author: FRIENDLY, Circuit Judge:

text:
    Elian BOLANOS, Plaintiff-Appellant, v. Maurice F. KILEY, District Director, Immigration and Naturalization Service, New York District, Defendant-Appellee.
    No. 647, Docket 74-2561.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 16, 1975.
    Decided Jan. 29, 1975.

      Peter Hirsch, Corona, N.Y. (Belovin & Fleishman, Corona, N.Y., of counsel), for plaintiff-appellant.
    Prosper K. Parkerton, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E.D. N.Y., and Paul B. Bergman, Asst. U. S. Atty., of counsel), for defendant-appellee.
    Before WATERMAN, FRIENDLY and GURFEIN, Circuit Judges.
   FRIENDLY, Circuit Judge:

Plaintiff Elian Bolanos, a citizen of Colombia, entered the United States on July 22, 1973 on a visitor’s visa which expired on August 12 of that year. The visa was not extended and Bolanos remained illegally. On March 6, 1974, he was arrested by members of the New York City Police Department and charged with first degree robbery, second degree assault and possession of weapons. After he had presented alibi evidence, the grand jury failed to indict him and, on April 16, the charges were dismissed.

As a result of Bolanos’ arrest his whereabouts became known to the Immigration and Naturalization Service (INS) which lodged a detainer warrant. Upon his release from custody by the New York City police, he was turned over to the INS, which instituted a deportation proceeding. On April 18, 1974, a hearing was held before a Special Inquiry Officer pursuant to § 242 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1252. The Special Inquiry Officer found him deportable under §§ 241(a)(2) and (9), and ordered him to be deported but, as permitted by § 242(b), granted him the privilege of voluntary

departure through May 18, 1974 and also required him to post a $500 bond. Although this limitation on the period for voluntary departure was subject to administrative appeal, 8 C.F.R. § 242.21, and thereafter to review in this court under § 106(a) of the Immigration and Nationality Act, see Foti v. INS, 375 U.S. 217, 229, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), no appeal was taken.

Instead Bolanos chose simply to allow the period for voluntary departure to expire. On July 26, 1974, he married a permanent resident of the United States, with whom he has conceived a child. On October 16, nearly five months after expiration of the period for voluntary departure, Bolanos applied to the District Director under § 244(e) for an extension of the period in which he might remain in the United States and ultimately depart voluntarily. This was predicated not on his marriage, as it could not be under the present policy of the INS, see Noel v. Chapman, 508 F.2d 1023 (2d Cir., filed Jan. 3, 1975), but on his intention to prepare and institute an action under the Civil Rights Act, 42 U.S.C. § 1983, against members of the New York City Police Department because of his arrest on March 6, 1974 and subsequent incarceration; Bolanos sought an extension of indefinite duration until the suit was resolved. The District Director denied the application except to the limited extent of postponing the voluntary departure date to November 7, 1974. Bolanos did not depart. Instead, only one day prior to the date fixed, he filed the complaint in this action in the District Court for the Eastern District of New York seeking to enjoin his deportation and a civil rights action against the New York City Police Commissioner.

Bolanos moved for a temporary injunction. Chief Judge Mishler, correctly holding that he had jurisdiction, see Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968), denied the motion in a memorandum order entered on November 19, from which plaintiff has appealed. On November 29 Chief Judge Mishler denied a further stay. Another panel of this court, on December 10, granted a stay pending argument of an expedited appeal; we extended the stay pending decision.

There is no merit in the claim most strongly pressed by Bolanos, namely, that the Constitution prohibits his deportation under the circumstances here presented. We can readily agree that the due process and equal protection clauses of the Fourteenth Amendment apply to aliens within the United States, see In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Gordon v. Garrson, 77 F.Supp. 477 (E.D.Ill.1948); Robeson v. Fanelli, 94 F.Supp. 62, 70 (S.D.N.Y. 1950); Simon v. Lovgren, 368 F.Supp. 265, 268-269 (D.V.I.1973), and even to aliens whose presence here is illegal. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (due process clause of Fifth Amendment). We can likewise agree that the familiar combination of 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) affords such an alien' access to the federal courts to assert a claim of violation of those clauses by a state officer. None of this means, however, that by claiming that state officers have violated his constitutional rights, an otherwise deportable alien obtains a constitutional right to remain in the United States for whatever period the resolution of his claim may require. The refusal of the District Director to extend the date for Bolanos’ voluntary departure is thus to be viewed under the usual test of abuse of discretion.

In United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2 Cir. 1950), Judge Learned Hand spoke, in language later quoted with approval in Jay v. Boyd, 351 U.S. 345, 354 n. 16, 76 S.Ct. 919, 100 L.Ed. 1242 (1956), of the power to suspend deportation as “a dispensing power, like a judge’s power to suspend the execution of a sentence, or the President’s to pardon a convict.” He concluded that a court may not upset denial of such a suspension unless “it affirmatively appears that the denial has been actuated by considerations that Congress could not have intended to make relevant.” 180 F.2d at 491. In Wong Wing Hang v. INS, 360 F.2d 715, 719 (2 Cir. 1966), framing the test a bit more liberally, we concluded that:

the denial of suspension to an eligible alien would be an abuse of discretion if it were made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group, or, in Judge Learned Hand’s words, on other ‘considerations that Congress could not have intended to make relevant.’ United States ex rel. Kaloudis v. Shaughnessy, supra, 180 F.2d at 491.

See also Fan Wan Keung v. INS, 434 F.2d 301 (2 Cir. 1970); Noel v. Chapman, supra.

Bolanos would have brought himself within either formulation if he had been able to demonstrate that the refusal to grant a further extension was in reprisal for his suing the Police Commissioner. But nothing of the sort was claimed, much less proved, in the district court. The refusal to extend the date of voluntary departure rested on entirely sufficient grounds. In addition to Bola-nos’ initial violation, for which no explanation has been offered, he ignored the departure date of May 18, 1974, which he had in effect accepted, and made no application for an extension for five months after its expiration. Even then he had not filed the civil rights action and another three weeks were required for his attorneys to “prepare” a two page complaint against the Police Commissioner. While something was said in the district court’s memorandum and at the argument before us about instances in which stays have been granted to permit the prosecution of other types of litigation, see Kladis v. INS, 343 F.2d 513 (7 Cir. 1965); Adame v. INS, 349 F.Supp. 313 (N.D.Ill.1972), the record is barren of evidence that would warrant a conclusion that the District Director was motivated by an invidious factor rather than by Bolanos’ dilatory conduct.

Despite all this we have been concerned lest immediate deportation might cause Bolanos to be unduly hampered in prosecuting his claim. But the stays granted during the course of this litigation have largely taken care of this problem. The appellant’s brief advises us that he was being deposed by the Police Commissioner during the very week when we heard argument; this should long since have been completed. To make assurance of its completion doubly sure, we will continue the stay until the issuance of our mandate. Moreover, although we are probably unable to compel such action, see United States v. Phelps, 22 F.2d 288 (2 Cir. 1927), cert. denied, 276 U.S. 630, 48 S.Ct. 324, 72 L.Ed. 741 (1928), we would expect the appropriate consul to issue Bolanos a visitor’s visa when his cases come on for trial.

Affirmed.

      . In contrast to an alien who has departed voluntarily, an alien who has been deported is faced with several not insignificant barriers to readmission to the United States. See §§ 212(a)(16), (17), 8 U.S.C. §§ 1182(a)(16), (17); Gordon & Rosenfield, Immigration Law and Procedure § 2.33 (1973).

      . The district court’s memorandum states that Bolanos had married an American citizen. However, Bolanos has made no such claim and both his original complaint in the district court and his brief on appeal allege only that his wife is a permanent resident.

      . Denial by the District Director of an alien’s request for an extension of the time within which he may depart voluntarily is not administratively appealable. 8 C.F.R. § 244.2.

      . Bolanos has also filed a state court action for false arrest against Willie Richardson, who allegedly requested his arrest.

      . Meanwhile the District Director had extended the stay of deportation until December 2.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Donald R. CLEVELAND, Plaintiff-Appellant, v. DOUGLAS AIRCRAFT COMPANY, aka McDonnell-Douglas Corporation, a corporation, Defendant-Appellee.
    No. 73-1950.
    United States Court of Appeals, Ninth Circuit.
    Jan. 29, 1975.

      Donald R. Cleveland, pro se.
    James N. Adler, Munger, Tolies, Hills & Richershauser, Los Angeles, Cal., for defendant-appellee.
    Before CARTER, TRASK and GOODWIN, Circuit Judges.
   OPINION

PER CURIAM:

Cleveland appeals the order of the district court dismissing his complaint brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e). Cleveland claimed that he was terminated by Douglas Aircraft Company (Douglas) for racial motives. The district court dismissed the action because it concluded that Cleveland had failed to comply with 42 U.S.C. § 2000e-5(e) since he filed the action more than 30 days after first receiving notice from the Equal Employment Opportunity Commission (EEOC) of his right to sue. The court judged this requirement to be jurisdictional and we agree.

Cleveland was hired as a janitor by Douglas in July 1966. On September 5, 1967, he was transferred from his job in the “clean room,” an electronic assembly area with high maintenance standards, to the “mop crew.” Cleveland claimed that he was transferred because his supervisor objected to his conversations with a female white employee. On September 8, 1967, he was transferred again, this time to clean restrooms. Cleveland performed below the company’s expectations in this job, and after two written warnings he was terminated on September 18, 1967, for poor performance.

Cleveland filed a charge of discrimination with the California Fair Employment Practice Commission on October 25, 1967, and on December 26, 1967, he filed a charge with the EEOC. The EEOC deemed the charge to be filed on January 11, 1968, and assumed jurisdiction within 210 days after the alleged unfair employment practice and more than 60 days after the initiation of state proceedings.

On March 26, 1968, the EEOC issued the statutory notice to Cleveland entitling him to sue Douglas within 30 days under 42 U.S.C. § 2000e-5(e) and on April 9, 1968, his court-appointed counsel filed a complaint in federal district court. The “right to sue” letter should be issued only when the EEOC has completed its investigation and has failed to achieve voluntary compliance by the employer. However, the United States District Court for the Central District of California had held that a civil suit would be barred if not filed within 180 days of the alleged act of discrimination. Cunningham v. Litton Industries, 1 FEP Cases 252 (C.D.Cal.1967). Cleveland’s suit of April 9, 1968, was held in abeyance pending review by this court of the district court decision in Cunningham. On June 30, 1969, we reversed the district court decision in Cunningham, holding that “the 30 day period within which suit may be filed in federal district court begins to run when the aggrieved party receives notice of failure to effect voluntary compliance from the EEOC, regardless of the period of time the Commission has taken to process the charge.” Cunningham v. Litton Industries, 413 F.2d 887, 890 (9th Cir. 1969).

On September 29, 1969, the EEOC sent a letter to Cleveland explaining that Cunningham had been reversed and stating:

“You are, therefore, free at this time to move to dismiss your complaint from the Federal Court without any prejudice to your case, and allow the Commission to exhaust the administrative process. After the administrative process has been completed you may decide to file a complaint again with the Federal Court. You may, however, maintain your complaint in the Federal Court despite the fact that the Commission has not yet completed processing your case.
“The Commission feels it is preferable to delay filing complaint until after the administrative process has been exhausted. Please sign this letter on the signature line below, indicating your consent to your attorney to dismiss your complaint without prejudice . . . .” C.T. at 88.

On November 7, 1969, Cleveland filed a motion for dismissal without prejudice in his suit of April 9, 1968, and it was granted the same day.

It is apparent from the foregoing and from the affidavit of Lorenzo Traylor of the EEOC that the EEOC issued its “right to sue” letter of March 26, 1968, before it had completed its handling of Cleveland’s case at the administrative level because it feared that otherwise Cleveland’s right to bring a civil action would be barred by the lower court holding in Cunningham which was the law in the district at that time. When Cunningham was reversed the EEOC decided that it could start all over again at the administrative level and sent Cleveland the above letter. The EEOC continued to attempt conciliation between Cleveland and Douglas but on August 11, 1971, advised Cleveland of its failure and issued him a second “right to sue” letter. Cleveland again filed suit on September 9, 1971.

Douglas filed a motion for summary judgment in this second suit, and on January 30, 1972, the district court dismissed the action. The district court found that Cleveland had not filed the suit within 30 days of the first “right to sue” letter issued by the EEOC on March 26, 1968, and therefore was barred from suit. The court found that the EEOC had no statutory authority to issue the second “right to sue” letter and therefore it was a legal nullity.

Cleveland is proceeding pro se on appeal, and the gist of his argument is that he should be excused from the operation of the 30-day statute of limitations imposed on suits brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) because:

1. Individual substantive rights should not be defeated on the basis of technical procedural mistakes which have resulted in no prejudice to a defendant.
2. The underlying policy considerations of Title VII are to achieve voluntary compliance, and his action in dismissing his first suit was aimed at achieving that goal at the suggestion of the EEOC
3. He should not be time-barred because of his reliance on the advice of the EEOC.

At all times pertinent to this appeal Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) provided that a person aggrieved under the Act could bring suit within 30 days of receiving notice from the EEOC that it had been unable to obtain voluntary compliance with the Act. This court has interpreted this provision to be jurisdictional in nature. Wong v. The Bon Marche, 508 F.2d 1249 (9th Cir. 1975) (interpreting the Equal Opportunity Employment Act of 1972, the successor to Title VII of the Civil Rights Act of 1964); accord Genovese v. Shell Oil Co., 488 F.2d 84 (5th Cir. 1973); Archuleta v. Duffy’s, Inc., 471 F.2d 33 (10th Cir. 1973); Goodman v. City Products Corp., Ben Franklin Division, 425 F.2d 702 (6th Cir. 1970). Gates v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974), does not require a different result. There the EEOC had violated one of its own regulations with the result that the appellant was not advised of her right to sue within the 30-day period. Further, we specifically limited the holding of that case to its facts. See Wong v. The Bon Marche, supra.

Since the 30-day requirement is jurisdictional, it is clear that appellant is incorrect in characterizing his failure to file suit within the prescribed period as a mere procedural error.

Appellant’s first suit brought on April 9, 1968, was dismissed pursuant to Fed.R.Civ.P. 41(a) and therefore can have no effect on the action here under consideration. See Johnson v. Railway Express Agency, Inc., 489 F.2d 525 (6th Cir. 1973); 5 J. Moore Federal Practice 141.05[2] (2d ed. 1974).

The issuance. by the EEOC of a second right to sue letter likewise is without effect. . The EEOC had no statutory authority to issue such a letter and therefore the 30-day period must be deemed to run from the issuance of the first letter. See Harris v. Sherwood Medical Industries, Inc., 386 F.Supp. 1149 (E.D.Mo.1974). To accept the EEOC’s action in issuing the second letter as proper would vitiate the congressionally mandated period of limitation in favor of a hodgepodge of ad hoc determinations by the EEOC.

Further, it cannot be presumed that the appellee has not been prejudiced because of the delay. Over 7 years have elapsed since the alleged act of discrimination. Certainly, memories have dimmed and one of appellee’s witnesses has died.

Appellant’s argument that he should be excused from the operation of the period of limitations because he dismissed his first suit at the suggestion of the EEOC must fail. In its letter, set out supra, the EEOC made clear that appellant could maintain his suit if he wished. The EEOC did not condition its offer to continue its attempts at voluntary settlement on the dismissal of the suit. The error was that of appellant in dismissing the suit. On this point the Sixth Circuit has stated:

“As regards judicial extension of the time limitation to further the remedial purpose of the legislation, it is sufficient to cite the following language from the United States Supreme Court case of Kavanagh v. Noble, 332 U.S. 535, [68 S.Ct. 235, 92 L.Ed. 150] (1947), where, in dealing with a limitation provision in the tax law, the Court had this to say:
‘Such periods are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary. Rosenman v. United States, 323 U.S. 658, 661 [65 S.Ct. 536, 89 L.Ed. 535]. Remedies for resulting inequities are to be provided by Congress, not the courts.’ ” Goodman v. City Products Corp., Ben Franklin Div., 425 F.2d 702, 703-704 (1970).

See also Wong v. The Bon Marche, supra.

Appellant’s third argument, that he should not be time-barred because of his reliance on the advice of the EEOC, is without substance. In Pittman v. United States, 341 F.2d 739, 741 (9th Cir. 1965), this court stated:

“Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 [68 S.Ct. 1, 92 L.Ed. 10] . . and Munro v. United States, 303 U.S. 36 [58 S.Ct. 421, 82 L.Ed. 633] . ., simply preclude successfully relying on a waiver of the time limitation or a mistake of the government attorney on the applicable law.”

Pittman involved an action against the government from which the government stood to gain from the erroneous advice, and therefore it applies with even greater force in the present appeal.

The order of the district court dismissing appellant’s action for want of jurisdiction is affirmed.

      . Section 2000e-5(e) was amended by the Equal Opportunity Employment Act of 1972 to allow for a 90-day period in which to file suit. Pub.L.No. 92-261, 86 Stat. 103, 42 U.S.C. § 2000e-5(f)(l). The amendment does not help appellant in this case.


author: PER CURIAM.

text:
    Bartholomew MANDEL, Plaintiff-Appellant, v. Joseph O. NOUSE and Joseph E. Pieklik, Defendants-Appellees. Harry THOMAS, Plaintiff-Appellant, v. Joseph O. NOUSE, Defendant-Appellee. Harry THOMAS, Plaintiff-Appellant, v. Howard CALLAWAY, Secretary of the Army, Defendant-Appellee.
    Nos. 74-1084, 74-1641 and 74-1713.
    United States Court of Appeals, Sixth Circuit.
    Feb. 10, 1975.
    Harry Thomas, pro se.
    Ralph B. Guy, Jr., U. S. Atty., Saul A. Green, Detroit, Mich., for defendants-appellees.
    Bartholomew Mandel, pro se.
    Before WEICK, PECK and MILLER, Circuit Judges.
   PER CURIAM.

These appeals were consolidated for hearing because of the similarity of the factual and legal issues involved.

Appellants Thomas and Mandel are discharged former employees of the United States Army Tank-Automotive Command (USATACOM) at Warren, Michigan. Both appellants were discharged for inefficiency, Mandel’s discharge occurring on March 22, 1973, and Thomas’ on July 20, 1973. Appellee Call-away is Secretary of the Army; appellee Nouse was the immediate supervisor of Mandel and Thomas; and appellee Pieklik is the Commander of the USATACOM at Warren, Michigan.

5 U.S.C. § 4302 requires an agency to establish a performance-rating plan “for evaluating the work performance of its employees.” Nouse developed, or was instrumental in developing, a performance-rating plan that applied to Mandel and Thomas. Nouse was also responsible, as Thomas and Mandel’s supervisor, for evaluating their work. Mandel and Thomas are both mechanical engineers.

5 U.S.C. § 4303 requires that the performance evaluation plan provide that “performance requirements be made known to all employees”, and that “each employee be kept currently advised of his performance and promptly notified of his performance rating.”

5 U.S.C. §§ 4306 and 4307 provide that the Civil Service Commission shall inspect such performance evaluation plans to determine if they comply with the requirements of the statute and regulations, and that a rating may not be used as the basis for any action except under an approved performance rating plan.

5 U.S.C. § 4304 reads in part:

(a) Each performance-rating plan shall provide for ratings representing at least—

(1) satisfactory performance;
(2) unsatisfactory performance; and
(3) outstanding performance.

(b) An employee may be rated unsatisfactory only after a 90-day advance warning and after a reasonable opportunity to demonstrate satisfactory performance. A performance rating of unsatisfactory is a basis for removal from the position in which the performance was unsatisfactory.

Nouse issued 90-day warning letters to Thomas and Mandel. The letter to Mandel states that his performance is “deficient” and it details the evaluation plan item by item, discussing the aspects in which his performance is deficient. It states that several of the deficiencies may take longer than 90 days to correct.

Mandel responded by filing grievances, alleging that the rating plan was unconstitutionally promulgated and arbitrarily and discriminatorily applied. The grievances were denied by the U. S. Army Civilian Review Agency.

A pre-termination hearing was denied. Appellants were notified that they had not made satisfactory progress, and they were discharged.

After receiving the 90-day warning letter, but before being discharged, Mandel filed in the District Court an action against Nouse for damages and injunctive relief, alleging that the 90-day letter was libelous and defamatory, and was published to other personnel at USATACOM; that the evaluation plan did not meet the requirements of 5 U.S.C. § 4303; and that it was discriminatorily applied.

After his discharge, Mandel filed an action in the District Court against Pieklik, claiming inter alia that the denial of a pre-termination hearing deprived him of his property interest in his employment without due process of laws; and that Pieklik condoned and approved of Nouse’s actions. Mandel alleged that the performance-rating plan and evaluation violated his right to free speech; that the plan failed to meet the requirements of 5 U.S.C. § 4303; and that the 90-day letter sent by Nouse was defamatory.

District Judge Pratt granted the defendants’ motions for summary judgment, which motions were supported by affidavits. Mandel’s claims for damages were dismissed with prejudice, on the ground of sovereign immunity. His claims for equitable relief were dismissed without prejudice on the ground that he failed to exhaust his administrative remedies.

Judge Pratt’s opinion also discussed the doctrine of primary jurisdiction of the Civil Service Commission.

Thomas filed an action in the District Court against the Secretary of the Army, alleging that he was deprived of his property interest in his employment without due process of law as the result of the denial of a pre-termination hearing; that the 90-day letter sent to him was libelous and defamatory, and was published to certain other employees at USATACOM; and that the performance evaluation plan did not comply with the statute and was not approved by the Civil Service Commission.

Basically, Thomas’s action against Nouse complained that the 90-day letter was defamatory; that the plan did not comply with the requirements of the statute; and that it infringed on Mandel’s right to free speech.

After considering the exhibits filed in the matter and the affidavits of Nouse and Pieklik, District Judge Thornton granted Callaway’s motion to dismiss and Nouse’s motion for judgment on the pleadings, on the ground that the pretermination notices and the opportunity for a full evidentiary post-termination hearing under 5 C.F.R. Part 771, Subpart B, provided procedural due process, and that the actions of USATACOM officials were protected by sovereign immunity. We affirm in all three appeals.

It is clear from the evidence in this case that Nouse in the preparation of the performance-rating plan, in the evaluation of the work performance of Mandel and Thomas, and in the preparation and transmittal of the 90-day warning letters, was performing official duties imposed upon him by statute. Each of the defendants was acting within the outer perimeter of his official duties, and they each have immunity from civil defamation suits. Barr v. Matteo, 360 U.S. 564, 573, 574, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Bramblett v. Desobry, 490 F.2d 405 (6th Cir. 1974), cert. denied, 419 U.S. 872, 95 S.Ct. 133, 42 L.Ed.2d 111.

In the performance of their official duties the defendants were at all times acting as agents of the Government. Any injunctive relief requiring the reinstatement of the plaintiffs, or other equitable relief, would operate against the Government, and is barred on the ground of sovereign immunity. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

The due process claims asserted with respect to the denial of pre-termination evidentiary hearings were determined by the recent decision of the Supreme Court in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

We further agree with the District Court that the plaintiffs have not exhausted their administrative remedies before the United States Civil Service Commission which has primary jurisdiction. United States v. Western Pac. R.R., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Crain v. Blue Grass Stockyards Co., 399 F.2d 868 (6th Cir. 1968).

Affirmed.


author: WINTER, Circuit Judge:

text:
    Thomas James PRICE, Appellant, v. GLOSSON MOTOR LINES, INC., Appellee.
    No. 73-2445.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 2, 1974.
    Decided Feb. 6, 1975.

      Israel Steingold, Richmond, Va. (Stein-gold, Steingold & Friedman and Jeffrey M. Steingold, Richmond, Va., on brief) for appellant.
    C. Hobson Goddin, Richmond, Va. (Goddin, Major, Schubert & Hyman and Aubrey R. Bowles, III, and Bowles & Boyd, Richmond, Va., on brief) for appellee.
    Before WINTER, Circuit Judge, and KAUFMAN and MURRAY,* District Judges.

       United States District Judge for the District of Maryland, sitting by designation.

   WINTER, Circuit Judge:

Thomas James Price appeals from a judgment entered upon a jury verdict for defendant Glosson Motor Lines, Inc. (Glosson), in a personal injury action instituted by Price arising out of a collision between two vehicles. He asserts that (1) since Glosson was negligent as a matter of law in causing the collision, the district court erred in submitting to the jury the question of Glosson’s negligence, and (2) the court committed reversible error in declining to answer a question posed by the jury during its deliberations. We think that the district court correctly submitted the question of Glosson’s negligence to the jury, but it erroneously declined to respond to the jury’s inquiry. Accordingly, we reverse the judgment and remand the case for a new trial.

I.

The evidence is undisputed that at approximately 4:00 a. m. on February 4, 1972, a tractor-trailer owned by Glosson ran off the right side of the southbound lanes of Interstate 85 near Alberta, Virginia, when the driver, Johnny Mac Orren, fell asleep at the wheel. After striking the guard rail, the cab lay on an embankment and the trailer fell over in the highway, completely blocking the right southbound lane and at least partially blocking the left lane. The evidence was disputed as to whether there was adequate room for another vehicle to pass the obstruction safely, and whether a fire illuminated the accident scene. Around 4:00 a. m., plaintiff, en route to South Carolina in a 1964 Buick, .collided with the overturned trailer and sustained serious injuries. While admitting that he fell asleep while driving, Orren testified that prior to the accident he had slept for eight hours in the last twelve, had stopped briefly immediately before the accident, and had not dozed off or felt sleepy.

II.

We must apply Virginia law in this diversity case. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Virginia law, evidence that a motorist fell asleep while driving establishes a prima facie case of negligence in the absence of circumstances tending to excuse or justify his conduct. Lipscomb v. O’Brien, 181 Va. 471, 25 S.E.2d 261 (1943); Jones v. Pasco, 179 Va. 7, 18 S.E.2d 258 (1942). As said in Newell v. Riggins, 197 Va. 490, 90 S.E.2d 150, 153 (1955):

Sleep does not ordinarily come to a normal person without some previous warning of its approach. To fall asleep while driving is usually the result of neglect in failing to heed the warning. Before sleep comes there is usually some drowsiness, a tendency to doze, or to become dull or dizzy . [T]he signals of the approach of sleep manifest themselves clearly under normal conditions. When the driver of an automobile fails to heed the signals he relaxes the vigilance which the law requires. If there are any facts which excuse him from the charge of negligence, the burden is upon him to produce them.
No matter what may be the cause of sleepiness, it is not probable that sleep would come to a driver of an automobile without some prior warning.. The jury may ‘ take this probability into account. (Emphasis supplied.)

Negligence as a matter of law exists only where reasonable men cannot differ as to the correct conclusion to be drawn from the evidence. See Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061 (4 Cir. 1969). In the instant case, Glosson did present evidence in an attempt to counteract the inference of negligence which could be drawn from Orren’s falling asleep at the wheel. Orren testified that he had slept for several hours within the twelve-hour period preceding the collision and that he had no forewarning of sleep. We think therefore that, under Virginia law, it was proper to submit the question of defendant’s negligence to the jury. Newell v. Riggins, supra.

III.

On the issue of contributory negligence, raised by the evidence that the scene was illuminated by a fire and that the northbound lane of the road was not completely obstructed by the overturned trailer, the district court instructed the jury: “And if the jury are uncertain as to whether the plaintiff was guilty of contributory negligence, or if you believe that it is just as probable that the plaintiff was not guilty of any such negligence as it is that he was, then you cannot find the plaintiff guilty of contributory negligence.” After deliberating for twenty-five minutes, the jury submitted this question to the court: “Did the instructions state that if there be doubt in the minds of the jurors as to the negligence or lack of it on the part of the plaintiff, the jury should find for the plaintiff?”

Upon receipt of the jury’s question, Price’s attorney suggested that the court reread the instruction quoted above, but counsel for defendant objected. Although the evidence on negligence and contributory negligence in this case made it very likely that contributory negligence was the crucial and determinative issue before the jury, the district court declined to respond to the jury’s inquiry about its instructions on contributory negligence. We think this to be reversible error.

IV.

A federal district judge is a “very puissant figure” with far-reaching powers and responsibilities.

In a trial by jury in a Federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.

Herron v. Southern Pacific Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931). The jury serves under the district judge’s guidance, and the responsibility of the judge to the jury is particularly marked where the jury indicates its confusion on a specific subject. Once “a jury makes known its difficulty”, it is the duty of the judge to be responsive to that difficulty, and he is “required to give such supplemental instructions as may be necessary”. Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409, 415 (3 Cir. 1967).

Generally, of course, the form and extent of jury instructions are within the discretion of the court. See United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947); Wright & Miller, supra, § 2556. In the instant case, the district judge evinced concern that reinstruction would overemphasize one aspect of the case; and in support of the correctness of his refusal to explain what he had previously said, defendant cites language from Bayer, supra:

Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion. The trial judge in the light of the whole trial and with the jury before him may feel that to repeat the same words would make them no more clear, and to indulge in variations of statement might well confuse. 331 U.S. 536, 67 S.Ct. 1396.

Concern about confusing or prejudicing the jury by over-instruction is, of course, appropriate. In the present contest, however, the concern is not compelling, because here the jury specified its difficulty and confusion concerning instructions on the central question in the case. In the absence of a jury inquiry, the district judge works in something of a vacuum; he can never be sure how well a jury has understood instruction on points of law, complex or simple. When a jury makes a specific difficulty known, however, it is far easier for the judge to be certain that he is responding to difficulties rather than compounding them. Cf. Bayer, supra. And when the difficulty involved is an issue as central to the case as contributory negligence is here, helpful response is mandatory.

An aspect of an overall charge can be amplified and explained, in response to a jury’s inquiry, without prejudicially emphasizing any one aspect of the case. Ordinarily the district judge need not repeat the entire charge. He can remind the jury of the other aspects of the case covered by his charge and he should caution them that the aspect of the charge which he amplifies and explains should not be given undue weight and should be considered in the light of his other instructions. Reinstruction, in whole or in part, when requested by the jury, seems to be almost universally upheld in the Courts of Appeals. Polara v. Trans-World Airlines, 284 F.2d 34 (2 Cir. 1960), is particularly in point. There, the district judge was faced with a situation similar to that in the instant case. The jury indicated its difficulties in coming to a conclusion on contributory negligence twice, and twice the trial judge reread his instructions on the point. In affirming this action, the Court of Appeals characterized the rereading as “entirely proper,” and “indeed virtually necessary under the circumstances.” 284 F.2d at 39. See also Bitsos v. Red Owl Stores, 459 F.2d 656 (8 Cir. 1972); Gay v. Augur, 97 U.S.App.D.C. 336, 231 F.2d 495 (1956). We are not cited to, nor have we found, any compelling contrary authority.

Thus, we hold that it was the duty of the trial court to respond when the jury indicated difficulty with instructions on the central issue of the case; the failure to do so was reversible error.

Reversed and remanded.

      . Wright, Law of Federal Courts, § 97 at 432 (2nd ed. 1970).

      . Although Herron is a pre-Federal Rules of Civil Procedure case, the Federal Rules have, if anything, made the federal trial judge even more puissant. See Wright, supra, § 97 (2nd ed. 1970).

      . As said in 9 Wright & Miller, Federal Practice and Procedure, § 2255 at 654 (1971):
      It is the inescapable duty of the trial judge to instruct the jurors, fully and correctly, on the applicable law of the case, and to guide, direct, and assist them toward an intelligent understanding of the legal and factual issues involved in their search for truth.

      . Walsh involved a jury request for clarification of an instruction concerning contributory negligence. There, the court held that a “perfunctory re-reading of the very instructions which may have led to the difficulty” was inadequate. The court relied on the reasoning of two previous criminal cases, Bollenbach v. U. S., 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946), and Wright v. U. S., 102 U.S.App.D.C. 36, 250 F.2d 4 (1957).
      Both Wright and Boiienbach are criminal cases and distinguishable from the present case on the facts, but the language used in each goes far beyond its narrow situation:
      Discharge of the jury’s responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy. In any event, therefore, the trial judge had no business to be “quite cursory” in the circumstances in which the jury here asked for supplemental instruction. Id. 326 U.S. at 612-613, 66 S.Ct. at 405.
      See also Wright, supra, at 11:
      The refusal to answer the juror’s question and the denial of the requested instruction [which embodied the juror’s request for explanation of a crucial instruction previously given] constitute reversible error. . [I]t is the duty of the judge ... to provide the jury with light and guidance in the performance of its difficult task.

      . Bayer, however, provides little support for the procedure of the court below. In Bayer, the district judge did reread a correct, though brief, instruction at the request of the jury but did not amplify the instruction because when he inquired whether the jury was still confused, he received no response.

      . See note 4, supra; see also Fitzpatrick v. Sooner Oil Co., 212 F.2d 548, 551 (10 Cir. 1954):
      When a jury returns to the courtroom with the request for further instruction, the presumption must be that the only uncertainty in the jury’s mind is with respect to the matter about which further instruction is sought and the court is required only to fairly answer the question asked by the jury. It is not required to restate the charge as given by the court (emphasis added).

      . Cases in which a refusal to instruct in response to jury inquiry has been upheld seem to be few and rather limited in their scope. In Phoenix Blue Diamond Express v. Mendez, 103 F.2d 66 (9 Cir.), cert. denied, 308 U.S. 566, 60 S.Ct. 79, 84 L.Ed. 475 (1939), and in Wilson v. United States, 422 F.2d 1303 (9 Cir. 1970), the Ninth Circuit upheld trial judges’ refusals to respond to jurors’ questions about matters germane to the case. In both of these cases, however, the question proceeded from a single juror. In Phoenix, the juror’s question came at the end of the judge’s charge. The court found that the trial judge had adequately instructed concerning the subject matter of the question and concluded that: “Other jurors had doubtless heard and understood the instruction '[there was an off-record indication that the juror in question had poor hearing] and were able to enlighten their associate.” In Wilson, the jury had made a request which the judge answered in open court. When he finished his explanation, a juror asked a question about another matter which the judge also answered, but when another juror asked a question about a third matter the judge told the jury to confer further and he would if necessary reread all his instructions. Wilson distinguished Walsh, supra, and other similar cases on the grounds that the jury had been given an adequate instruction in the first place and that the judge did not deny but merely deferred the request until such time as an answer might appear necessary. Manifestly, a question from a single juror is crucially different from one asked by the jury as a whole. In the first instance, the questioner can be referred to his colleagues who presumably understand; in the second, reference to or among colleagues has presumably already proven inadequate.


author: OAKES, Circuit Judge:

text:
    Joseph W. HALEY and Henry Whitney, as Trustees of the International Association of Bridge, Structural and Ornamental Iron Workers, Local 417 Training and Education Fund, Plaintiffs-Appellants, v. Robert PALATNIK et al., Defendants-Appellees.
    No. 399, Docket 74-1948.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 4, 1974.
    Decided Jan. 24, 1975.

      John R. Harold, New York City, for plaintiffs-appellants.
    Mitchel B. Craner, New York City (Guazzo, Silagi & Craner, P. C., Stephen E. Klausner, New York City, of counsel), for defendant-appellee Palatnik.
    David W. Silverman, New City, N. Y. (Granik, Garson, Silverman & Nowicki, New City, N. Y.), for defendant-appellee Rose.
    Before KAUFMAN, Chief Judge, and ANDERSON and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

The sole question presented by this appeal is whether the federal courts have jurisdiction to provide relief in connection with an alleged conspiracy by the trustees of a Labor Management Relations Act (Act) trust fund, to divert money from that fund to one of the union trustees. Suit was brought under § 302(e) of the Act, 29 U.S.C. § 186(e), but no pendent claim under state law was asserted. The district judge, Lloyd F. MacMahon, for the United States District Court for the Southern District of New York, held that relief was available only under state law and could not be obtained in a suit resting solely upon the federal statute. Haley v. Palatnik, 378 F.Supp. 499 (S.D.N.Y.1974). Although we agree with much of his opinion which both details the facts here and expounds the law relating to § 302 trusts, we disagree with his ultimate conclusion and reverse and remand for the reasons below.

The facts, encapsulated, are these. Pursuant to a 1967 collective bargaining agreement between the International Association of Bridge, Structural and Ornamental Iron Workers, Local 417 (the union), and several employers, an Apprentice Training Fund was set .up to defray the costs of apprenticeships in the employees’ trades. The fund was created in accordance with § 302(c)(6) of the Act, 29 U.S.C. § 186(c)(6), which requires, among other things, that the fund be managed by an equal number of employer and employee representatives as trustees. Willis C. Rose, the appellee, served as one of the two union trustees of the education fund. He was also the president of the union (an unpaid position) and assistant business agent for the union (a paid position). The other union trustee (and also paid union business agent) was William Mims. In 1972 the fund had income of $60,170 (in part from an employer contribution first of 8 cents, then 4 cents per union-manhour worked) and disbursements of $15,492; in 1973 it had income of $34,406 and disbursements of $15,199; and in the first six months of 1974 gross receipts of $12,796.68.

In March, 1973, Rose discussed with Joseph Albenda, an employer trustee of the fund, the appointment of a fund administrator. Although the need for an administrator had been discussed as early as 1970, Rose testified that his discussion with Albenda was precipitated by Albenda’s awareness that Rose (and Mims) had internal political trouble with the union members and were facing the likelihood of a difficult election. Albenda suggested that if either Rose or Mims were named administrator, the salary from the position could be used to defray the expenses incurred during an election campaign. In short, there is every indication that Albenda, an employer representative, was at the very least interested in keeping Rose and Mims in their positions with the union.

In May, 1973, Rose was removed as assistant business agent by the union membership. He was facing another election (for president) in June, 1973, and his ouster from that position appeared imminent. After an executive board meeting immediately following the May meeting Mims suggested to Rose that the latter become fund administrator; Rose allowed that if he should lose the election for president he could use the fund administrator’s position as a “back-up job.” A contract between the fund and Rose as fund administrator was drawn up by union counsel and, with minor modifications, signed by Mims, Albenda and Robert Palatnik, the other employer trustee. The contract gave Rose $30,607 per year, more than the net income of the fund in 1973 and its anticipated gross receipts in 1974. Judge MacMahon found as follows:

Albenda explained to Mims that he signed the contract because he thought Mims was doing a fine job as business agent and did not want Mims to be defeated in the election for business agent.
The evidence clearly shows a conspiracy by Albenda, Rose, and perhaps others, to divert trust fund monies to Rose, as Fund administrator, an obvious breach of their fiduciary duty to the Fund.

378 F.Supp. at 507 — 508. But the court below went on to say that

There is no evidence, however, which shows that Rose, Mims, Albenda or Palatnik attempted to use the structure of the Fund to disguise or facilitate direct or indirect employer payments to Rose. All payments of money to Rose, as administrator, were to be made out of Fund monies, and the evidence contains no suggestion that any payments were made by any employer to Rose at any time. The evidence does not show that Rose, the prime mover in acquiring the administrator’s job for himself, made any threats or promises to either of the employer trustees to induce them to sign the contract, or that they demanded or expected anything in return for their. signatures.

378 F.Supp. at 508. Accordingly, the court held that:

The trustees’ conduct constituted no more than a simple breach of their fiduciary duty to the Fund, conduct which does not come within § 302 of the Act and which presents an issue not now before us.

Id.

The contract was dated May 29, 1973. Rose remained as president of the union until July 1, 1973, after defeat in the June 30 election. He assumed his duties as fund administrator on July 2, 1973.

We agree with the district court’s conclusion that conduct constituting no more than a simple breach of fiduciary duty to a § 302(c) trust does not come within the prohibition of the Act per se. Bowers v. Ulpiano Casal, Inc., 393 F.2d 421, 424-426 (1st Cir. 1968). See cases cited in Haley v. Palatnik, 378 F.Supp. at 505 n. 22; Note, 72 Harv.L.Rev. 778, 780 (1959). But see, e. g., Lewis v. Mill Ridge Coals, Inc., 298 F.2d 552, 558 (6th Cir. 1962). Section 302(e) gives district courts jurisdiction only “to restrain violations of this act.” See Bowers v. Ulpiano Casal, Inc., 393 F.2d at 425-426.

But the conduct here, in our view, amounted to a “violation of the act.” The Act, which was principally intended to protect the collective bargaining process by eliminating the corruptive influence of side payments by employers to union representatives, 2 U.S.Code Cong. & Admin.News, 86th Cong., 1st Sess., at 2326-2327 (1959), prohibits anyone

who acts in the interest of an employer to . . . agree to pay, lend, or deliver, any money or other thing of value (1) to any representative of any of his employees ... or (4) to any officer or employee of a labor organization . . . with intent to influence him in respect to any of his actions, decisions, or duties

To be sure, the provisions of § 302 are not applicable under subsection (c) thereof, 29 U.S.C. § 186(c)(5) and (6):

(5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents Provided, That . . . (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and. employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district-court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; .
(6) with respect to money or other thing of value paid by any employer to a trust fund established by such representative for the purpose of pooled vacation, holiday, severance or similar benefits, or defraying costs of apprenticeship or other training programs: Provided, That the requirements of clause (B) of the proviso to clause (5) of this subsection shall apply to such trust funds. .

Literally construed, the contributions made by the employer were “to a trust fund” under clause (6) and concededly the provisions of clause (B) of the proviso to clause (5) were met. But this does not end the.case here, since it was the employer representatives who arranged for payments to Rose from the fund. There is nothing to require that, in order to constitute a violation of § 302(a) and (b) the moneys agreed to be paid to the union representative or official be paid from the employer’s funds. United States v. Iozzi, 420 F.2d 512, 515 (4th Cir. 1970), cert. denied, 402 U.S. 943, 91 S.Ct. 1607, 29 L.Ed.2d 111 (1971). While the district court relied on the fact that none of the employer’s contributions were specifically earmarked for Rose’s use, this is not required. What the Act does require for a violation is that an employer or a representative of the employer pay, or agree to pay, a union official, with intent to influence him in his actions, decisions or duties.

Albenda and Palatnik, both employer representatives, agreed to the contract with Rose, a union representative. Without Albenda’s and Palatnik’s assent, there could have been no contract. The only remaining question is whether there was evidence to show that the employer representatives acted, in the language of the Act, “with the intent to influence” Rose in his conduct as a union representative. As has been noted, Judge MacMahón found that there was neither proof that Rose made threats or promises to induce the employer trustees to sign the contract nor proof that the employer made demands on Rose. But Albenda initiated the discussion with Rose regarding appointment of a fund administrator at a time when Rose was facing ouster by the union. The inference that Albenda wanted to retain Rose in his union post for the employer’s benefit is one that is not altogether farfetched. Not insignificant is Albenda’s explanation to employee trustee Mims that Albenda signed the contract because he thought Mims was doing a fine job as business agent and did not want him to be defeated in the upcoming union election. 378 F.Supp. at 507. As we read the trial court’s opinion, Albenda’s actions were at the very least an attempt to curry favor with Mims and Rose. If this was the purpose, and it was to influence them favorably in conduct of union business with the employer, there was a violation of the Act.

Arroyo v. United States, 359 U.S. 419, 79 S.Ct. 864, 3 L.Ed.2d 915 (1959), held that embezzlement by a union official of funds paid to a trust fund was not a violation of the Act. The Court pointedly noted, however, that “The good faith of the employers in delivering the two checks to the petitioner — their intent that the money go to the welfare fund created by the collective bargaining agreement — was not questioned . ..” 359 U.S. at 423, 79 S.Ct. at 867. Here the intent was clear, and the trial court found, that the money going to the education fund, or a major part of it, would be diverted to the personal profit of the union official. As the Court in Arroyo said, “Both [representative and employer] would be guilty if the payment were ostensibly made for one of the lawful purposes specified in § 302(c) if both knew that such a purpose was merely a sham.” 359 U.S. at 424, 79 S.Ct. at 867 (emphasis added). This seems to us exactly what may have here been involved — a sham. Not only did the trustees agree to aid Rose after the loss of his paying union job, but the salary agreed upon, $30,607 per year, was in excess even of the gross receipts, let alone the net income of the fund under the 4 cents per employee hour employer contribution in effect at the time of the execution of the agreement. At that time the trustees were plainly aware that every cent to be paid by the employer would go to Rose. Which is not to say that, for relief to be available, it is necessary that every cent paid by the employer go to the union representative; it is enough that both employer and union representative knew the purpose of the payment to the fund was a sham or that the fund was simply a conduit for the employer payment.

To hold otherwise would be to render the Act practically useless. Trust funds would with employer-union agent connivance become a means to siphon from the employer payments to the union official who would thus become recipient of the employer’s (or his trustee representatives’) bounty.

Nor is this to say that we construe the federal statute here in issue to open the federal court to suits relating to management of LMRA trust funds. Where payments are lawfully made in good faith by the employer to the trust fund so that the provisions of § 302(c) come into play, the doors of federal court remain shut and breaches of fiduciary duty occurring thereafter are not violations of the old federal law. Bowers v. Ulpiano Casal, Inc., supra. But where, whether or not as a result of or in connection with a breach of fiduciary duty, the employer or his representative pays or agrees to pay, even indirectly through the use of trust funds, a union representative for a prohibited purpose, the Act applies.

While it could be argued that Rose was not a representative or official of the union at the time he assumed his duties as fund administrator, the employer trustees “agreed to pay” him while he was still one, president, and it is that agreement which § 302(a) prohibits.

We therefore remand for findings on the questions whether Albenda and Palatnik, or one of them, intended to influence Rose or Mims, or both of them, in respect to any of their actions, decisions or duties as union representatives, a matter which the findings below insufficiently explicate.

Judgment reversed and cause remanded.

      . Specifically, appellants are seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 invalidating a contract between the former trustees and the union president. In addition, the appellants are seeking an injunction to restrain the present trustees of the fund (apparently including themselves) from making payments on the employment contract.

      . Indications were that the total income from the fund in 1974 would have been less than $25,000.

      . In addition, the Act was intended to prohibit employee representatives from engaging in extortion against their employers. 29 U.S.C. § 186(b). See generally 2 U.S.Code Cong. & Admin.News, 86th Cong., 1st Sess., at 2328-2331.

      . Although Rose alone was to be paid as the fund administrator, the testimony indicated that Mims would benefit from Rose’s accepting the position. With Rose in a better financial position, more money would apparently have been made available to Mims in connection with his own union election.

      . The recently enacted Pension Reform Act, Pub.L. No. 93^06, §§ 401-05 (Sept. 2, 1974), does create a federal cause of action for breach of fiduciary duties in connection with this kind of plan, but that act evidently does not apply to the conduct involved in this suit since its effectiveness, § 414, is subsequent thereto.


author: LIVELY, Circuit Judge.

text:
    U. S. FIBRES, INC., a Michigan Corporation, Plaintiff-Appellant and Cross-Appellee, v. PROCTOR & SCHWARTZ, INC., a Pennsylvania Corporation, Defendant and Third-Party Plaintiff-Appellee and Cross-Appellant, v. U. S. EQUIPMENT COMPANY, a Michigan Corporation Third-Party Defendant-Appellant and Cross-Appellee.
    Nos. 73-2091 to 73-2093.
    United States Court of Appeals, Sixth Circuit.
    Jan. 17, 1975.

      William H. Merrill, Detroit, Mich., Paul L. Nine, Carl J. Marlinga, Warren, Mich., for plaintiff-appellant.

      Neill T. Peters, F. R. Damm, Detroit, Mich., for defendant-appellee.
    Before CELEBREZZE and LIVELY, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   LIVELY, Circuit Judge.

In this diversity action the purchasers of manufacturing equipment sued the seller-manufacturer for damages. The plaintiffs sought to recover for alleged breach of express and implied warranties, fraud and negligence. In its counterclaim the defendant sought recovery on an account, which was undisputed, and damages allegedly incurred by it as the result of fraudulent misrepresentations of the plaintiffs. Following two lengthy hearings the district court entered judgment in favor of the defendant on all claims of the plaintiffs and on the stated account. The counterclaim based on fraud was dismissed. We affirm.

A complete statement of the facts and legal issues as developed in the district court is set forth in its opinions which are reported at 358 F.Supp. 449 and 358 F.Supp. 467. In dealing with the appeal we will attempt to avoid unnecessary repetition of matters covered in the reported opinions. The plaintiffs will be referred to as Fibres and the defendant as Proctor. The Uniform Commercial Code (UCC) applies to the transactions between the parties and they provided that the law of Pennsylvania governs the construction and interpretation of their written agreements. The various issues on appeal will be treated separately, though briefly, in view of the extended treatment of each by the district court.

The two contracts clearly contained an express warranty against defects in materials or workmanship. Proctor spent large sums in replacing and reworking portions of the equipment which were admittedly defective. However, Fibres maintains that other express warranties were created by detailed description of the ovens in the typewritten portion of the contracts and that these warranties could not be excluded by inconsistent disclaimer language appearing in later printed portions of the contracts. This argument overlooks the fact that both contracts, in the typewritten portions and before the description of the ovens, under the heading PERFORMANCE, provided that “in view of the variables present effecting (sic) the capacity of the machine, no guarantee can be extended.” Immediately following this disclaimer was a statement that “the Company’s standard warranty outlined later in this contract does apply.” The printed warranty clause, identical in both contracts, was as follows:

LIABILITY CLAUSE: The Companys liability hereunder shall be subject to the following:
General:
1. The Company warrants the machine against defects in materials or workmanship, but makes no other warranties, express or implied (except as set forth under “Patents”) unless the word “guarantee” is used. Warranties of merchantability or of fitness for a particular purpose or arising from a course of dealing or usage of trade, are specifically excluded. The Purchaser agrees that any affirmations of fact, description of the machine or sample or model machine herein referred to, whether or not the same relate to production or capability of the machine to perform, are not the basis of this contract, unless the word “guarantee” is used in connection therewith, in which case the same shall be express warranties.

Between the two disclaimers was the description upon which Fibres relies for its claim of express warranties. In the first contract the pertinent language was: “This conveyor is especially designed to hold a tolerance of ± 1/32" across the width of the batt, based on a 30 pound per square foot compressive force.” The second contract stated that —-“This conveyor is especially designed with a deflection tolerance of ± 1/32" across each conveyor plate. This deflection is further based on a uniformly distributed load of 30 pounds per sq. ft.” It is provided in UCC § 2-313(l)(b) that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Exclusion of express warranties is permissible under § 2 — 316(1) of the UCC, which provides that language or conduct creating warranties and that tending to negate them “shall be construed wherever reasonable as consistent with each other. . . . ”

If the machinery involved had been tried and proven in the manufacturing process in which Fibres intended to employ it, or if it had been sold by specification alone, the description might be held to create an express warranty. S — C Industries v. American Hydroponics System, Inc., 468 F.2d 852 (5th Cir. 1972). However, the evidence fully supports the finding of the district court that the parties were attempting to put together a combination of machinery to fabricate a product by an “unproven process.” Furthermore, the general manager of Fibres, Mr. Steuernagel, was fully aware of the “variables” referred to in the disclaimer of guarantee of performance. The language of description referred only to the expectations of the designers and in no way guaranteed that these expectations would be met. Furthermore, there is substantial evidence that executives of Fibres who participated in the purchase of the equipment never expected it to produce finished pads having a thickness tolerance of ± 1/32 inch across their width. Thus, this descriptive language was not “part of the basis of the bargain.” UCC § 2-313(l)(b). The district court correctly determined that the language which excluded an express warranty was not inconsistent with the language of description, UCC § 2-316(1), and gave it effect.

Fibres contends that it was entitled to recover under implied warranties of fitness for a particular purpose and of merchantability. An implied warranty of fitness for a particular purpose exists only “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods . . ..” UCC § 2-315. There is abundant factual support in the record for the district court’s finding that Fibres, acting through its agent Steuernagel, did not rely on Proctor’s skill or judgment in selection of the equipment with which it proposed to make dry resinated pads by Steuernagel’s new “secret process.” Therefore, there could be no implied warranty of fitness.

Reliance upon the seller is not a requirement in the case of implied warranties of merchantability. If the seller is a “merchant,” such a warranty is implied in every contract for the sale of goods “[u]nless excluded or modified.” UCC § 2-314. This warranty may be excluded only by language which mentions merchantability and is conspicuous. UCC § 2 — 316(2). The exclusion in this case, which was contained in the previously quoted liability clause, used the word “merchantability.” Thus, the question is whether this disclaimer was “conspicuous” as defined in UCC § 1 — 201(10):

(10) “Conspicuous”: A term or clause, is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. But in a telegram any stated term is “conspicuous.” Whether a term or clause is “conspicuous” or not is for decision by the court.

Fibres relies principally on Boeing Airplane Co. v. O’Malley, 329 F.2d 585 (8th Cir. 1964), which applied Pennsylvania law in holding that a disclaimer “in the same color and size of other type used for the other provisions” of a contract was not conspicuous. Id. at 593. In that case the court was dealing with a warranty of fitness for a particular purpose rather than one of merchantability. A fundamental question was the meaning of “as is” in the dealings between the parties. In the present case the heading under which the disclaimer appeared met the requirement of § 1— 201. Neither in Boeing, supra, nor in the Pennsylvania cases relied on by Fibres, is it clear that the court considered contracts in which a heading in bold-type capital letters of the same size as all other headings, appeared at the beginning of the exclusion clause. We do not read these cases as holding the Pennsylvania rule to be that there can be no disclaimer as a matter of law if type of the same color and size is used in the text even though the heading is in capital letters.

It is significant that the official UCC comments under Section 1 — 201(10) state—

10. “Conspicuous.” New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it.

As we have pointed out, near the beginning of each contract, in the typed portion where guarantee of performance was excluded, there was a reference to “the Company’s standard warranty outlined later in this contract.” From exhibits introduced by Proctor it is clear that the liability clauses of the contracts were scrutinized with care by Fibres. One examining these contracts was put on notice by the early disclaimer of performance that only the standard warranty of Proctor applied. The testimony of Fibres executives was that they were familiar with the contents of the printed portions of the contract. There was no surprise. Knowing that they were employing an untried combination of components, which had been successfully operated separately but not together, in an attempt to produce a familiar product by a new process, the principals of Fibres could not realistically have expected Proctor to extend the warranties which they now claim. Under the facts of this case the district court correctly held that attention could reasonably be expected to be called to the disclaimer. Conspicuousness is a question of law for the court. Adams Van Service, Inc. v. International Harvester Corp., Pa. Court of Common Pleas, Allegheny County (1973), 14 UCC Rep. Serv. 1142.

In denying Fibres’ claim based on fraud the district court found that Proctor made no material misrepresentations of fact. Upon conflicting evidence the court determined that it had never been the intention or understanding of the parties that Proctor guaranteed that the equipment would produce pads of uniform thickness. Having had no experience with this particular operation, Proctor could only give an opinion as to how the equipment would perform. Furthermore, the claim of Fibres that Proctor concealed its knowledge from Fibres that the equipment would not produce pads of uniform thickness is not borne out by the record. Fibres officials Clapp and Steuernagel testified that Proctor’s chief inspector told them before production began that he did not believe it was possible to maintain a tolerance of 1/32 inch across the pads with the type conveyor that was being used. When Christianson, a sales representative of Proctor, referred to this tolerance it was never with reference to the finished product. He described the success of the dryer in a different procedure and predicted similar results using Steuernagel’s “secret process.” This and other evidence relied upon by Fibres fell far short of establishing the elements necessary for proof of fraud.

All of the foregoing issues were decided by the district court on a motion for an involuntary dismissal under Rule 41(b), Fed.R.Civ.P. The court incorporated findings of fact in its opinion granting the motion, and we apply the “clearly erroneous” standard of review prescribed by Rule 52(a). Though there was a great deal of conflict in the testimony of witnesses, the findings of the district court are supported by substantial evidence and may not be set aside by this court. Furthermore, no erroneous application of rules of law to these facts has been demonstrated by Fibres.

Following the second hearing the district court made a finding of no actionable negligence on the part of Proctor. The recitation by the court of numerous problems encountered by Fibres in attempting to produce satisfactory batting is not inconsistent with this finding as Fibres contends. At the request of Fibres these problems were treated as defects in materials or workmanship and were remedied by Proctor at its own expense. Once these extended repairs were completed the ovens operated properly until Fibres went out of business. In finding that Proctor was not negligent either in design or manufacture the District Judge made a detailed analysis of the design and manufacture of the equipment. The finding is not clearly erroneous and may not be set aside by this court.

Having found no negligence on the part of Proctor the court had to consider the issue of contributory negligence only as it related to Proctor’s counterclaim. The evidence clearly supports the finding that as early as June, 1966 Fibres seriously overloaded the equipment. However, the court also found that there was no proof that either party realized at the time that overloading was occurring. It therefore held that Fibres had no duty to advise Proctor of this fact. Since Proctor’s counterclaim was based on the claim that Fibres’ failure to inform it of the overloading constituted fraud, no recovery was allowed. In view of these holdings it is clear that no damages were withheld from Fibres or awarded to Proctor by the district court on the basis of its findings with respect to overloading the equipment. Thus the extensive discussion in briefs of the existence and extent of overloading is immaterial in view of our conclusion that the district court’s findings on the negligence claim and the counterclaim for fraud must stand.

This court’s determination that the district court correctly denied any recovery by Fibres renders extended discussion of the clauses which limited damages under the contracts unnecessary. However, we note that UCC § 2-719 permits limitation or exclusion of consequential damages so long as it is not unconscionable. Unconscionability rarely exists in a commercial setting involving parties of equal bargaining power. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300 (S.D.N.Y.1970), aff’d, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971). See also Cryogenic Equipment, Inc. v. Southern Nitrogen, Inc., 490 F.2d 696 (8th Cir. 1974); K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970), 7 UCC Rep.Serv. 679.

The record supports the district court’s finding that “ . . . there was uneven resin distribution in much of plaintiff’s product.” Such uneven resin distribution explained the lack of uniform thickness in the pads, according to credited testimony. Thus, even if it were held that express and implied warranties existed with respect to the thickness tolerance of the pads or that Proctor did misrepresent the capability of the equipment to produce pads of uniform thickness, Proctor’s derelictions would not have been the cause of Fibres’ claimed losses. The one component of the entire production line that was clearly the responsibility of Fibres was the “lawn fertilizer spreader” which introduced dry resin into the cotton fibres to produce dry resinated pads. As the district court noted, the dryer “only receives what is fed into it.” If Steuernagel’s method of introducing the resin in this manner failed to produce an even distribution and this failure sufficiently explains the uneven thickness of the finished pads, the deficient result cannot be charged to Proctor under any theory of law.

Separate appendices were filed by the parties to this appeal. Rule 30 of the Federal Rules of Appellate Procedure provides for a single appendix. Furthermore, the brief of appellants exceeded the length permitted by Rule 28(g), Fed. R.App.P. Failure to follow these rules results in an unwarranted burden on the court.

Affirmed on appeal and cross-appeal. Each party will bear its own costs.


text:
    Robert LYTLE, Appellee, v. COMMISSIONERS OF ELECTION OF UNION COUNTY et al., Appellants. Thomas C. McCAIN et al., Appellees, v. Charles E. LYBRAND et al., Appellants.
    No. 74-1619.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1974.
    Decided June 17, 1974.
    Certiorari Denied Nov. 25, 1974.
    See 95 S.Ct. 515.

      C. Tolbert Goolsby, Jr., Deputy Atty. Gen. of S. C., Karen LeCraft Henderson, Asst. Atty. Gen. of S. C. (Daniel R. McLeod, Atty. Gen. of S. C., Bruce W. White, Union County Atty., and Charles W. Coleman, Edgefield County Atty., on brief), for appellants.
    David Ross Clarke and James Jacob-sen, Mauldin, S. C., for appellee Robert Lytle.
    Armand Derfner, Charleston, S. C. (Epstein & McClain, Charleston, S. C., Laughlin McDonald, Morris Brown, Atlanta, Ga., Emily Carssow, Athens, Ga., and Neil Bradley, Atlanta, Ga., on brief), for appellees Edgefield County.
    Before CRAVEN, RUSSELL and FIELD, Circuit Judges.
   PER CURIAM:

The plaintiffs in these two cases challenge the constitutional validity of the statutory provisions for the election of the members of the Boards of Control of Union and Edgefield Counties, South Carolina. In both Counties the members of these governing Boards are elected at large but each member must reside in separate fixed districts of the County. The districts vary in population — substantially so in Union County — and in classification between urban and rural. Because both actions involved the same legal principles, they were consolidated for hearing and were disposed of in a single decree in the District Court and have been heard in this Court together.

In its decree, the District Court held that, since the, several districts in the two Counties were “of unequal proportion” in population and “finding neither rational nor compelling circumstances justifying the formation of the unequally populated districts”, the residency requirements for members of the two Boards were “violative of the ‘one-man, one-vote’ principle and are constitutionally unacceptable.” It granted the Counties until May 1, 1975 to enact a plan for the election of the members of the two Boards that would comply with the constitutional standards as it had stated them and ordered by way of temporary relief that the nomination and election of such members for the currently slated 1974 election be at large without any residency requirements. In order to make effective this latter remedy, it ordered reopened the filing date of candidates for nomination in the party primaries to be held on July 16, 1974.

The defendants have appealed and, in connection therewith, have sought from the District Court a stay of its order pending disposition on the merits. When that application was denied, they applied to this Court for a stay under Rule 8(a), F.R.A.P. At the hearing on the motion to stay, it was agreed that the motion for a stay and a hearing of the appeal on the merits could be appropriately heard together and a determination on the merits would be dispositive of the motion to stay. We proceed accordingly to a consideration of the merits of the controversy.

The Supreme Court has not decreed absolute rigidity in the application of the “one man, one-vote” rule as enunciated in Wesberry v. Sanders (1964) 376, U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, and succeeding cases, to elections to public office at all levels of federal and state government. In congressional elections, for instance, “only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown” are constitutionally permissible. Kirkpatrick v. Preisler (1969) 394 U.S. 526 at 531, 89 S.Ct. 1225, at 1229, 22 L.Ed.2d 519. Recognizing that such a rule of equal representation could not be automatically applied to local government, and, if applied, might “impair the normal functioning of state and local governments”, the Court substantially relaxed the rule of mathematical exactness for the election of state legislators in Mahan v. Howell (1973) 410 U.S. 315, at 323, 93 S.Ct. 979, at 984, 35 L.Ed.2d 320. In so doing, it accepted the argument that “maintaining the integrity of political subdivision lines” in such elections “is a rational one” and will justify some departure from the rule adopted in Preisler of congressional elections. The “absolute rule” of Preisler has been even further relaxed by the Court in its review of the constitutionality of representational structures at the strictly local governmental level, such as is involved in this case. Cf., Salyer Land Co. v. Tulare Water District (1973) 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659. In these circumstances it was accepted that “each citizen’s constitutional right to equal representation must be reconciled with the need for flexibility in designing local structures.” Note, 72 Mich.L.Rev. 869 (1974). Accordingly, in Dusch v. Davis (1967) 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656, it was held that local government officials elected at large may validly be required to be residents of particular areas or districts within the local governmental unit, even though such areas or districts have wide populational variances. Such decision recognized the wisdom of creating an institutional framework of local government that would assure “that councilmen with knowledge of the particular problems of each of the heterogeneous boroughs would be serving on the council.” Note, 81 Harv.L.Rev. 154. And, because the local unit had a mixed economic base, the guaranty of regional representation under a system of equal voting represented “a sound compromise between urban and rural interests at the local level” and, just as the maintenance of “the integrity of political subdivision lines” provided a rational basis for the population variances in Mahan, so this, attempt to balance urban and rural interests provided a rational basis for the addition of the residence requirement for candidates under a plan of at-large voting. Such a plan does not violate the rationale of the “one-man, one-vote” cases. Its residence requirement constitutes only a basis for qualification of candidates, not for voting or representation. What it seeks is the avoidance of that “uniform straitjacket * * * in devising mechanisms of local government suitable for local needs and efficient in solving local problems”, deplored in Avery. As a matter of fact, the members, elected at-large, are answerable to and are representative of the entire constituency. The value of the residency provision, though, is that it provides an additional mechanism whereby territorial interests may be articulated through a representative who, though elected by the voters of the County as a whole, has a unique awareness and understanding of the problems and interest of the subdivision. This is a legitimate interest to be considered in fashioning a plan of local government.

Of course, there are limits to this electoral flexibility for local governmental units. When the residential areas are so drawn as to make it possible for the minority in numbers, whether it be urban or rural, to control the governing board, such an arrangement will transcend the constitutional bounds authorized under Dusch. The heart of Dusch is its approval of a “rational” balancing of interests, with appropriate regard for the distribution of population, in the constituency of the local governing board. It assumes the fairness of a scheme that allows some force to territorial interests, but at the same time it requires that the accommodation of territorial interests shall not nullify what are the proper rights of the majority in population. Accordingly, if the plan of election arbitrarily overbalances rural over urban or vice versa, judicial remedy is available. It was because of such a situation that an earlier plan involving the governmental unit in Dusch was judicially disapproved and the “Seven-Four” plan was devised.

The plaintiffs assert that any plan that detracts in any particular from an absolute rule both for voting and for residence of candidates is invalid. In the context of fixing the structures of local governmental units there may be relaxation of the absolute rule, if the reason therefor is as stated in Mahan, “rational”. An attempt through a residency requirement to strike a balance between the interests of the rural and urban areas in a county, provided voting rights for both areas are protected by at-large elections, meets the “rational” test. The plaintiffs, however, argue that if the defendants wish to support the residency requirement by this type of balancing, they are obligated to assert such claim affirmatively in their pleadings and to sustain it with proof. They contend the defendants have made no such affirmative showing. However, it is obvious from an official map of the two counties and the listing of the populations in the several districts of the political units that there are urban and rural areas fairly well defined in the counties involved. Thus, Union district, with over 58% of the County’s population qualifies as an urban area; similarly, Goshen Hill district, with a population of 561, would be fairly characterized as agricultural. These are merely common-sense deductions from admitted facts. It thus takes no elaborate record to establish what is so manifestly obvious and what is actually inherent in the plaintiffs’ own argument; /. e., that the several plans deal with and seek to establish some sort of accommodation between urban and rural interests. Dusch declares such an attempt at adjustment between varying interests in a local unit is “rational” and valid.

It remains to ascertain whether the residential requirements for representation as devised in the statutes under review represent a proper constitutional balance of these urban and rural interests. To determine this, we must examine the workings of the plan in each county separately. So examined, we conclude the plan followed in Union County will not meet constitutional standards. There is no “Seven-Four” plan here such as there was in Dusch. The urban area as represented by the Union district, with, as we have observed, 58% of the County’s population, is entitled to but a single resident member on the eight-man Board. Stated more particularly, Union district, with a population of 17,127, and Goshen Hill district, with a population of 561, would, under the statute challenged, have the same residential representation on the Board of County Control. There are no “floating” members as in Dusch to compensate for the very substantial variations in population among the districts. The District Court properly, therefore, found under these circumstances that the statutory plan of selection in Union County was invalid.

It does not follow, however, that, because the present statutory scheme in Union County is invalid, the proper temporary or transitional remedy is the complete invalidation of the residence requirement for the approaching election, while affording the legislature an opportunity to develop its own plan between now and 1975. After all, there is an obligation on the Court to fashion even its transitional remedy by taking into consideration what obviously was the legislative purpose in devising the plan it did and to depart as little from that purpose as constitutional principles will permit. To strike down completely all residence requirements would mean that the urban area of Union could completely dominate and control the Board, leaving the rural areas of the County without any representative to voice their peculiar and unique territorial interests. That was a result the legislature manifestly sought to avoid. In decreeing transitional relief, the Court should not disregard that legislative purpose. Accordingly, the remedy adopted should be one that recognizes and gives proper effect to the population variances among the districts as well as the economic differences among them. It was the virtue of the Dusch plan that it did exactly that. It accomplished that result by requiring a number of “floater” representatives, without any residence requirements, while retaining a certain number of representatives with residence requirements. Under the plan, the urban areas, which represented the majority in population, could conceivably achieve a numerical majority on the Board but the rural areas, despite their minority in population, were assured reasonable representation for the representation of their interests on the Board. That, it seems to us, should be the transitional remedy ordered in the Union case. A “Four-Four” plan is readily adaptable to the situation and will achieve the same kind of fairness as resulted from the plan approved in Dusch. Specifically, four members of the Board would be nominated and elected without residence requirements and four would be elected with residence requirements. The resident requirement for the latter four would contemplate that the eight districts in the County should be grouped by combining two districts and by providing that each such group of two districts should be entitled to have as a member of the Board one of its residents, elected, of course, by the voters of the entire County. In making the groupings, the most populous district might first be coupled with the least populous, and in the subsequent groupings, the same procedure of joining the most populous district then remaining with the least populous would be followed. This is purely a suggestion and the parties are at liberty to submit any alternative plan to the District Court that may be deemed consonant with the principles set forth herein, provided they act promptly and do not delay unduly the electoral processes.

This remedy, it should be observed, is only decreed for the approaching election. It is not intended to be a permanent plan for the election of the members of the Board. A permanent plan should be a legislative responsibility and only in default of any valid legislative action should the judiciary interfere. It should be remarked, too, that there is no claim of any racial discrimination cláimed to result from the present statutory plan.

As a result of our modification of the plan adopted by the District Court for the approaching election, it will be necessary to provide for the reopening of the election machinery for the election of members of this Board in Union County. To the end that this may be done promptly and expeditiously, this cause will be remanded to the District Court to enter such administrative orders as may be appropriate and, in order that such Court may not be delayed in discharging this responsibility, the mandate herein shall issue forthwith.

So far, we have dealt only with the Union County plan. We are of the opinion that the Edgefield County plan, .as presently provided by statute, represents a proper balancing of interests and without such population variances among the districts as to require the deletion on constitutional grounds of the residence requirements imposed by the statute under attack. There is not the wide disparity in population among the districts as was the case in Union County. It is not obvious that a minority, either in numbers or in territorial or economic interest, can dominate the Board. The several districts are of sufficient size and numbers that a residence requirement does not appear to be an irrational method of achieving a form of county government, elected by all the voters of the County but, through its residence requirement, assuming some attention to territorial interests. We conclude, therefore, that the District Court was in error in invalidating the statutory election procedure for the members of the Edge-field County Board.

The decree of the District Court invalidating the statutory provisions for the election of members of the governing board of Union County is accordingly affirmed, but the transitional remedy for use at the current election of members of such Board is reversed, and the cause is remanded to the District Court with directions for the entry of an order for transitional or temporary relief as hereinbefore stated.

The decree of the District Court invalidating the statutory provisions governing the election of members of the Edge-field County Council is reversed.

Affirmed in part and reversed in part.

      . The Board of Township Commissioners and County Supervisor constitute “the governing board of Union County.” § 14-3464, Code of Laws of South Carolina, 1962, as amended by 52 Stat. Act No. 860 at 2152 (1962). .
      The County Council is the governing body of Edgefield County. 57 Stat. Act No. 521 at 989 (1971).

      . 338 S. C. Joint Acts and Resolutions 555, as amended; and 14-1850, Code of Laws of South Carolina, 1962, as amended.

      . 410 U.S. at 329, 93 S.Ct. 979.

      . 81 Harv.L.Rev. 155.
      This idea was expressed by the Court itself in these words [387 U.S. at 117, 87 S.Ct. at 1556]:
      “The Seven-Four Plan seems to reflect a detente between urban and rural communities that may be important in resolving the complex problems of the modern megalopolis in relation to the city, the suburbia, and the rural countryside.”

      . For a recent statement of the value of the residency requirement in situations such as is present here. See Bilzin, Reapportionment in the Sub-State Level of Government: Equal Representation or Equal Vote, 50 Boston U.L. Rev. 231, 251:
      “The problems involved in creating effective representation involve more than merely shifting numbers; the use of techniques such as residency requirements may prove beneficial. Members elected under this type of requirement tend to be men of broader backgrounds, more accessible to their constituencies, better informed and more sensitive to the needs of the various districts than those who are not.”

      . Avery v. Midland County, Texas (1968), 390 U.S. 474 at 485, 88 S.Ct. 1114 at 1120, 20 L.Ed.2d 45.