author: PECK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jack BILLINGSLEY, Defendant-Appellant.
    No. 72-1645.
    United States Court of Appeals, Sixth Circuit.
    Feb. 21, 1973.

      Ivan E. Barris, Detroit, Mich., for defendant-appellant.
    James W. Russell, Asst. U. S. Atty., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Flint, Mich., on brief.
    Before PECK and MILLER, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   PECK, Circuit Judge.

The appellant was tried before a jury and convicted of a violation of 18 U.S.C. § 1951, known as the Hobbs Act, which amended the Anti-Racketeering Act, for forcing the hiring of unwanted and superfluous workers by threatening a work stoppage. The case arose from an incident growing out of the construction of a warehouse in Flint, Michigan, to be built directly under some high tension lines which ran perpendicular to the length of the warehouse. Six high tension lines crossed the warehouse, each one of which carried 138,000 volts of electricity.

The construction company, the W. H. Mechem Company, arranged in advance with the power company to de-energize the three lines closest to that portion of the warehouse directly beneath the high tension wires. On the Sunday morning when this work was to be done, the appellant, the business agent of the union local, whose duties included allocation of manpower, arrived at the job site with about ten experienced journeymen iron-workers. He had a conversation with Dewey Mechem, the job manager, which formed the basis for the appellant’s eventual conviction.

Of the 12 ironworkers on this job, one was a “book man” '(an experienced journeyman tradesman) from another local, and 11 were “permit men” (available men who were given permits to work by the business agent of the local union); permit men are less experienced than book men. Mechem testified that the appellant stated that unless he hired five of the men with him he would shut the job down by causing a labor dispute. The appellant testified that he requested, out of a concern for safety, that five journeymen ironworkers be hired because of their greater experience. The five men were hired, although a foreman testified that he had to shut down a crane at noon because he could not get any work out of the five men hired at the insistence of the appellant. In addition, evidence was introduced which tended to show that the men with the appellant had been drinking prior to the time they arrived at the job site.

At trial, the central theory of the defense was that the appellant was acting in his capacity of business agent for the union local and was motivated by a concern for the safety of the men. Accordingly, the appellant contends that when the District Court agreed to give the government’s proposed instruction No. 1:

“I charge you that under the statute it is not necessary that Mr. Billingsley received any direct benefit; as used in the statute, the term extortion includes obtaining from any employer by the use of actual or threatened force, violence and fear, money in the form of wages to be paid to employees for imposed and unwanted services.”

the defense was entitled to have its proposed instruction No. 3 given to the jury. The appellant argues that this instruction sets out the accepted principle that the Hobbs Act does not curtail legitimate labor demands:

“Ladies and gentlemen of the jury, the anti-racketeering statute under which the charges are based has no reference or bearing on action by a labor leader, honestly acting and representing members of his union. It has reference to and bears on interference with interstate commerce by the compulsory payment of money extorted by a labor leader. The act clearly is protective to labor organizations, and labor members and their membership, as it is to employers.”

The gravamen of the appellant’s objection is that the government’s instruction fails to state that the Hobbs Act does not prohibit all demands pertaining to a labor dispute, but only prohibits those demands that are motivated solely by an intent to commit extortion. The government’s position is that since this theory of the defense was set forth in the general portions of the Court’s charge, no specific instruction was required. United States v. Wingo, 394 F.2d 484 (6th Cir. 1968). The issue, then, is whether the general charge of the Court contained the substance of the requested instruction. In the relevant part of the Court’s general instruction, the Court instructed the jury that:

“. . . the principal issue before you is the intent with which the defendant threatened to call a work stoppage. The government claims that it was done with the intent and purpose of requiring the Mechem Company to put on and use unwanted and superfluous employees. .The defendant claims that is what was done for the purpose of achieving safety in the work operation. As I have already indicated, the burden is upon the government to prove their claim, or theory, beyond a reasonable doubt.”

This portion of the charge sets forth the theory of each party clearly and concisely. Other instructions described the offense in the terms of the statute. It is not alleged that the jury was either confused or misled. It is presumed that the jury was one of average intelligence which could evaluate instructions describing the offense with reference to the statutory language and setting out the contentions of the adverse parties; this jury sat for two days, and, in light of this and other instructions, must be presumed to have known the elements of the offense with which the defendant was charged and the theories of the defense and the prosecution. United States v. Malfi, 264 F.2d 147, 151 (3d Cir.), cert. denied, 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63 (1959); United States v. Gordon, 242 F.2d 122, 126-127 (3d Cir. 1957).

In addition, the denial of a proffered request which is in any respect incorrect is not error. United States v. Kelly, 349 F.2d 720, 759 (2d Cir. 1965). Although the appellant’s requested instruction stated that legitimate labor activities are not prohibited by the Hobbs Act, it failed to state that the ramifications of legitimate labor activities could become unlawful. See United States v. Green, 246 F.2d 155, 160 (7th Cir. 1957), in which the Court refused to approve a similar instruction that stated only that legitimate labor disputes were not prohibited by the Hobbs Act. Our review of the record of this case and the relevant authorities satisfies us that the appellant was not prejudiced by the Court’s refusal to give this instruction.

Secondly, the appellant contends that the District Court should not have admitted evidence of the appellant’s bad reputation. At least three circuits have considered this question, and each has held that evidence of the defendant’s bad reputation is admissible in a Hobbs Act prosecution to show that the victim of the threats acted out of fear and that the victim’s fear was reasonable. United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530 (1971); Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964); Callanan v. United States, 223 F.2d 171 (8th Cir.), cert. denied, 350 U.S. 862, 76 S.Ct. 102, 100 L.Ed. 764 (1955). The appellant asks that this Court decline to follow these decisions since there is a strong possibility that a defendant will be convicted on the evidence of his bad reputation alone.

We have considered the appellant’s contentions, and the decisions of the Second, Eighth and Ninth Circuits and we find that the reasoning of these decisions is the more persuasive. These decisions rest upon the fact that extortion is an essential element of the Hobbs Act and to prove extortion, it is essential to show that there was a generation of fear in the victim. The reasonableness of actual or anticipated fear is a vital element in these cases, and the reputation of the defendant therefore becomes relevant since such a reputation frequently conveys a tacit threat of violence. Accordingly, the reputation of the defendant is admissible not to show that he was a bad man and likely to commit a crime, but to indicate that the threats of the defendant were not idle. We agree with the other circuits which have considered this question and hold that the evidence of the bad reputation of the defendant is admissible for the limited purpose of showing the fear and its reasonableness caused by the threats of the defendant.

The appellant next contends that if the reputation evidence is admissible, as we hold, a reversal is nevertheless required in this case because the Court failed to give a cautionary instruction to the jury limiting the use of this potentially prejudicial evidence. However, this issue is not properly before this Court because the defense counsel failed to bring to the Court’s attention its failure to give such an instruction. The record shows that the Court indicated at the time of his ruling to admit the reputation evidence that a cautionary instruction would be given as requested by the defense counsel; the instruction was not given, and no objection to this oversight was made. A party may not assign as error any portion of the charge or omission from the charge unless he objects thereto before the jury retires. Rule 30, F.R.Crim. Proc., Wilson v. Wiman, 386 F.2d 968 (6th Cir. 1967), Cowen v. United States, 241 F.2d 105 (6th Cir. 1957). The purpose of this rule is to require the counsel to act in time to give the judge an opportunity to correct his error. Rucker v. United States, 92 U.S.App.D.C. 336, 206 F.2d 464 (D.C.Cir.1953). The relatively slight nature of the reputation evidence in this case precludes a finding of plain error which would allow, us to consider the question in the absence of a timely objection. In Carbo and Tropiano, supra, the reputation evidence involved acts of violence and former criminal acts, and limiting instructions were given by the Court, and were upheld on appeal. In this case, however, the reputation evidence was only that the defendant was “sort of domineering, dictating to contractors,” and the prejudicial nature of this testimony is so slight that the failure to give a cautionary instruction does not constitute plain error.

The appellant contends that the trial court failed to instruct the jury that an essential element of the Hobbs Act is that the victim must be placed in either economic or physical fear. However, since no objection to this alleged error was made by defense counsel, we must first consider whether the oversight amounts to plain error prejudicial to the appellant. The omission of an allegedly necessary instruction does not constitute plain error if the instructions viewed in their entirety adequately protected the defendant. United States v. Harris, 458 F.2d 670, 678 (5th Cir. 1972). In the general charge to the jury concerning the statutory offense in issue, the Court said:

“The term ‘extortion’ means the obtaining of property from another induced by wrongful use of force, violence, or fear. The word fear should be given its ordinary meaning as including fear of economic loss. It is not limited to loss by injury, and hence the threat of a work stoppage would come within the definition of an economic loss of the victim.”

In addition, we note that the existence of fear in the mind of the victim was not placed in issue by the defense either during the trial or in closing argument. When the evidence and defense counsel’s argument do not raise an element of the crime as an issue in the case, and the trial court is not apprised that it must prepare a specific instruction to cover the issue, the failure of the court should not be treated as plain error. United States v. McKenzie, 409 F.2d 983 (2d Cir. 1969). There is nothing in the record of this case that would lead us to believe that the omission of a specific instruction on this point constituted reversible error.

The appellant also contends that the Court should have permitted him to reopen the case for the limited purpose of introducing additional evidence concerning the height of the crane relative to the overhead wires. Inasmuch as this decision is vested in the sound discretion of the trial court, and inasmuch as courts should be extremely reluctant to grant reopeningsyand inasmuch as evidence of the height of the boom was available to the defense and was introduced in evidence during the trial, we cannot find that the District Court abused its discretion in denying the appellant’s motion to reopen the case for this purpose. United States v. Wade, 364 F.2d 931 (6th Cir. 1966), Eason v. United States, 281 F.2d 818 (9th Cir. 1960).

We have considered the remaining contentions of the appellant, including the contention that a new trial should have been granted, and we find that they are without merit. The judgment of the District Court is affirmed.


source: Caselaw Access Project

author: INGRAHAM, Circuit Judge:

license: Public Domain

text:
    Pedro GONZALES et al., Plaintiffs-Appellants, v. Clifton W. CASSIDY, Jr., et al., Defendants-Appellees, John Richard Hayes, III, et al., Plaintiffs-Intervenors-Appellants.
    No. 71-3344.
    United States Court of Appeals, Fifth Circuit.
    Feb. 15, 1973.

      William L. Garrett, Edward W. Dunbar, Andrew Monson, Dallas, Tex., for plaintiffs-appellants.
    Crawford C. Martin, Atty. Gen., Jay Floyd, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
    Before DYER, Circuit Judge, SKELTON, Judge, and INGRAHAM, Circuit Judge.

       Hon. Byron G. Skelton, of the U. S. Court of Claims, sitting by designation.

      . The text of these sections as they existed at the time of the suit was as follows:
      Sec. 4. The operator of every motor vehicle which is in any manner involved in an accident within the State, in which any person is killed or injured or in which damage to the property of any one person, including himself, to an apparent extent of at least One Hundred Dollars ($100) is sustained, shall within ten (10) days after such accident report the matter in writing to the Department. Such report, the form of which shall be prescribed by the Department, shall contain information to enable the Department to determine whether the requirements for the deposit of security under Section 5 are inapplicable by reason of the existence of insurance or other exceptions specified in this Act. Any written report of accident in accordance with Section 44, Chapter 421, Acts of the Fiftieth Legislature, Regu- . lar Session, 1947, as last amended by Chapter 363, Acts of the Fifty-third Legislature, Regular Session, 1953, compiled as Article 6701d, Section 44, Vernon’s Texas Civil Statutes, if actually made to the Department, shall be sufficient provided it also contains the information required herein. The Department may rely upon the accuracy of the information unless and until it has reason to believe that the information is erroneous. If such operator be physically incapable of making such report, the owner of the motor vehicle involved in such accident shall, within ten (10) days after learning of the accident, make such report. The operator or the owner shall furnish such additional relevant information as the Department shall require.
      Security; determination of amount; suspension of license and registrations ; notice; exceptions

        Sec. 5. (a) If twenty (20) days after the receipt of a report of a motor vehicle accident within this State which has resulted in bodily injury or death, or damage to the property of any one person of at least One Hundred Dollars ($100), the Department does not have on file evidence satisfactory to it that the person. who would otherwise be required to file security under Subsection (b) of this Section has been released from liability, or has been finally adjudicated not to be liable, or has executed a duly acknowledged written agreement providing for the payment of an agreed amount in installments with respect to all claims for injuries or damages resulting from the accident; the Department shall determine the amount of security which shall be sufficient in its judgment, and in no event less than Two Hundred Dollars ($200) to satisfy any judgment or judgments for damages resulting from such accident as may be recovered against each operator or owner.
      (b) The Department shall, within sixty (60) days after the receipt of such report of a motor vehicle accident, suspend the license and all registrations of each operator and owner of a motor vehicle in any manner involved in such accident, and if such operator or owner is a nonresident the privilege of operating a motor vehicle within this State, and the privilege of the use within this State of any motor vehicle owned by him unless such operator, owner or operator and owner shall deposit security ' in the sum so determined by the Department and in no event less than Two Hundred Dollars ($200), and unless such operator and owner shall give proof of financial responsibility; provided notice of such suspension shall be sent by the Department to such operator and owner not less than ten (10) days prior to the effective date of such suspension and shall state the amount required as security and the necessity for proof of financial responsibility. Where erroneous information is given the Department with respect to the matters set forth in subdivisions 1, 2 and 3 of Subsection (c) of this Section, it shall take appropriate action as hereinbe-fore provided, within sixty (60) days after receipt by it of correct information with respect to said matters.
      Duration of suspension
      Sec. 7. The license and registration and nonresident’s operating privilege suspended as provided in Section 5 shall remain so suspended and shall not be renewed nor shall any such license or registration be issued to such person until:
      1. Such person shall deposit and file or there shall be deposited and filed on his behalf the security and proof required under Section 5 and under this Section; or
      2. Two (2) years shall have elapsed following the date of such accident and evidence satisfactory to the Department has been filed with it that during such period no action for damages arising out of the accident has been instituted, provided such person files proof of financial responsibility; or
      3. Evidence satisfactory to the Department has been filed with it of a release from liability, or a final adjudication of nonliability, or a duly acknowledged written agreement, in accordance with subdivision 4 of Section 6; provided, however, in the event there shall be any default in the payment of any installment under any duly acknowledged written agreement, then, upon notice of such default, the Department shall forthwith suspend the license and registration or nonresident’s operating privilege of such person defaulting which shall not be restored unless and until
      (a) Such person deposits and thereafter maintains security as required under Section 5 in such amount as the Department may then determine and files proof of financial responsibility; or
      (b) Two (2) years shall have elapsed following the date when such security was required and during such period no action upon such agreement has been instituted in a court in this State, provided such person gives proof of financial responsibility.

   INGRAHAM, Circuit Judge:

The question in this appeal is whether plaintiff-appellant Gonzales and the class he seeks to represent are bound by the res judicata effect of a prior class suit involving the same class (represented by a different named plaintiff), the same defendants and the same issues. We agree with Gonzales that the class was inadequately represented when the class representative in the prior suit failed to appeal from the trial court’s judgment. We reverse and remand.

The prior suit began in May 1969. Antonio Gaytan filed suit as a class action against Clifton Cassidy, Chairman of the Texas Department of Public Safety, in the United States District Court for the Western District of Texas, seeking a declaratory judgment that the Texas Safety Responsibility Act was unconstitutional and an injunction against its enforcement. Gaytan, an uninsured motorist, had been involved in an automobile accident in Texas, and pursuant to §§ 4, 5(a), 5(b) and 7 of the Act his driver’s license and the registration receipt on his vehicle were suspended without a hearing on liability or fault because he did not post security - — as required by the Act — for the damages claimed by the adverse party. A three-judge court was convened, 28 U.S.C., §§ 2281 and 2284, and denied Gaytan and his class any relief by its holding that the Act was constitutional. On direct appeal to the Supreme Court, 28 U. S.C. § 1253, the district court’s judgment was vacated, and the case was remanded for reconsideration in light of Bell v. Burson, 402 U.S. 535, 96 S.Ct. 1586, 29 L.Ed.2d 90 (1971), which was decided after the three-judge court’s decision.

In Bell the Supreme Court held the Georgia Motor Vehicle Safety Responsibility Act unconstitutional as violative of procedural due process. The Georgia Act, like the Texas statute under attack in Gaytan, provided that the motor vehicle registration and driver’s license of an uninsured motorist involved in an accident would be suspended unless the motorist posted security for the amount of damages claimed by an aggrieved party, but did not provide for a hearing on liability or fault prior to the suspension.

On remand the three-judge court accordingly held the Texas Act unconstitutional. But, regarding the scope of relief to which Gaytan and his class were entitled, the court held:

“This order shall apply retroactively to the Plaintiff ANTONIO R. GAY-TAN, and prospectively from June 30, 1971, to all members of the class represented by said Plaintiff.”

Having obtained full relief for himself, Gaytan did not appeal the court’s denial of retroactive relief to the other members of his class.

The present action began in the Northern District of Texas on June 24, 1971, after the Supreme Court vacated the first Gaytan decision, but before the case was heard on remand. Pedro Gonzales filed a class action against Cassidy, the defendant in Gaytan, seeking the same relief as had been sought by Gay-tan in his suit. On July 1, 1971, the Gonzales court entered a temporary restraining order in favor of Gonzales and the other named plaintiffs in his action, prohibiting the defendant from suspending their licenses and vehicle registration receipts. This was before the amended order in Gaytan was rendered but only one day after the first order denying retroactive relief to all of the class except Gaytan was entered. On August 19, 1971, the Gaytan court entered its amended and final order. Then on August 25, 1971, the Gonzales court ordered a show cause hearing as to why its temporary restraining order of July 1 should not be made permanent. This hearing was held on September 28 and the court reasoned that, because Gayton v. Cassidy was a class action and because Gonzales and the class he sought to represent were members of the Gay-tan class, the principles of res judicata foreclosed their claims. Gonzales appeals claiming that Gaytan’s failure to appeal the final three-judge order in Gaytan v. Cassidy rendered his representation of the class inadequate, therefore precluding res judicata from attaching to that judgment.

To answer the question whether the class representative adequately represented the class so that the judgment in the class suit will bind the absent members of the class requires a two-pronged inquiry: (1) Did the trial court in the first suit correctly determine, initially, that the representative would adequately represent the class ? and (2) Does it appear, after the termination of the suit, that the class representative adequately protected the interest of the class? The first question involves us in a collateral review of the Gaytan trial court’s determination to permit the suit to proceed as a class action with Gaytan as the representative, while the second involves a review of the class representative’s conduct of the entire suit — an inquiry which is not required to be made by the trial court but which is appropriate in a collateral attack on the judgment such as we have here. Our discussion will treat each question separately.

The starting point in a trial court’s determination to allow a suit to proceed as a class action is Rule 23(a) of the Federal Rules of Civil Procedure, which provides the prerequisites to a class action as follows:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

The primary contention in this appeal is that Gaytan did not meet the requirements of 23(a) (4). Remembering that at this point we are only concerned with the court’s initial determination that Gaytan would be an adequate representative, we look to the criteria on which the decision should be based. There are two: (1) the representative must have common interests with the unnamed members of the class; and (2) it must appear that the representative will vigorously prosecute the interests of the class through qualified counsel. We have little difficulty in concluding that Antonio Gaytan met both of these requirements when he filed his suit in May of 1969. He was an uninsured motorist as were the members of his class; he had an automobile accident in Texas and had failed to post the necessary security under the Act as had the members of his class; his license and registration receipt were suspended without a hearing on liability or fault just as occurred to the members of his class. Likewise, he had the same basic interests in not having his license suspended or in having the suspension revoked as did the other members of his class. It is clear then that Gaytan had common interests which coincided with those of the class he sought to represent. Furthermore, there are no allegations that Gaytan’s attorney was not fully qualified to handle the case, or that, initially at least, he would not vigorously prosecute the action. The fact that Gaytan’s counsel appealed to the Supreme Court after the three-judge court’s adverse decision and subsequently won a reversal of that decision points significantly to counsel’s qualification to handle the litigation. Therefore we cannot refuse to give res judicata effect to the judgment in Gaytan v. Cassidy on the basis that the trial court in that case erroneously determined that Gaytan would be an adequate representative of the class.

The second question is whether Gay-tan’s conduct of the entire suit was such that due process would not be violated by giving res judicata effect to the judgment in that suit. This is the crucial issue when the judgment in a class action is under collateral attack. Our first step, however, is to examine subdivisions (b) and (c) of Rule 23 in order to establish the proper context in which to make this inquiry.

Subdivision (b) of Rule 23 provides :

An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be disposi-tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

Gaytan v. Cassidy obviously fits within (b)(2) — thus, to be specific, we are dealing with the res judicata effect of the judgment in a (b)(2) type of class action. Subdivision (c) (3) provides: “The judgment in an action maintained as a class action under subdivision (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class . .” Although the Gaytan court’s opinion, neither originally nor on remand, describes the class it considered Gaytan to be representing, we agree with the lower court here that Gonzales and the class he seeks to represent were members of the Gay-tan class and would at first blush appear bound by the Gaytan decision. But our inquiry into the binding effect of Gay-tan does not end with Rule 23 for, “although thus declaring that the judgment in a class action includes the class, as defined, subdivision (c)(3) does not disturb the recognized principle that the court conducting the action cannot predetermine the res judicata effect of the judgment; this can be tested only in subsequent action. See Restatement, Judgments § 86, comment (h), § 116 (1942).” Advisory Committee’s Notes to Rule 23 F.R.C.P., 28 U.S.C.A. at 301; Moore 23.60 at 1203. As a general rule though, a judgment in a class action will bind the absent members of the class. The exception to this general rule is grounded in due process. Due process of law would be violated for the judgment in a class suit to be res judicata to the absent members of a class unless the court applying res judicata can conclude that the class was adequately represented in the first suit. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1942). See Sam Fox Publishing Co. v. United States, 366 U.S. 683, 691, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961); Dierks v. Thompson, 414 F.2d 453 (1st Cir., 1969); Eisen v. Carlisle and Jacquelin, 391 F.2d 555 (2nd Cir., 1968); Mersay v. First Rep. Corp. of America, 43 F.R.D. 465 (S.D.N.Y., 1968).

The 1966 amendments to Rule 23 eliminated the distinctions between true, hybrid and spurious class actions and the differing res judicata effect of each type of action, thus broadening the effect of res judicata under the amended rule. It follows then that a court — whether it be the trial court making its initial 23(a)(4) determination, or a subsequent court considering a collateral attack on the judgment in a class action — must stringently apply the requirement of adequate representation. Judge Frankel has noted:

“There are, of course, some obvious limitations in any case upon the extent to which absent parties will be concluded. For one thing, as the Advisory Committee observed, such parties have a clear right in some later litigation to attack the judgment which purports to bind them. In such a later case, at least the basic considerations going to the fairness of holding them bound will be open for reexamination. Factors which were not brought to the attention of the first court — including, most centrally, the adequacy of representation in the first suit; [citing Hansberry v. Lee, supra] — may lead to a changed perspective.”

M. Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39 (1967). And, as Justice Harlan observed: “The judgment in a class action will bind only those members .of the class whose interests have been adequately represented by existing parties to the litigation.” Sam Fox Publishing Co. v. United States, supra, 366 U.S. at 691, 81 S.Ct. at 1314. Our inquiry then into the adequacy of class representation for purposes of res judicata is made with the understanding that generally the class will be bound unless the party attacking the judgment can show that the class was inadequately represented.

What standards should determine whether Gaytan adequately represented the class in Gaytan v. Cassidy? In Mersay v. First Republic Corp. of America, supra, the trial court was making the 23(a)(4) determination of whether the named plaintiff would adequately represent the class when it said, “the primary criterion is the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the members of the class, so as to insure them due process.” Id. 43 F.R.D. at 470. This precept is equally applicable to the determination which must be made by a court when a class action judgment is under collateral attack. We hold that the primary criterion for determining whether the class representative has adequately represented his class for purposes of res judicata is whether the representative, through qualified counsel, vigorously and tenaciously protected the interests of the class. A court must view the representative’s conduct of the entire litigation with this criterion as its guidepost.

We have previously recognized that Gaytan’s 'representation was more than adequate up to the time the three-judge court entered its final order on remand. The narrow question, therefore, is whether Gaytan’s failure to appeal this order, which denied retroactive relief to all members of the class except Gaytan, constitutes inadequate representation of the class so that they are not bound by the judgment. We are compelled to hold that Gaytan’s failure to prosecute an appeal on behalf of the other members of his class rendered his representation of them inadequate. For this reason, the judgment in Gaytan v. Cassidy cannot be res judicata to the class.

Gaytan, through his attorney, vigorously represented the class until he obtained individual Relief. The problem is that he was representing approximately 150,000 persons, who, although having had their licenses and registration receipts suspended without due process, were denied any relief by the three-judge court’s prospective only application of its decision. So long as an appeal from this decision could not be characterized as patently meritless or frivolous, Gaytan should have prosecuted an appeal. Otherwise, it cannot be said that he vigorously and tenaciously protected the interests of the class he was purporting to represent, or that all members of the class had been afforded due process of law by having a full day in court. It is axiomatic that an appeal is a significant element in the judicial process. Gaytan’s failure to prosecute an appeal deprived the members of his class, whose rights were not vindicated by the three-judge court’s decision, of full participation in this process.

Appellees do not meet the argument that Gaytan’s failure to appeal rendered him an inadequate representative of the class. Instead, they advance an estoppel-type argument to support the proposition that Gonzales cannot raise the inadequate representation issue. Their position is that since counsel for Gonzales was aware that on remand the Gaytan court denied retroactive relief by his June 30, 1971 order, and finally denied such relief in its amended order of August 19, Gonzales is estopped to attack the judgment collaterally because he should have intervened in Gaytan for the purposes of appeal. We reject this contention.

First, as the' 1966 amendments to Rule 23 clearly illustrate, the purpose of a class action is to allow as few as one member of a class to prosecute an action for the benefit of the class if the requirements of 23(a) and (b) are met. This is one reason why the requirement of 23(a)(4) is stringently applied. The purpose of Rule 23 would be subverted by requiring a class member who learns of a pending suit involving a class of which he is a part to monitor that litigation to make certain that his interests are being protected; this is not his responsibility — it is the responsibility of the class representative to protect the interests of all class members.

Secondly, it would simply be inequitable to foreclose Gonzales from attacking the Gaytan judgment on the facts of our case. The Gaytan court rendered its initial order on remand denying retroactive application of its decision that the Texas Act was unconstitutional on June 30, 1971. The Gonzales court, nevertheless, entered a temporary restraining order on July 1, 1971, prohibiting the defendants in Gonzales (which are the same as those in Gaytan) from suspending plaintiffs-appellants’ licenses or registration receipts. Thereafter, a motion was filed in Gaytan for clarification of the court’s order. This •motion was granted and on August 19, 1971, the Gaytan court issued an amended order giving relief only to the named plaintiff Gaytan and to those persons whose effective date of suspension occurred after June 30, 1971. Thus, there was not a final appealable judgment in Gaytan until August 19. Meanwhile, the Gonzales court’s temporary restraining order remained in effect throughout this period of time. On August 28, 1971, the Gonzales court entered an order to show cause why its temporary restraining order should not be made permanent and set a hearing for September 28, 1971. By September 28th it was already too late for Gonzales to intervene for the purpose of prosecuting an appeal in Gaytan. Nevertheless, the Gonzales court held that Gaytan was res judicata to plaintiffs-appellants’ claims. The only remedy then available to Gonzales was to appeal the court’s decision to apply res judicata.

While some attorneys might have possessed the omniscience to have begun seeking intervention in Gaytan after that court’s June 30th decision, we cannot fault counsel here for not doing so when one day later they obtained the relief which they were seeking in another court. Also, inasmuch as the Gaytan decision on remand was subsequently amended during the time the temporary restraining order was in effect, we cannot say that counsel should have sought intervention during this time. Nor is counsel to be faulted for not seeking-intervention after August 19, 1971. The Gonzales court shortly thereafter ordered a hearing as to why the temporary restraining order should not be made permanent. To require counsel to have sought intervention in Gaytan while awaiting the hearing in Gonzales would require too much. In these circumstances the application of res judicata cannot be sustained.

On remand there will be at least two issues. The first will be whether this action may be maintained as a class action. The district court denied Gonzales’s motion to allow this suit to proceed as a class action. In light of our decision and for reasons of judicial economy, we think the district court should reexamine this decision, and if it concludes that Gonzales meets the prerequisites of 23(a) and (b), it would seem appropriate to allow a class action. The second issue will be the retroactivity question. We express no views on the resolution of this issue.

Reversed and remanded.

      . Gaytan v. Cassidy, 317 F.Supp. 46 (W.D.Tex., 1970) (Three-judge court). The decision was subsequently vacated by the Supreme Court, 403 U.S. 902, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971), and reversed on remand, Gaytan v. Cassidy, No. SA69CA153 (W.D.Tex., June 30, 1971, amended August 19, 1971).

      . Tex.Bev.Civ.Stat.Ann., Art. 6701h (1969).

      . 317 F.Supp., at 49. The court relied on Gillaspie v. Department of Public Safety, Tex., 259 S.W.2d 177 (1953), cert. den., 347 U.S. 933, 74 S.Ct. 625, 98 L.Ed. 1084, in which the Texas Supreme Court upheld the Act under a similar constitutional attack.

      . Writing for a unanimous court, Mr. Justice Brennan declared:
      “Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. [Citations omitted]. This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege.’ ” [Citations omitted.]
      402 U.S. at 539, 91 S,.Ct. at 1589. He continued:
      “[D]ue process requires that when a State seeks to terminate an interest such as that here involved, it must afford ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” [Citations omitted].
      Id. at 542, 91 S.Ct. at 1591.

      . Gaytan v. Cassidy, No. SA69CA153 (W.D.Tex., June 30, 1971, amended August 19, 1971). The amended order clarified the original order by explaining that it granted relief only to those persons whose effective date of suspension occurred after June 30, 1971, and to Gaytan whose suspensions occurred prior to June 30.

      . On appeal appellants assert that because “some of the motorists in this cause . were only the registered owners of automobiles which were driven by someone else at the time of the respective accidents,” their claims are not typical to those of Gaytan in that he was the driver of his vehicle. This contention approaches the frivolous for, although Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” it is obvious that this is a distinction without a difference and appellants offer no reason why this distinction would prevent Gaytan from representing their interests. Gaytan was typical of the class within the meaning of Rule 23(a) (3) because he did not have interests which conflicted with those of the class, and because his claims for relief were based on the same legal or remedial theory as the appellants in the case at bar. See Katz v. Carte Blanche Corp., 52 F.R.D. 510 (W.D.Pa., 1971); Mersay v. First Rep. Corp. of America, 43 F.R.D. 465 (S.D.N.Y., 1968); 7 C. Wright and A. Miller, Federal Practice and Procedure, § 1764 at 614 (1972) [hereinafter cited as Wright and Miller].

      . Since Gonzales and the other named plaintiffs fell within the group to whom only prospective relief had been granted by the Gaytan court, in that their licenses had been suspended prior to June 30, 1971, they were denied relief by the application of res judicata. Plaintiff Louanner H. Edwards was granted relief, for the reason that his license had not been suspended prior to June 30. At this time the court also denied the request that the Gonzales suit be maintained as a class action.

      . We rejected appellants’ assertion that Gaytan’s claims were not typical of the class within the meaning of 23(a) (3) in note 7, supra.

      . See Epstein v. Weiss, 50 F.R.D. 387 (E.D.La., 1970); Herbst v. Able, 47 F.R.D. 11 (S.D.N.Y., 1969); Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y., 1968),; Mersay v. First Rep. Corp. of America, 43 F.R.D, 465 (S.D.N.Y.1968). See, generally, 3B J. Moore, Federal Practice, ¶ 2302-.07 (2d Ed. 1969). [hereinafter cited as Moore]; Wright and Miller, § 1765. In Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 562 (2nd Cir., 1968), the court also noted:
      “[A]n essential concomitant of adequate representation is that the party’s attorney be qualified, experienced and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that plaintiff has interests antagonistic to those of the remainder of the class.”

      . This question necessarily requires a hindsight approach to the issue of adequate representation, and in no way reflects on the Q-aytan court’s conclusion that Gaytan would adequately represent the class.

      . One distinction between members of a class in a (b)(1), (b)(2), or (b)(3), action is that absent (b),(l) and (b) (2) members do not have the privilege of opting out of the suit that is accorded to class members in a (b) (3) suit. See Research Corp. v. Asgrow Seed Co., 425 F.2d 1059 (9th Cir., 1970); Smith v. Alleghany Corp., 394 F.2d 381 (2nd Cir., 1968); Moore, ¶ 23.60 at 1202. Also, the mandatory notice requirements of 23(e) (2). do not apply to (b) (1) and (b),(2) actions even though the discretionary notice provisions of (d) (2) are applicable. As a result of these distinctions class members in (b) (1) and (b) (2) actions must necessarily rely on the representative to protect their interests.

      . See, e. g. Calagaz v. Calhoun, 309 F.2d 248 (5th Cir., 1962), in which the court noted that the theory of a class action is that all members of the class are before the court in person of their representative and. can, therefore, be justly bound by the court’s decree. The court concluded, however, with the reminder that for the class to be bound it must be adequately represented.

      . See generally, Moore, ¶¶ 23.01, 23.07 [1], 23.60, and App. 23.08.11.

      . See, e. g., Eisen v. Carlisle and Jacquelin, supra, 391 F.2d at 562, in which Judge Medina stated: “[A]s a result of the sweeping changes in Rule 23, a court must now carefully scrutinize the adequacy of representation in all class actions.” Hohmann v. Packard Inst., 43 F.R.D. 192, 196 (N.D.Ill, 1967), rev’d on other grounds 399 F.2d 711 (7 Cir., 1968) (adequacy of representation should be considered more stringently under the amended rule); Fischer v. Kletz, 41 F.R.D. 377, 382 (S.D.N.Y., 1966) (question of adequate representation has become considerably more significant under amended Rule 23).

      . This conclusion does not mean, either explicitly or implicitly, that the Graytam, court erred when it denied retroactive application of its decision, and our conclusion should not be read as questioning that decision.

      . See note 15, supra.

      . The problems encountered by counsel here are illustrative of the problems encountered by lawyers, trial courts and appellate courts when two or more (b) (1) or (b),(2) class actions are proceeding simultaneously in the federal courts. Perhaps a partial solution will be found in the provisions dealing with multidis-triet litigation, 28 U.S.G. § 1407.
      In Texas, which has four federal districts with divisions within each district, it is particularly important for district courts to be aware of what other courts are doing and to coordinate their efforts where possible. In this regard the courts might consider adopting a procedure whereby the clerk’s office in the respective districts or divisions would circulate a list briefly summarizing the (b) (1). and (b) (2) class actions then pending.

      . The Supreme Court’s recent decision in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), may furnish some guidance to the district' court.


author: SETH, Circuit Judge.

text:
    Agnes GELLERT and Lisa Gellert, d/b/a Danish Import Company, Appellees, v. UNITED AIRLINES, a Delaware corporation, Appellant.
    No. 72-1451.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 15, 1972.
    Decided Feb. 16, 1973.

      Ray R. Christensen, of Christensen, Gardiner, Jensen & Evans, Salt Lake City, Utah, for appellant.
    Arthur H. Nielsen, Salt Lake City, Utah (Michael Gottfredson, and Nielsen, Conder, Hansen & Henriod, Salt Lake City, Utah, with him on the brief), for appellees.
    Before HILL and SETH, Circuit Judges, and CHRISTENSEN, District Judge.
   SETH, Circuit Judge.

The plaintiffs brought this action against the defendant air carrier for damages alleged to have resulted from a delay in a shipment of ski clothing samples sent from New York to San Francisco.

The trial court directed a verdict for plaintiffs on the issue of liability, holding that the carrier was liable for all damages to plaintiffs’ business resulting from the delay, and submitted to the jury only the question of the amount of such damages. The jury returned a verdict against appellant in the amount of $43,000.00, and the carrier has taken this appeal.

Plaintiffs-appellees, Agnes and Lisa Gellert, mother and daughter, were importers and sellers of ski wear. They began this business in 1960, and conducted it from their home in Salt Lake City, Utah. In the spring of 1968, ap-pellees made a trip to Europe, and made arrangements with manufacturers of ski apparel to supply them on an exclusive basis. They also obtained samples of merchandise which they displayed at shows across the United States, as had been their custom. These shows were for the purpose of allowing prospective buyers to examine the samples of merchandise and place orders for them. Appellees would then order the needed goods in bulk from their European suppliers and on arrival ship the merchandise to their customers.

In the spring of 1968, appellees exhibited at the Los Angeles and Denver shows. After the Denver show, there was a show in New York, a show in Seattle, and the final show in San Francisco. Appellee, Lisa Gellert, attended and conducted the New York show, and at its conclusion the samples were packaged and addressed to appellees at their San Francisco hotel. Lisa Gellert then called appellant, United Airlines, and arranged for the shipment of the boxes of samples to San Francisco. A representative of appellant picked up the packages on Thursday, April 25, 1968, at appellee’s New York hotel. The declared value of the shipment was $1,500.00.

On Friday, Lisa Gellert arrived in San Francisco and called appellant to inquire if the shipment had arrived. It had not, and did not thereafter. The show opened Sunday, and appellees were still without the samples sent from New York. The show closed five days later. Appellees, still without the samples, received orders for approximately $4,000.-00 worth of goods, whereas the previous year, their orders at the San Fráncisco show had totaled approximately $40,000.-00. All the samples shipped from New York arrived in Salt Lake City some three days after the closing of the San Francisco show.

In addition to the loss of sales in San Francisco, appellees testified that thirteen of appellees’ European suppliers terminated business with them because of the lack of orders. Appellees asserted that they lost other sales that they had made because the orders they did get were too small for suppliers to deliver. Because of this, appellees had to cancel orders that had been placed with them and lost customers.

After appellees put on their evidence, and appellant put the applicable tariff rules into evidence, the trial court directed a verdict on the issue of liability in favor of the appellees.

Appellant’s first argument is that under the applicable tariff rules, the maximum amount of liability assumed by it as a carrier was $1,500.00, the declared value of the boxes to be shipped to San Francisco. The carrier urges that we hold that certain provisions of Rule 32 of the Official Air Freight Tariff No. 1-B applicable to this transaction limited its liability to the declared value of the shipment. This Rule 32(A) provides in pertinent part:

y“(l) In consideration of carrier’s rate for the transportation of any shipment, which rate in part is dependent upon the value of the shipment as determined pursuant to Rule 52, the shipper and all of the parties having an interest in the shipment agree that the value of the shipment shall be determined in accordance with the provisions of Rule 52 and that the total liability of the carrier shall in no event exceed the value of the shipment as so determined.
* * * * * *
“(3) Except as provided in paragraph A(4) and A(5) of this rule, the total liability of the carrier shall in no event exceed—
(a) The value of the shipment as determined pursuant to Rule 52, or
(b) The actual value of the shipment, or
(c) The amount of any damages actually sustained, whichever is the least.”

On the other hand, appellees direct us to Rule 30(3) of Official Air Freight Tariff No. 1-B which provides:

“(3) (Not applicable to U.A.) The carrier shall not be liable in any event for any consequential or special damages arising from transportation subject to tariffs governed by these rules, whether or not the carrier had knowledge that such damages might be incurred.”

“U.A.” in the above quotation refers to United Airlines, and indicates that this defendant carrier did not elect to come within the Rule 30(3).

The carrier takes the position that it is liable for consequential damages because it elected not to come within the above Rule 30(3) whereunder it could have excluded liability for such damages. However, as indicated above, it urges that its total liability for all damages is the amount that the shipper declared to be the value. This conclusion, it asserts, should also follow because its compensation for the shipment, both to meet its cost of carriage and the risk of loss, was determined in part by the amount of the declared value. The charge for the shipment in issue was determined in part by the value declared by the plaintiffs, thus if the value declared had been higher, the cost of the risk portion would have been greater. See Hart v. Pennsylvania R.R., 112 U.S. 331, 5 S.Ct. 151, 28 L.Ed. 717, and Adams Express Co. v. Cronin-ger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314.

The carrier thus argues that the “value” of the shipment, as to which the declaration limits its liability under Rule 32, includes consequential damage value of the nature here claimed. The shippers argue that the carrier was liable for all consequential damages which resulted regardless of declared value, since it did not elect to come within Rule 30(3) of Tariff No. 1-B.

Rule 32, by its terms, is not restricted in applicability to the loss or damage of the shipment, as the shippers here contend, but expressly states that the “ . . . total liability of the carrier shall in no event exceed the value of the shipment. . . . ” It is our view that the decision in Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 57 S.Ct. 73, 81 L.Ed. 20 (1936), is applicable to, and controls, the case at bar. In that case, the Supreme Court held that no damages above the declared value could be recovered since a tariff filed pursuant to a federal act known as the Carmack Amendment, 49 U.S.C. § 20(11), limited liability to a certain amount unless the shipment was declared to be of greater value, in which event liability was limited to the greater value. The tariff there provided: “Unless a greater value is declared and stated herein the shipper agrees that the value of the shipment is as last above set out and that the liability of the company shall in no event exceed such value.” See also Marquette Cement Mfg. Co. v. Louisville & Nashville R. R., 406 F.2d 731 (6th Cir.), and Randolf v. American Airlines, Inc., 103 Ohio App. 172, 144 N.E.2d 878.

The authorities have long held that a carrier cannot by contract exempt itself from liability for its own negligence. Adams Express Co. v. Cronin-ger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314. However, it can reasonably limit the extent of liability by giving the shipper a reasonable choice “ . and the right to agree upon a rate proportionate with the value of the property transported.” Thus there would seem to be some substantial doubt as to whether the carrier here could exempt itself from all liability for consequential damages. It apparently held such doubt also. This doubt in turn raises a serious question as to the validity or effectiveness of the Rule 30(3) in any event. Thus we must apply what we consider to be the effective rule relating to the liability. This is Rule 32(A) quoted above. In view of the above doubts relating to Rule 30(3), the terms used in Rule 32(A): “actual value of the shipment,” “damages actually sustained,” and “value of the shipment as determined pursuant to Rule 52,” all must mean and include consequential damages of the nature here sought to be recovered. This construction makes the “value” terms in Rule 32(A) mean not only a limit on the “total liability,” as expressly stated in the rule, but also to include all liabilities for loss, damage, or delay — direct or consequential. Thus the “total” of the dollars, and the “total” of types of liability were meant to be included.

Thus with the applicability of Rule 32(A) to these circumstances, with the express agreement thereby arising as to the limit on all damages, with the opportunity so presented to the shipper to select the declared limit, with the compensation for the shipment thereby commensurate with the risk assumed, the transaction comes within the established law relating to common carriers, as above described.

The judgment is set aside and the case is remanded to the trial court with directions to dismiss the complaint and the cause.


author: PELL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. The BOARD OF SCHOOL COMMISSIONERS OF the CITY OF INDIANAPOLIS, INDIANA et al., Defendants-Appellants.
    No. 72-1031.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 13, 1972.
    Decided Feb. 1, 1973.
    Certiorari Denied June 25„ 1973.
    See 93 S.Ct. 3066.

      C. Wendell Martin, John 0. Moss, Indianapolis, Ind., for defendants-appellants.
    David L. Norman, Asst. Atty. Gen., Brian K. Landsberg, Atty., Dept, of Justice, Washington, D. C., Stanley B. Miller, U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before ENOCH, Senior Circuit Judge, and FAIRCHILD and PELL, Circuit Judges.
   PELL, Circuit Judge.

This is an appeal from an order by the district court finding that the Board of School Commissioners for the School City of Indianapolis, Indiana (“School City”) had been following a course of de jure segregation in violation of the holding of the Supreme Court in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I). On the basis of this finding, the district court determined as a conclusion of law that it had authority to order the School City to take “affirmative action” to convert to a unitary system. The district court, as trier of fact, made detailed findings of fact to support the ultimate finding of de jure segregation and we shall not attempt to recapitulate those findings, except where specifically required. We do note, however, that the court specifically found that (1) on May 17, 1954 (the date of the decision in Brown I), the School Board was operating a dual school system, that is, it was found to have had a “deliberate policy of segregating minority (Negro) students from majority (white) students,” and (2) that the Board had not changed its policies so as to eliminate such de jure segregation on or before May 31, 1968 (the date on which the Government filed its complaint), 332 F.Supp. at 658.

Before turning to appellants’ contentions, we first enunciate a few general principles on which the opinion of this court is based. In order to support a finding of de jure segregation, it is not necessary that there be a complete separation of the races. Certainly school systems totally segregated by force of a state law have been found to violate Brown I, but other districts in which segregation has been only partially effective (that is, in which there are some integrated schools) have been held to be equally in violation. See Davis v. School District of City of Pontiac, Inc., 309 F.Supp. 734, 740 (E.D.Mich.1970), aff’d, 443 F.2d 573 (6th Cir. 1971); United States v. Board of Education, Independent School District No. 1, Tulsa County, Oklahoma, 429 F.2d 1253 (10th Cir. 1970). Further, the actions of the Board of School Commissioners and its duly-appointed representatives and agents may be sufficient to constitute de jure segregation without being based on a state law, or even if they are in derogation of state law forbidding segregation. See Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990 (10th Cir. 1971), cert. granted, 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728 (1972); Bradley v. Milliken, (6th Cir., filed Dec. 8, 1972) (slip op. at pp. 49-50).

Another principle which comes into play in examining the district court’s opinion relates to the affirmative duty placed on a school board “to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board of New Kent County, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). This affirmative duty attaches to any school system guilty of de jure segregation at the date it became illegal under Brown I, May 17, 1954. Thus, we reject the distinction, proposed in the district court by the amicus curiae, between violation (initial, e. g., Brown 1) cases and remedial (enforcement, e. g., Brown II) cases, for a court in a remedial case when it is considering what remedy to order looks to the same factors as it did when it determined that there was a violation of the mandate of Brown I. A school board, after years of de jure segregation, cannot blithely say that it has become “color blind” the day before a suit is filed and thereby avoid liability. As the Supreme Court recognized in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), not all “invidious racial distinctions” are readily eliminated. It is in this sense clear that factors viewed as being reflective of de jure segregation in remedial cases would be similarly significant in the initial determination of whether or not there has been a violation of constitutional rights. It is in this way that the remedial cases are relevant to the present case.

On this appeal, defendants basically present two arguments: first, that the district court erred as a matter of law in basing its finding of de jure segregation on the evidence of mere racial imbalance in the schools, and second, that the district court’s finding that segregation resulted from the School Board’s actions, and therefore was de jure, was clearly erroneous. Although the first point might' appear to be subsumed in the second, there is a distinction between the two as the second assumes, ar-guendo, that the district court did not make the mistake claimed in the first point.

Appellants first assert that there is no constitutional duty to remedy the effects of racial imbalance or to maintain any particular racial balance in the public schools. The Government does not quarrel with this assertion, and, indeed, insofar as it relates to purely de facto segregation, unaided by any state action, it is the law of this circuit, Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), aff’g 213 F.Supp. 819 (N.D.Ind.1963). The Board contends that since no student since Brown I has ever been compellecj to go to a school because of his race nor denied admission to a school because of race, the racial imbalance presented in the record cannot support a finding of de jure segregation. In sum, appellants seek to portray this case as one of de facto segregation only, and argue that there is no duty to alleviate such racial imbalance which the Board did not cause. Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966); Bell v. School City of Gary, supra.

The difficulty with this line of reasoning is that it does not comport with the findings of fact of the district court. As Judge Kiley has said for this court,

“The weakness in this argument is that the district court did not find that defendants inherited an innocent de facto segregation situation, but found that they inherited from their predecessors a discriminatorily segregated school system which defendants subsequently fortified by affirmative and purposeful policies and practices which effectually rendered de jure the formerly extant de facto segregation. . . . This is not a case of mere ‘inaction’ under the court’s finding of the unlawful actions of the Board.” United States v. School District 151 of Cook County, Illinois, 404 F.2d 1125, 1131 (7th Cir. 1968).

The present case — in which, as will be discussed below, the district court found gerrymandering of districts, segregation of faculty, and other indicia of a dual system — stands in marked contrast to the Deal and Bell cases, above, where the district courts made specific findings of no such discriminatory practices by the boards. Similarly, the present case is unlike Banks v. Muncie Community Schools, 433 F.2d 292 (7th Cir. 1970), where the court remarked that the record failed to disclose evidence of either racial motivation in board policies or a history of racial segregation from which such motivation might be inferred. Here, the district court commented extensively on both aspects in its opinion.

But appellants point to the language in the Supreme Court’s opinion in Swann, supra, 402 U.S. at 24-25, 91 S.Ct. 1267, which states that a particular racial balance is not necessary in each school and that one-race schools may be acceptable. They extrapolate from this that, since the only evidence before the trial judge was that of racial imbalance, the holding must be clearly erroneous, Rule 52(a), Fed.R.Civ.P. Our review of the record and the district court’s opinion convinces us that this contention cannot be sustained. What the district court’s opinion relates is a pattern of decision-making which it determined reflected a successful plan for de jure segregation. Although it might not be possible to infer the requisite discriminatory intent from any one instance or example in the record, it is clear that the district court found a purposeful pattern of racial discrimination based on the aggregate of many decisions of the Board and its agents. See Davis v. School District of the City of Pontiac, Inc., 443 F.2d 573, 576 (6th Cir. 1971).

The appellants deny any conscious motivation on the part of their predecessors or themselves to foster, or even continue, segregation policies in the school system; however, in examining that which was in existence at the time of Brown I and that which transpired thereafter, the courts are not precluded from drawing the normal inference of intent from consciously consummated acts. Intent, in this sense, may or may not be consistent with expressed motivation.

There is no doubt that the statistics as to the extreme racial imbalance in various schools, especially those schools previously segregated by state law until 1949, was one of the factors which the district judge considered. But even though no particular racial balance is per se necessary, Swann does not say that such imbalance may not be considered as one factor from which the district court may infer a segregatory intent.

Inasmuch as our review of the district court’s order, as discussed hereinafter, reflects that the racial imbalance was only one factor considered by the district court, we reject appellants' first contention that the finding of de jure segregation was based merely on evidence of racial imbalance.

The Board also rests its case on the alleged mistake of the district court in inferring de jure segregation from various acts which encouraged racial imbalance in the schools. It argues that these underlying findings of fact are clearly erroneous insofar as they place the blame for the present system’s racial imbalance on actions taken by the Board and its agents. To show de jure segregation, rather than de facto segregation, the Government must show improper intent and causation. Throughout the trial and in its brief in this court, the Board emphasized not only its lack of intent, but also that the schools which are predominantly or completely black would have become so no matter what the Board did as long as it maintained some policy approximating that of a neighborhood school system. It is to these contentions that we now turn.

Initially, we must consider appellants’ contention that they have adhered nondiscriminatorily to a policy of neighborhood schools. We are, of course, limited by the fact that we can only set aside the district court’s findings if they are clearly erroneous, Rule 52(a), Fed.R.Civ.P., and cannot substitute our “findings” for those of the district court, Northcross v. Board of Education of Memphis, Tennessee, City Schools, 397 U.S. 232, 235, 90 S.Ct. 891, 25 L.Ed.2d 246 (1970), as requested by appellants in oral argument, even though much of the record is documentary. We also note that appellants are most strenuous in their denial of any present discriminatory activity, leaving the actions of the 1950’s as little more than ancient history with minimal or no probative value for this case. At this point, we need only note that most of the practices and policies discussed below were present in May of 1954 and that the evidence of both segregatory intent and causation is substantial enough to support the district court’s findings. Further, as noted above, the fact that the Board’s predecessors were guilty of unlawful segregation after Brown I does have an impact on the Board’s case today. It placed the Board thereafter under an affirmative duty to eliminate all vestiges of the dual system.

The district court made detailed findings regarding a number of practices which it considered supported the ultimate finding of de jure segregation. Perhaps the most extensive finding related to gerrymandering of school attendance zones within the allegedly neutral framework of the neighborhood school system. In the Board’s initial set of neighborhood boundary lines, the district court found,

“[they] were drawn with knowledge of racial residential patterns and the housing discrimination underlying it. Not only did the Board not attempt to promote desegregation, but the boundary lines tended to cement in the segregated character of the elementary schools.” 332 F.Supp. at 666.

Our examination of the record shows this finding to be supported by substantial evidence. Most characteristic is the district carved out for School 64 which exactly covers a small enclave of blacks on the southeast side of Indianapolis. That it was easy for the Board to superimpose these geographical limitations on the patterns of residential discrimination discussed by the district court does not make the congruency of housing and school boundaries inevitable. It was just such a use of boundary lines to lock in previous segregation which was condemned in United States v. School District 151, supra, 404 F.2d at 1132, and United States v. Board of Education, Tulsa County, Okla., supra, 429 F.2d at 1255 and 1259.

This questionably fortuitous superimposing of boundary lines was highlighted by the district court when it alluded to the inconsistent application of the generally accepted principles for drawing zones for neighborhood schools, thereby increasing racial imbalance, 332 F.Supp. at 666, n. 54. Such evidence was considered probative of the existence of a dual school system in United States v. Board of Education, Tulsa County, Okla., supra, 429 F.2d at 1256. On the whole, we think that the record is clearly sufficient to support a finding of gerrymandering of school boundary lines. Certainly, we are unable to say* that the finding is clearly erroneous. Once again, it is not any one specific change which would allow a court to find such a fact, but the pattern and practice from which the court could infer the impermissible occurrence. Cf. Downs v. Board of Education of Kansas City, 336 F.2d 988 (10th Cir. 1964). The district court in the present case rejected similar explanations raised by appellants, at least as to some of the changes, and we cannot say that this finding is clearly erroneous on the record before us. We agree with the court in Keyes v. School District No. 1, Denver, Colorado, supra, 445 F.2d at 999, that “we can perceive no rational explanation why state imposed segregation of the sort condemned in Brown should be distinguished from racial segregation intentionally created and maintained through gerrymandering, building selection and student transfers.” See also United States v. Jefferson County Board of Education, 372 F.2d 836, 876 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 (5th Cir. 1967).

In support of the finding of a policy of gerrymandering school boundaries was the use of optional attendance zones discussed by the district court at 332 F. Supp. at 668. Although the Board asserted a variety of explanations for these optional zones, there is no doubt that its effect was to allow whites in racially mixed neighborhoods to choose to attend a “white” school and blacks to attend a “black” school. There was testimony in the record as to informal practices of encouraging low achievers and problem students who were black to go to all-black Crispus Attucks High School. This practice was identical to one condemned in Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175, 183 (1969), aff’g Hobson v. Hansen, 269 F.Supp. 401 (D.D.C.1967). Moreover, since the optional attendance zones in the present case were superimposed upon a system with a substantial history of state-enforced segregation, we find particularly applicable those cases which have questioned freedom-of-choice plans as a means for eliminating de jure segregation.

In Green v. County Board New Kent County, supra, and Raney v. Board of Education of the Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968), the Supreme Court, although not holding freedom-of-choice plans to be unconstitutional per se, stressed that they were not always an effective way of desegregating a dual system, and, in fact, might serve only to perpetuate separation of the races by placing the burden for desegregation on the children and their parents rather than on the school board where it belonged. If we follow the Supreme Court’s mandate in Monroe v. Board of Commissioners of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), and look at the effect of the free transfer plan on the school system, then it becomes quite clear that the district court’s disapproval of these optional attendance zones was not clearly erroneous. of

Further reinforcing the district court’s opinion was the stipulated fact that “it had been the general policy and practice of the defendants and their predecessors in office ... to assign teachers (including substitute teachers) and staff members to schools, . . . so that, in general, the faculty and staff of each school mirrored the racial composition of the school’s student body.” Such a practice was condemned by the court in Davis v. School District, of the City of Pontiac, Inc., supra, 443 F.2d at 574 and 576. But more significantly, the practice was impliedly condemned by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 18, 91 S.Ct. at 1277: “Independent of student assignment, where it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.” The fact that after the Government initiated this suit the Board of School Commissioners by stipulation agreed to eliminate this policy and assign teachers on a nonracial basis under court supervision will be discussed hereinafter. At this point, we only note that as of 1968, substantial faculty segregation (to match the student segregation — whether de jure or de facto) was the admitted policy of the Indianapolis school system.

The district court also referred to Board practice concerning construction of additions to existing schools and temporary transportation of students when there was overcrowding prior to any permanent resolution of a given situation, 332 F.Supp. at 667-668 and 669. Further, the court noted that the construction of new schools fitted into a pattern of promoting racial imbalance and isolation, 332 F.Supp. at 668-669. Once again, the general finding of fact as to intent made by the district court is a permissible inference from the evidence presented by the record. There were several instances cited in which additions were built to adjoining schools of opposite racial makeup rather than building a new school between them which would have had a racially mixed student body. It was a similar pattern of construction of additions to existing schools on which the court relied in part in finding de jure segregation in United States v. Board of Education, Tulsa County, Okla., supra, 429 F.2d at 1256. In addition, the placement and usage of junior high schools was stressed by the Government in its case in chief. In those examples, certain intermediate grade pupils were put into junior high schools with the pupils coming from elementary feeder schools basically of one race makeup even though another elementary school not used for feeding, containing basically pupils of the opposite race, was as close to the junior high school and often was more overcrowded than the feeder schools.

With respect to the district court’s findings on the Board’s choice of sites for new schools, of particular interest is the fact that the two newest high schools have been constructed in the furthest extremities of the School City, as far as possible from the center city black areas. Although the construction of schools to service these rapidly developing areas was indeed necessary, their location at the most distant points of the School City apparently was viewed by the district court as one further fact from which it inferred a segregatory intent, an inference which we cannot say is clearly erroneous on the record as a whole. As this court said in United States v. School District 151, supra, 404 F.2d at 1133, “it does not follow from the absence of a duty to achieve racial balance that a Board may deliberately select sites to achieve racial segregation.” Nor, we will add to the foregoing statement, may a Board deliberately but unnecessarily select sites the obvious result of which is the achievement of racial segregation.

Similarly, the Chief Justice’s opinion in Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 20-21, 91 S.Ct. 1267, emphasized that construction of new schools was one of the most potent weapons in maintaining a segregated school system, both by constructing new schools in white suburban areas far from black residential areas, thus allowing racial separation without significant departure from the often enunciated principles of “neighborhood schools,” and by promoting further residential segregation by denoting specific areas as white or black. See also United States v. Jefferson County Board of Education, supra, 372 F.2d at 876.

From the above, we conclude that the findings of the district court are not clearly erroneous, that, in fact, the factors cited by the judge to support the ultimate finding are relevant and significant considerations, not only in our opinion, but also in the opinions of various courts which have dealt with similar cases, and that the inference as to the improper intent which the judge drew from the patterns he saw was proper. As to this last point, we can only emphasize that there are very few cases of school segregation today in which the defendants admit that they had an improper intent. Such intent may then be properly inferred from the objective actions. The district court’s opinion refers not only to specific examples but also to aggregate findings: for example, the court stated, “according to the evidence, there have been approximately 350 boundary changes in the system since 1954. More than 90% of these promoted segregation.” 332 F.Supp. at 670. See Keyes v. School District No. 1, Denver, Colo., supra, 445 F.2d at 1000. There is substantial evidence to support the inference.

There is one further contention raised by appellants that we must consider. As noted above, appellants denied both that they had a segregatory intent and that their actions were the proximate cause of the present severe racial imbalance in many of the schools in Indianapolis. The Board argued that whatever patterns of de jure segregation existed in the past, today’s segregation was de facto, if that. Therefore, it is argued, nothing the Board could have done would have prevented such a situation from occurring unless it had rejected the concept of neighborhood schools altogether, something which the courts have not required in the absence of de jure segregation. This contention is not easily answered since, as the district court’s opinion reflects, other forces both public and private have had significant impact on residential housing patterns in Indianapolis. Arguably, Brown I and Brown II would still reach such conduct even if the result was clearly inevitable. But we can add that in the present case we believe that the district court’s finding is not clearly erroneous when it lays at least a substantial part of the blame on defendants and their predecessors and agents. The Supreme Court in Swann, as well as many other courts, has recognized that school policy has a substantial impact on residential patterns as well as vice versa. Thus, the appellants are not the victims, of the inevitable since their predecessors’ actions have contributed in substantial part to the present pattern. Furthermore, even the appellants cannot successfully argue that the marginal eases in racially mixed areas are inevitable. Those schools which might have racially mixed enrollments today but due to the practices found by the district court are either predominantly white or predominantly black are clearly within the Board’s responsibility. Finally, it would be improper to allow the Board to follow policies which constantly promote segregation and then defend on the presumption of inevitability.

A related consideration is found in appellants’ protestations that they have in the last several years taken substantial steps to correct any possible inequities inherited from their predecessors in office. The district court’s opinion shows, however, that even after the date the suit was filed, defendants continued in some of the patterns which the court found to be segregatory. Even giving the appellants the benefit of all doubts as to the last few years, we would agree with the court in Davis v. School District of City of Pontiac, Inc., supra, 443 F.2d at 575: “However, these same contentions were presented at trial and the District Court, while acknowledging recent efforts to improve the situation, nevertheless found the new policies inadequate to cure the effects of years of purposeful segregation.” Especially as to actions taken after the date on which the suit was filed, as praiseworthy as they may be, such actions go more to the propriety of granting equitable relief rather than to the merits of the district court’s findings. We might also note that since 1968, when this suit was filed, the Board has rejected a plán of desegregation propounded at the Board’s request by a team of educators from the Office of Education, Department of Health, Education and Welfare. Although there was certainly no requirement that the Board accept the proposal, the unqualified rejection of a similar plan was found to be probative of an improper intent in United States v. School District 151, supra, 404 F.2d at 1133.

In sum, this case was tried to a judge who obviously gave it considerable conscientious thought and attention and by able counsel on both sides. We have examined the court’s findings of fact and are unable to say the findings are clearly erroneous that during much of the period from 1954 to 1968 the Board continued affirmative policies which promoted a dual system, and that last-minute efforts have been totally insufficient to eliminate the consequences of those years of discrimination. Since the district ■ court’s findings of fact are not clearly erroneous, and since the court correctly stated the law based on those findings, the judgment of the district court is affirmed.

Affirmed.

      . The district court’s Memorandum of Decision is set out in full as United States v. Board of School Commissioners of City of Indianapolis, Indiana, 332 F.Supp. 655 (S.D.Ind.1971).

      . The district court noted at 332 F.Supp. at 675-676 that by special act of the Indiana legislature the School City of Indianapolis is no longer coterminous with the civil or corporate city of Indianapolis. We draw no inferences from this fact.

      . The district court ordered interim relief and, pursuant to Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II), retained jurisdiction to order further relief. In its brief, the School City questioned the specific interim relief regarding the Forest Manor Middle School, but that controversy was settled prior to oral argument.

      . In 1949, the Indiana General Assembly passed an Act requiring desegregation on a phased basis, ending the official State policy of segregation, Acts 1949, ch. 186, p. 603.; Burns Ind.Stat.Ann. §§ 28-6106 to 28-6112 (1970), IC 1971, 20-8-6-1 to 20-8-6-7.

      . In Bell, there was a specific finding that there was no change in the school district boundary lines, and thus no gerrymandering. Also in Bell there were examples of black students being transferred from predominantly black schools to predominantly white schools to relieve overcrowding.

      . There were over 190 exhibits introduced into evidence by the parties, many with multiple sub-parts. Yet, it would be inaccurate to say that the documentary evidence was all that was involved since the trial lasted several days, with the transcript covering over 2000 pages if three depositions admitted into evidence are included.

      . The most graphic example of such gerrymandering is found in the feeder schools chosen to send students to all-black Crispus Attucks High School in 1954, the year Brown I was decided, and continued for years thereafter.

      . We note that such inferences are not unique to this area of the law. The doctrine of “conscious parallelism” in antitrust law involves a similar inference of intent from objective factors. See Antitrust Developments, 1955-1968, at 22-24. See also Littleton v. Berbling, 468 F.2d 389, 408 (7th Cir. 1972).

      . The integration of Crispus Attucks High School, the desegregation of faculty appointments, and the majority to minority transfer program were adopted only after this suit was filed.