langford’s past record when he employed him, and that Lang-ford had been instructed by his superiors not to organize the Central Business District because they feared it would be taken over by VISTA workers who lived there.

Witnesses for the City testified that Mrs. Johnson was a probationary employee who could be fired without cause, but that there was, nonetheless, cause to fire her because she failed to organize a neighborhood council in the Central Business District and because she permitted blacks and whites to visit her home at all hours of the day and night.

Mrs. Johnson, on the other hand, presented testimony tending to show that she was a competent employee, that she had been instructed not to organize the Central Business District and that a factor in her discharge was her association with black men, including Lang-ford.

The trial court discussed the applicable law and the evidence in a memorandum opinion, 337 F.Supp. 723. It questioned whether City employees have a constitutional right to associate with persons of all races but assumed, for the purposes of the opinion, that they did. It then stated:

“ * * * While Texarkana is not entitled to be concerned with trying to keep Langford and Mrs. Johnson from associating together as citizens and/or as persons, if the exercise of their right to associate (if that right exists) creates such a state of community rejection in the Texarkana area that it destroys or materially and substantially impairs the ability of Lang-ford and Johnson to discharge the duties of their City employment, then Texarkana is required to step in and terminate their employment.” (Emphasis added.)

The trial court avoided answering the crucial question of whether Langford and Johnson’s interracial associations were a factor in their discharges. Instead, it found that neither was able to gain the confidence of the people with whom they were required to work, that their attitude was one of superior disregard and contempt rather than an attitude of cooperation, and that a true evaluation of the whole picture revealed that each was unable to perform the duties of his or her position.

The problem with these findings is that they left open the question of whether a factor underlying the dismissals was antipathy towards the plaintiffs’ interracial associations. This question must be answered because, in our view, the City had no right to dis-i charge Langford and Johnson if interracial associations were a factor in the! discharges. \

While we could answer the question from the record before us, we decline to do so. It is the trial court’s responsibility to do so in the first instance in accordance with the applicable law.

Racially discriminatory state action in employment is unlawful under the Equal Protection Clause of the Fourteenth Amendment. Penalizing a person for the race of his associates is just as racially discriminatory as penalizing a person because of his or her own race. See, Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Dombrowski v. Dowling, 459 F.2d 190, 197, 198, 199 (7th Cir. 1972). See also, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1966); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). In Adickes, the complaint alleged that the plaintiff, a white, had been denied the “equal enjoyment of a place of public accommodation by reason of her association with Negroes” in violation of 42 U. S.C. § 1983. Adickes v. S. H. Kress & Company, 252 F.Supp. 140, 142 (E.D.N.Y.1966) (Emphasis added.). The Supreme Court agreed that this would, if true, constitute unlawful racial discrimination, stating:

“ * * * New principles of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race or the race of his companions, or in any way act to compel or encourage racial segregation. * * * ” (Emphasis added and footnote omitted.)

Adickes v. Kress & Co., supra at 398 U.S. 151, at 90 S.Ct. 1605.

The fact that interracial associations are frowned on by some in a community cannot serve as a j ustification to discourage or prohibit sucETassociations by pumic employees. Hus'is true even if opposition to the interracial associations results in diminishing the effectiveness of the employees. See, Mayers v. Ridley, 151 U.S.App.D.C. 45, 465 F.2d 630, 641 (1972) ; Baker v. City of St. Petersburg, 400 F.2d 294 (5th Cir. 1968). To hold to the contrary would be to frustrate the exercise of ,^ constitutional rights. And this Court and the Supreme Court have rejected the proposition that interference with constitutional rights can be justified on the grounds that the community is hostile to their exercise and vigorously displays its feelings.

For example, in Aaron v. Cooper, 163 F.Supp. 13 (E.D.Ark.1958), the District Court ruled that the integration of the Little Rock School System might be delayed. In reaching its decision, the court took the position that it might properly consider “popular opposition to the plan, resulting in obstructions to its orderly operation.” Id. at 29. This Court reversed and rejected this view in an opinion by now Chief Judge Matthes. Aaron v. Cooper, 257 F.2d 33 (8th Cir. 1958). The Court recognized that implementation of the integration plan was resulting in community opposition which affected the functioning of the school system:

“Appalling as the evidence is — the fires, destruction of private and public property, physical abuse, bomb threats, intimidation of school officials, open defiance of the police department of the City of Little Rock by mobs — and the naturally resulting additional expense to the District, disruption of normal educational procedures, and tension, even nervous collapse of the school personnel, we cannot accept the legal conclusions drawn by the District Court from these circumstances. Over and over again, in the testimony, we find the conclusion that the foregoing turmoil, chaos and bedlam directly resulted from the presence of the nine Negro students in Central High School, and from this conclusion, it appears that the District Court found a legal justification for removing temporarily the disturbing influence, i. e., the. Negro students. It is more accurate to state that the fires, destruction of property, bomb threats, and other acts of violence, were the direct result of popular opposition to the presence of the nine Negro students. * * * ”

Id. at 39.

It held that despite these facts, the school board must promptly proceed with integration “ * * * ‘completely uninfluenced by private and public opinion' as to the desirability of desegregá'tfoil in the community,' * * T~rr. Td. 'St_3T (Emphasis omuted.) The Court was aware that the opposition would create practical difficulties but it, nonetheless, held:

“ ‘* * The vindication of rights guaranteed by the Constitution can not be conditioned upon the absence of practical difficulties.’ * * * ” (Emphasis included and citation omitted.)

Id. at 38.

Furthermore, it emphasized that while violence was occurring:

“* * * [T]he time has not yet come in these United States when an order of a Federal Court must be whittled away, watered down, or shamefully withdrawn in the face of violent and unlawful acts of individual citizens in opposition thereto.” (Emphasis included.)

Id. at 40.

On appeal, the decision of this Court was affirmed by the Supreme Court, stating that “law and order are not here to be preserved by depriving the Negro children of their constitutional rights.” Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401,1409, 3 L.Ed.2d 5 (1958).

Time and again, the Supreme Court has reiterated the principle that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Watson v. Memphis, 373 U.S. 526, 535, 83 S.Ct. 1314, 1319, 10 L.Ed.2d 529 (1963).

In the light of the trial court’s errors of law and its failure to make the necessary factual findings, we have no alternative but to reverse and to remand this matter to the District Court with instructions to it to determine from the record whether the appellants’ associations were a factor in the discharge of either or both. If it finds that the associations were a factor, it must reinstate the person discriminated against to the position formerly held by that person or to a position that is comparable in terms of duties, responsibilities and salaries. It must also determine the extent to which each person was damaged and the amount of such damages; the period for which damages may be shown is the period from the date of discharge, November 30, 1970, until the effective date of employment offered the discharged employee. The normal rules of mitigation shall apply in determination of the damages. See, Jackson v. Wheatley Sch. Dist. No. 28 of St. Francis County, Ark., 464 F.2d 411 (8th Cir. 1972).

Costs will be taxed to the appellees and attorneys fees in the sum of $500 are awarded to the appellants for services rendered on this appeal.

      . A third discharged employee, Viola Kibble, was a party to this action below. She has not appealed the judgment of the District Court, sustaining her discharge.

      . The plaintiffs, on this appeal, have not pursued their argument that their constitutional right to a due process hearing prior to termination was violated.

      . We find no evidence in the record to support Langford’s allegation that he was discharged for exercising his First Amendment right of freedom of expression.

      . The defendants argue that both Johnson and Langford could be discharged at will because Johnson was a probationary employee and neither was covered by “any union contract, tenure or by civil service sanctions.” These factors do not affect the right of either plaintiff to relief if they were discharged for reasons which are arbitrary, discriminatory, or otherwise in violation of their constitutional rights. See, Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) ; Freeman v. Gould Special Sch. Dist. of Lincoln County, Ark., 405 F.2d 1153, 1159 (8th Cir.), cert. denied, 396 U.S. 843, 90 S,Ct. 61, 24 L.Ed.2d 93 (1969) ; McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968).

      . No direct testimony was introduced to substantiate Schriever’s charge that persons visited Johnson at all hours of the day or night. See, n. 6.

      . According to the plaintiffs, at a meeting following their dismissals between them, Ribble and Schriever, the latter indicated that interracial associations were a factor in the discharges:
      “Ribble asked Schriever why he fired Johnson. Schriever replied that he had received complaints from Buster Mc-Carley pertaining to Johnson allowing blacks and whites to visit her apartment at High Point Court, which upset some of the neighbors. Johnson told Schriever that she had been aware of McCarley’s complaints prompting her to go see him to discuss them. Johnson told Schriever she confronted McCarley with those complaints, and he informed her that this constituted no problem to him. Schriever stated that he had additional complaints from two Frank Rowe construction workers, who said that Johnson allowed blacks and whites to visit her house. At this juncture, Schriever turned to Langford and pointed his finger at him and said ‘Harold, you also have been seen there.’ Johnson explained that she did allow blacks and whites to visit her house and that some blacks had assisted her to move from High Point Court to Preston Circle. She also told Schriever that when she went to buy her house at Preston Circle from Rowe, he questioned her about moving into that neighborhood. He inquired whether Johnson wanted to raise her children there, and Johnson informed him that she felt this was not a problem because she had grown up with blacks and it had no adverse effect on her. Rowe asked Johnson if someone had sent her to buy the house, and Johnson replied negatively. At this point, Rowe told Johnson, T shall let you have the house, but I do not want any nigger bucks coming in and out of it.’ ”
      The plaintiffs’ allegations were also partially corroborated by McRae who described the reasons for Johnson’s discharge-: ¡
      “A Being seen with Harold [Lang-ford] ; people coming in and out of her house at strange hours. This type of thing.
      “Q Black and white coming into her house?
      “A I believe so, although it wasn’t put that—
      “Q How was it put to you?
      “A Traffic in and out of the house at all hours. This type of thing.”
      Schriever, at trial, denied that the reasons for the dismissal were the plaintiffs’ interracial associations. However, he stated that he was not personally familiar with the situation, and that he had relied on complaints by two neighborhood council presidents, Glorioso and Maddox, and Buster McCarley of the Housing Authority. Glorioso and Maddox testified but did not mention Johnson. McCarley did not testify and no evidence was introduced to show he was unavailable.
      Langford also produced evidence to show that he had been fired for interracial associations. According to the plaintiffs’ account of the meeting with Schriever, the latter had complained that Langford had been seen at Johnson’s house. Langford testified that McRae had told him that at a meeting of the Model Cities Board, Glorioso had complained that Langford had been associating in public with Johnson, and Maddox had stated he disapproved of whites and blacks sitting together at public meetings. McRae testified that he had investigated complaints made by Glorioso about Lang-ford and that these complaints were insubstantial. As we have stated, a basis of these complaints, according to McRae, was that Glorioso was opposed to Lang-ford and Johnson associating with each other. Moreover, in determining whether or not Langford was fired for interracial associations, it is relevant to bear in mind the evidence produced by Johnson in regard to her daim.
      In addition, evidence was introduced which showed that Langford had been doing a good job at supervision of the Community Organization Department. For example, McRae testified that he had opposed the dismissal of Langford, and felt that the latter was performing satisfactorily. He stated that an independent consulting firm had studied the Model Cities Program and found it to be functioning well. Langford was singled out for special praise.
      The defendants also allege that Lang-ford was fired because he refused to dismiss a Community Organizer (Ribble). However, the record indicates that the ultimate power to hire and fire in the Model Cities Program was in McRae’s hands, and that he opposed terminating Ribble’s employment.

      . There is nothing in the record to support the court’s conclusion that “their attitude was one of superior disregard and contempt,” except for the plaintiffs’ persistence in continued interracial association.

      . See, Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 3055, 1056 (7th Cir. 1972) ; Green v. McDonnell Douglas Corporation, 463 F.2d 337, 346 (8th Cir.) (Lay, J., concurring), cert. granted, 409 U.S. 3036, 93 S.Ct. 522, 34 L.Ed.2d 485 (1972) ; Smith v. Sol D. Adler Realty Company, 436 F.2d 344, 349-350 (7th Cir. 1970) ; Mead and Mount Construction Co. v. N.L.R.B., 411 F.2d 1154 (8th Cir. 3969). See also, London v. Florida Department of Health and Rehab. Serv., 448 F.2d 655 (5th Cir. 1973) (per curiam), cert. denied, 406 U.S. 929, 92 S.Ct. 1765, 32 L.Ed.2d 321 (1972).

      . In Wieman v. Updegraff, 344 U.S. 183, 191-192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952), the Court stated :
      “* * * [T]he facile generalization that there is no constitutionally protected right to public employment * * « obscure [s] the issue. * * * We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion ® * * is patently arbitrary or discriminatory.”

      . In Baker v. City of St. Petersburg, 400 F.2d 294, 295 (5th Cir. 1968), the facts showed that black police officers were “largely restricted in their duties to policing Negro citizens.” The defendant justified this as necessary for efficiency because of the “often delicate and sensitive nature of police work.” The Court rejected this argument, stating that “ * * * [p]olice efficiency must yield to constitutional rights.” Id. at 300.

      . See, Palmer v. Thompson, 403 U.S. 217, 226, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971) ; Taylor v. Louisiana, 370 U.S. 154, n. 2, 82 S.Ct. 1188, 8 L.Ed.2d 395 (1962) ; Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 62 L.Ed. 149 (1971). Cf., Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) ; Action v. Gannon, 450 F.2d 1227, 1232 (8th Cir. 1971).