author: WINTER, Circuit Judge:

text:
    Ruby R. MARTIN, Appellant, v. SECRETARY OF DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Appellee.
    No. 73-1298.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 7, 1973.
    Decided March 5, 1974.
    Robert O. DuPre, Anderson, S. C., for appellant.
    Jean A. Staudt, Atty., U. S. Dept. of Justice (Harlington Wood, Jr., Asst. Atty. Gen., Morton Hollander, Atty., U. S. Dept. of Justice, John K. Grisso, U. S. Atty., on brief), for appellee.
    Before WINTER, FIELD and WIDENER, Circuit Judges.
   WINTER, Circuit Judge:

Ruby R. Martin was denied Social Security disability benefits by the Secretary, notwithstanding her claim of inability to engage in any substantial gainful activity because of diabetes and high blood pressure. The district court found that there was substantial evidence to support the Secretary’s denial of her claim. From our analysis of the record, we conclude to the contrary. We conclude also that a regulation of the Secretary- — or the interpretation, adopted by the hearing examiner and Appeals Council — making end organ damage an exclusive prerequisite to a finding of disability from hypertensive vascular disease cannot be given that effect. We reverse the district court’s judgment and remand the case with directions to require the Secretary to grant the claimed benefits.

I.

There is no dispute that Mrs. Martin has suffered from diabetes for an undisclosed number of years and that she has had severe hypertension since at least 1962. Presently 49 years old, she claimed that she became disabled on November 23, 1966. Her fully insured status under the Social Security Act extended until December 31, 1971. Prior to the cessation of employment on November 23, 1966, she worked for 23 years in a mill as a weaver. She has an eighth grade education. In addition to diabetes and severe hypertension, she underwent a single, simple mastectomy in 1969 for adenocarcinoma of the breast, benign cysts were removed from her other breast, and in 1970, a 30% loss of hearing in each ear was medically detected, as well as “grade two” arterial changes in her eyes. Fortunately, there has been no later evidence of carcinoma of the breast and that condition, as well as the hearing loss, are not asserted as the cause of her claimed disability; they are relevant only with regard to possible employment available to her if it is determined that she has any residual functional capacity to work.

The dispute in the case revolves about whether Mrs. Martin does have any residual functional capacity to work. On this issue, she claims that she has headaches and shortness of breath when she walks upstairs, that she has dizzy spells severe enough to induce nausea and vomiting, that she occasionally loses her orientation not knowing where she is or what she is supposed to do, that she is unable to operate' a motor vehicle, and that she is intermittently so weak that she is bedridden. The greatest physical activity of which she is capable is to be around the house, to make her own bed, and to walk slowly for short distances.

Mrs. Martin’s medical records amply document her physical complaints, diseases and physical impairments. Both Mrs. Martin’s personal physician and the neutral, impartial physician of the South Carolina Vocational Rehabilitation Department support her claim that she is physically unfit for any employment. Dr. Thomason, her personal physician, reported in April, 1970, that:

[i]t is my impression that because of her severe hypertension which has persisted under intensive treatment and which she is very cooperative with in following the treatment, along with her diabetes and carcinoma of the right breast, for which only a simple mastectomy was done, I believe this patient is eligible for total, permanent disability for any gainful employment.

Dr. Poole, an impartial internist acting as consultant for the South Carolina Rehabilitation Department, conducted a comprehensive consultative examination of Mrs. Martin. After reporting his physical findings, he stated:

This patient has two major problems each of which singularly being able to produce profound vascular degeneration and which in combination is a truly deadly pair of diseases.
It is not known why her antihyperten-sive treatment is not more vigorous than it appears to be and it is possible that a considerably lower level of blood pressure reading could be obtained simply by addition of adequate amounts of thiazide to the methyl dopa which could be increased if necessary.
In addition more attention to her diet and an increased intake of one of the sulfonyl ureas, Dymelor could probably further improve the regulation of her diabetes.
However, it is the opinion of this examiner that her hypertension is so severe and has been of sufficient duration as to preclude returning her to a semblance of good health. Furthermore, she has a major impairment in her hearing which seems to be of the conduction type and this can be expected to get worse. (Emphasis added).

The only evidence to show that Mrs. Martin’s claim was not well founded was the opinion of Dr. William W. Pryor, the Social Security Administration’s non-examining doctor who testified at the hearing and who submitted a report. Dr. Pryor’s report and testimony were based solely upon Mrs. Martin’s medical records. He conducted no examination or independent tests. He found that Mrs. Martin had had “essential” hypertensive vascular disease for at least ten years without end organ damage, although she did have some narrowing of the arteries and “Grade II retinophy.” He found no evidence of renal impairment, actual cerebral hemorrhages or stroke, or any organic damage to the brain. He confirmed that she had diabetes which had been documented, but again there was no evidence that the diabetes had produced organ damage. He confirmed that her breast had been removed because of carcinoma, but that for two years there had been no recurrence of the disease. In his testimony, he repeated that she had “essential hypertension” — “extremely high diastolic pressures” — and diabetes without organ damage.

Based upon these adopted findings, he expressed the opinion that there was no physical reason why Mrs. Martin could not do light or sedentary type work. He did testify that she had been treated at the National Institute of Health because she suffered with unusual hypertension, and that NIH would not have undertaken her treatment had she not been an exceptional case. He also said that she could not perform a job where she was required to reach down and up all day because she would become dizzy, and that she could not do well in a production job where output was a major consideration.

A vocational expert for the Social Security Board testified that in the area of light and sedentary work, Mrs. Martin could be a cashier, work as a personal assistant or attendant, work as a tool-room attendant, inspect shirts, or pack shirts. When reminded that Mrs. Martin had a hearing impediment, he agreed that her ability to work as a cashier would be adversely affected.

The hearing examiner’s recommendation that her claim be rejected, adopted as correct by the.Appeals Council, was predicated upon his findings that although Mrs. Martin has hypertension and diabetes, there has been no end organ damage resulting from either disease, that Mrs. Martin’s impairments, taken singly or in combination, do not preclude her from a light or sedentary job, and that there are jobs existing in the national and local economy within her capabilities, such as cashier, laundry attendant in a launderette, folder and fluffer in a launderette, cashier at a movie theater, cashier at a restaurant, shirt inspector, or shirt packer. He therefore concluded that the evidence failed to establish that Mrs. Martin’s impairments prevented her from engaging in substantial, gainful activity for any continuous period which lasted, or could be expected to last,- for twelve months.

II.

The examiner’s rejection of Mrs. Martin’s claim can be supported only by

the opinion evidence of the non-examining Social Security doctor. Thus, the legal question presented is whether that evidence is substantial enough to sustain the result when (a) the claimant’s subjective evidence of disability, (b) the expert medical opinion of examining physicians, (c) claimant’s vocational history, and (d) the objective medical facts, are all to the contrary- We think not.

Hayes v. Gardner, 376 F.2d 517 (4 Cir. 1967), is directly in point, not only on the facts but on the law. In Hayes, which followed Underwood v. Ribicoff, 298 F.2d 850 (4 Cir. 1962), we held, where the claimant’s principal complaint was hypertension, that the opinion of a doctor who never examined or treated the claimant could not serve as substantial evidence for a finding of non-disability when it was, as in the instant case, at odds with the objective medical facts, claimant’s uncontradicted subjective evidence, the opinion evidence of claimant’s examining physicians, and her vocational background. Unless our holding in Hayes has been modified by a later decision of the Supreme Court, or the Secretary’s regulations — questions which we will presently reach — it is dispositive. We would not be disposed to alter it unless required to do so, because we think that an examination of a claimant adds such significant weight to a medical opinion as to the presence or absence of disability that, without it, the opinion, standing alone, cannot constitute substantial evidence to support a conclusion which relies solely on it. See Browne v. Richardson, 468 F.2d 1003, 1006 (1 Cir. 1972).

We did not depart from this view in Kyle v. Cohen, 449 F.2d 489 (4 Cir. 1971), where we upheld the Secretary’s denial of benefits. Kyle was not a case in which the non-examining physician’s opinion was the only evidence to support the examiner’s finding of no disability. In Kyle, the opinion evidence unfavorable to the claimant consisted “primarily” of the testimony of the Social Security Administration’s medical advisor and the administration’s vocational expert. However, three other physicians had examined Kyle, and two or more of them were also of the opinion that Kyle was not disabled. See 449 F.2d at 491. Thus Kyle, unlike the present ease, presented a situation in which the medical advisor’s testimony was corroborative of the opinions of physicians who had examined the claimant. Significantly, our opinion in Kyle distinguished the previous holding in Hayes on the ground that in Hayes the “only basis for the Secretary’s decision was the opinion of the expert medical witness who did not examine the claimant.” 449 F.2d at 492.

The decision of the Supreme Court in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), did not alter our decision in Hayes. Perales not only addressed a different question from that presented in the instant case and Hayes-, read closely, it offers support for our conclusion that a non-examining physician’s opinion cannot, by itself, serve as substantial evidence supporting a denial of- disability benefits when it is contradicted by all of the other evidence in the record.

In Perales, the question was whether the medical opinion of a physician who had examined the claimant could serve as substantial evidence supporting the denial of a claim of disability when the physician’s opinion was introduced in the form of a written report, the examining physician was not available for cross-examination, and his report was contradicted by the claimant’s oral testimony and that of his treating physician. The Court held that the written report, “despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the supporting physician and thereby provide himself with the opportunity for cross-examination . . . .” 402 U.S. at 402, 91 S.Ct. at 1428.

Although Perales did not address the question of the weight to be accorded a non-examining physician’s conclusion of an absence of a disability, we find significance in Mr. Justice Blackmun’s repeated reference to the fact that the medical reports in question — admissible even though hearsay — were the product of a medical examination of the claimant. See, e.g., 402 U.S. at 402, 403, 404, 91 S.Ct. 1420. Moreover, the opinion described the function of a non-examining physician as one of explaining medical tests and procedures to the layman examiner and translating medical terminology into ordinary usage. 402 U.S. at 408, 91 S.Ct. 1420. The non-examining physician in Perales did express an opinion, but the court was careful to note that his opinion “did not differ from the medical reports” of the examining physicians. 402 U.S. at 408, 91 S.Ct. at 1431.

III.

Both the report and the testimony of Dr. Pryor, the non-examining physician, pointed out that Mrs. Martin had suffered no end organ damage as a re-suit of either hypertension or diabetes, or both, and the trial examiner found this as an ultimate fact in rejecting her claim of disability. Undoubtedly Dr. Pryor and the hearing examiner had reference to the listing of impairments contained in the appendix to the Secretary’s regulations in 20 C.F.R. Appendix to Sub-part P, part 404, §§ 4.00 and 4.-03. Sub-section C of § 4.00 provides, in part, that “\_h~\ypertensive vascular disease produces disability when it causes complications in one or more of the four main end organs; i.e., the heart, the brain, the kidneys, and the eyes (retinas).” Section 4.03 defines further, by reference to other sections, the types of complications to the four main end organs resulting from hypertensive vascular disease which may constitute disability.

In this case, there was only slight evidence of end organ damage to the eyes and heart. Nevertheless, to the extent that the regulations treat the specified end organ damage as an exclusive prerequisite to the establishment of a disability from hypertension or diabetes, or the hearing examiner may have interpreted the regulations to have this effect, we think the regulation or its interpretation invalid. Nothing in the Social Security Act requires rejection of a disability claim for hypertension or diabetes simply because the claimant has not yet experienced end organ damage. Rather, the Act prescribes as the test for the award of disability benefits the inability of the claimant “to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.A. §§ 416(i) (1) and 423(d) (1)(A). Short of evidence that hypertension -or diabetes, or both, can only prevent a person from engaging in any substantial gainful activity when it results in end organ damage, we do not think that the Secretary has the authority to say that end organ damage is an exclusive precondition to the establishment of a disability from hypertension. There is no such evidence in this ease, and the Secretary has general rule-making authority only to promulgate regulations “not inconsistent” with the provisions of the Act, 42 U.S.C. § 405. As we have shown, the Act does not limit disability as a result of hypertension to cases where end organ damage has resulted if the other prerequisites to prove disability have been established. We have no doubt that the regulation is a handy guide to lay examiners to advise them when disability from hypertension has unquestionably resulted, but the regulation cannot be construed to establish the exclusive means by which the showing may be made.

IV.

In our view, the only substantial evidence shows that Mrs. Martin was disabled within the meaning of the Act and she should have been awarded disability benefits. We will reverse the judgment of the district court upholding the Secretary’s adverse determination, and direct it to remand the case to the Secretary for a proper award. Since the record does not reflect the precise date that Mrs. Martin’s disability had lasted, or could be expected to last, for not less than 12 months, the Secretary should make that determination.

Reversed and remanded.

      . Dr. Pryor agreed that an employer subject to workmen’s compensation laws, or an employer who required a medical examination as a condition precedent to emjjloyment, would not employ her; but this testimony was irrelevant under the definition in 42 U.S.C. § 423(d)(2)(A) which excludes “whether he [a disability claimant] would be hired if he applied for work” as a criterion for determination of disability.

      . It is true that in Kyle, 449 F.2d at 492, we said that Perales held that “written reports may constitute substantial evidence within § 205(g) of the Social Security Act to support rejection of disability claims, notwithstanding the presence of directly opposing testimony by the claimant and direct medical testimony favorable to him” (footnote eliminated), but the written report was based upon an actual examination. Here, the written opinion was arrived at without claimant’s being examined or seen.

      . See Browne, supra, 468 F.2d at 1006.

      . Arterial changes to claimant’s eyes have been noted. Additionally, Dr. Pryor reported :
      The chest appears normal to physical inspection and the sites of the recent breast operations are noted. The heart seems to be normal in size, shape and position and the heart sounds are of average quality, the aortic second sound being louder than the pulmonic second sound.
      * * * * *
      A six foot chest film shows the heart not grossly enlarged but the heart has the appearance of beginning of left ventricular hypertrophy. The arch of the arota [sic] is slightly more prominent than usual but there is no calcification.


source: Caselaw Access Project

author: ROSENSTEIN, Senior Customs Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Norman OLT, Defendant-Appellee.
    No. 73-1995.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 4, 1974.
    Decided Feb. 28, 1974.

      Arthur B. Lara, Jr., Dept. of Justice, Washington, D. C., for appellant; William W. Milligan, U. S. Atty., Anthony W. Nyktas, Asst. U. S. Atty., Cincinnati, Ohio, on brief.
    Anthony Valen, Middletown, Ohio, on brief for appellee.
    Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and ROSENSTEIN, Senior Customs Judge.

       Senior Judge Samuel H. Rosenstein, United States Customs Court, sitting by designation.

   ROSENSTEIN, Senior Customs Judge.

The issue presented herein is whether the information contained in an affidavit established probable cause for issuance of a search warrant. The lower court found the affidavit insufficient and sustained appellee’s motion to suppress. We reverse.

A copy of the affidavit is attached hereto as an appendix. Based on the information contained therein, a magistrate of the Butler County, Ohio, Common Pleas Court issued a warrant providing for the search of:

“The residence at 4103 Harris Road, and the adjacent and attached apartment residence at 4105 Harris Road, both apartments comprising the entire building.”

Execution of the warrant by federal and state law enforcement officers resulted in the seizure of 36,650 tablets of barbiturates and phenobarbital at appel-lee’s residence at 4105 Harris Road, Oxford, Ohio. Appellee was subsequently indicted by a Federal Grand Jury charging violation of 21 U.S.C. § 841(a)(1).

Thereafter, he moved the lower court to suppress the seized illegal drugs on the grounds, (1) that the affidavit failed to establish probable cause for the issuance of the search warrant, and (2) that the affidavit lacked specification as to time. In sustaining appellee’s argument relating to probable cause, the lower court, in the Order appealed from, stated that:

“As indicated above, from the affidavit the Judge could only have probable cause to believe that the fifty pounds of marijuana was located at 4103 or 4105 Harris Road — one or the other —but not both. The affidavit shows probable cause for one of two, but not the two, and not which one of the two.”

Appellee’s second argument relating to specification of time was overruled.

The following principles are applicable to a warrant directing the search of two or more dwellings:

“For purposes of satisfying the Fourth Amendment, searching two or more apartments in the same building is no different than searching two or more completely separate houses. Probable cause must be shown for searching each house or, in this case, each apartment. If such cause is shown there is no reason for requiring a separate warrant for each resident. A single warrant may cover several different places or residences in a single building. But probable cause must be shown for searching each residence unless it be shown that, although appearing to be a building of several...apartments, the entire building is actually being used as a single unit.” United States v. Hinton, 219 F.2d 324, 325-326 (7th Cir. 1955); United States v. Higgins, 428 F.2d 232, 235 (7th Cir. 1970).

To determine if the affidavit established probable cause for the search of 4105 Harris Road, the guidelines announced in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), must be applied:

“The Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” 380 U.S. at 108, 85 S.Ct. at 746; United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1970).

While Harker’s reference in the affidavit to the fact that the marijuana was located at his “neighbors” may be lacking in specificity, it is capable of being interpreted in such a fashion to mean that the marijuana was located at both of his neighbors. Moreover, when this allegation is construed in a non-negative non-grudging sense together with the remaining facts in the affidavit indicating a strong connection between all of the residents involved, it appears that the magistrate was not acting arbitrarily or unreasonably in issuing the warrant providing for the search of 4103 and 4105 Harris Road, see Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973).

In keeping with the teachings of Veru-tresca, Harris and Bastida, we find that too narrow a construction was given the affidavit by the lower court. Accordingly, we rule that the affidavit did contain sufficient information to establish probable cause for the search warrant.

Since appellee cannot cross-appeal in a 18 U.S.C. § 3731 proceeding, we do not reach the issue of specification of time.

Reversed and remanded.

APPENDIX

APPLICATION AND AFFIDAVIT FOR SEARCH WARRANT THE COMMON PLEAS COURT

STATE OF OHIO ] t ss: BUTLER COUNTY J

BE IT REMEMBERED, That on this day before me, the undersigned, Judge personally appeared Special Agent Thomas Powell, BNDD, who being first duly sworn according to law, deposeth and saith that within Milford Township, County of Butler, State of Ohio, and within the jurisdiction of the Common Pleas Court, as this affiant believes and has good cause to believe, in a certain house or place, there is unlawfully concealed and possessed certain Hallucinogenic Drugs including marijuana, LSD; Barbiturates, Amphetimines; Narcotics, Instruments such as needles for the administration of such drugs, Papers, Rollers, and other articles used in the preparation and use of such drugs and that said affiant believes or has good cause ,to believe that said property, or some part thereof, is concealed and possessed in violation of law, viz:

Sec. 3719.41 O.R.C. Possession of Hallucinogens
Sec. 3719.09 ORC Possession of Narcotics
Sec. 3719.172 O.R.C. Possession of Instruments
Sec. 3719.020 O.R.C. Possession of Drugs for Sale

on certain premises described as follows, to wit: The residence at 4103 Harris Road, a duplex apartment building, Red and White Multicolored Brick Construction, on the South side of Harris Road; and the attached and adjacent apartment residence at 4105 Harris Road, both apartments comprising the entire building which premises are located within Milford Township, County of Butler and State of Ohio, within the jurisdiction of this Court; and that such belief is based upon the following facts, to wit: This affiant has purchased 6,877 Grams of LSD from the Usual resident of the apartment at 4121 Harris Road, one David Harker. Harker has been observed coming and going freely between the apartment building in which 4105 and 4103 Harris Road are located. This af-fiant was told by Harker that he would sell him 50 Lbs. of Marijuana which located at his neighbors. Harker did not specify which neighboring unit. Harker has free access to all three apartments having been observed entering them by agents of BNDD and the Butler County Sheriff’s Department. This affiant was told by Harker that there are guns kept in these apartment buildings and that they would be used to avoid apprehension. This affiant, other Agents of BNDD and the Butler County Sheriff’s Department have all personally observed Harker and other residents of these buildings target shooting with guns outside the two apartment buildings on Harris Road. Because of the known presence of these weapons in this building and the likelihood that they would be used against officers executing a search warrant it is requested that the search warrant which issues include authority to enter these apartments without prior announcement or identification of police officers and without knocking prior to entry.

Affiant further says that there is urgent necessity that the above premises be searched in the night time to prevent such contraband articles from being concealed or removed and unable to be found.

(Signature) /s/ THOMAS POWELL

Sworn to before me and subscribed in my presence this 15th day of November, A.D. 1972.

Butler County Common Pleas Court

/s/ ROBERT L. MARRS (SEAL) Robert L. Marrs, TIME OF DAY: Judge


text:
    Carl I. LATHAM, Jr., Appellee, v. CROFTERS, INC., et al., Appellants. Carl I. LATHAM, Jr., Appellee, v. CROFTERS, INC., et al., Appellants.
    Nos. 73-1554, 73-1555.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1973.
    Decided Feb. 28, 1974.
    Thomas E. Palmer, Columbus, Ohio (James C. Aranda, Chicago, Ill., Moritz, McClure & Palmer, Columbus, Ohio, on brief), for appellants.
    David A. White, Rock Hill, S. C. (S. Jackson Kimball, Roddey, Sumwalt & Carpenter, Rock Hill, S. C., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and TURK, District Judge.

       Sitting by designation.

   WINTER, Circuit Judge:

Plaintiff sued Sidney D. Griffith, Crofters, Inc. (a corporation of which Griffith was president and chief executive officer), Deegee Company (a partnership of which Griffith was a partner), and others, alleging that plaintiff paid defendants $65,500 to obtain financing for two of plaintiff’s building projects but that defendants breached their contract as finders and, indeed, had entered into the contract for fraudulent purposes. The action commenced in the district court on May 7, 1971, and the case was set for trial on February 7, 1973.

On the morning of trial, Griffith, through counsel, sought a continuance on the ground that his health would not permit him to attend. The motion was denied; trial by jury proceeded; and a judgment against all defendants for $223,944.70 resulted.

We think the district court abused its discretion in denying the continuance and in failing to grant a new trial after additional evidence concerning Griffith’s non-attendance was adduced. Defendants also complain of errors in the district court’s instructions to the jury, but they neither objected nor excepted to the instructions or failure to instruct, and since we do not find any “plain error,” we do not reach these questions. We reverse the judgment entered against Griffith, Crofters and Deegee, and award them a new trial.

I.

Application of the rule in this circuit that the granting or denial of a motion for continuance is a matter within the sound discretion of the district judge and that his exercise of that discretion will be disturbed only if it appears that it has been abused presents, primarily, a question of fact. We proceed to the facts:

Griffith was a member of the Ohio bar and intended to conduct his own defense. The district court’s local rules required that he associate local counsel. While Griffith was advised of the local rules on October 4, 1971, he did not associate counsel until January 25, 1973. Meanwhile, at a call of the docket conducted on January 25, 1973, at which Griffith was unrepresented, the case was set for trial on February 7, 1973.

On February 7, Griffith’s local counsel orally moved for a continuance, stating that Griffith had suffered a very serious heart attack in December, 1968, necessitating his hospitalization and confinement at home for many months and that on December 28, 1972, Griffith had “again suffered a very serious second heart attack and is confined to coronary care at the Riverside Hospital, Columbus, Ohio.” A colloquy between counsel and the court followed about why Griffith had not been deposed, during which counsel represented that Griffith had been ordered by his doctor “not to tend to any work until February 12.” Counsel presented a letter from Griffith’s doctor certifying that Griffith “was confined to the coronary care unit at Riverside Hospital, Columbus, Ohio, on 20 December 1972 until January 13, 1973. I advised him not to return to work, and his next appointment with me is on February 12,1973.”

The district judge offered to permit counsel to proffer Griffith’s testimony to see if counsel would stipulate to what he would say if present, but no proffer was made.

The district judge did not summarize his reasons for denying the continuance when he made the ruling; but from the colloquy preceding the ruling, some of those reasons emerge. They included (a) disapproval of Griffith’s late employment of local counsel, (b) the admitted failure to present the motion in the form required by a local rule, (c) Griffith’s failure to be deposed to preserve his testimony when he had a history of heart disease, and (d) the absence of an explicit certification by Griffith’s physician that Griffith was unable to come to court or that it would be dangerous for him to do so.

The motion for new trial, filed on behalf of all defendants, was grounded solely on the district court’s denial of the continuance. It was supported by an affidavit of Griffith’s physician in which, in accord with the local rule, he certified that from December 28, 1972 until February 19, 1973, Griffith “has been in varying degrees, totally and partially disabled . . . . Griffith was not fit nor able to attend or participate in the trial of any lawsuit [or] to travel ... to Rock Hill, South Carolina . . . [and] for Sidney D. Griffith to have attended and participated in the trial of the lawsuit would have been and would now be a very serious threat to his life.”

II.

As to Griffith, we think that there was an abuse of discretion in denying the motion for a continuance. Looking at the record as a whole, we think that there was a sufficient showing of substantial danger to Griffith’s life or health had he been required to be present at the trial to mandate the grant of a continuance. It is true that the thrust of the local rule was to require a showing that the life or health of a party or a necessary witness would be jeopardized by an appearance in court and that the data presented to the district court, in support of the original motion, did not make this explicit showing. It did show that Griffith had been in a coronary care unit of a hospital until a little more than a month before the trial and that he was not supposed to return to work on the date of the trial. These statements, coupled with the known fact that Griffith lived a considerable distance from court, should have permitted the inference that the purposes of the local rule were satisfied. In any event, that data was sufficient to suggest, at least, the substantial possibility, later confirmed by the affidavit supporting the motion for a new trial, that the requisite danger existed. Under such circumstances, the district court, if it doubted the completeness of the showing, should have afforded Griffith, or his local counsel, the opportunity to substantiate the claim by additional proof. Davis v. Operation Amigo, Inc., 378 F.2d 101, 103 (10 Cir. 1967). Certainly when the facts were established beyond peradventure of doubt, in conjunction with the motion for a new trial, the district court abused its discretion in denying that motion. Having presided at the trial, the district court, then, inescapably was aware of the importance of Griffith’s testimony.

The other reasons which seemed to have influenced the district court do not require a contrary conclusion. Late employment of local counsel, while a possible source of annoyance, had no relevance to whether the motion should have been granted or denied when the motion was grounded on the intervening illness of a party, rather than local counsel’s lack of preparedness to proceed to trial because of his late employment. Griffith’s failure to preserve his testimony, de bene esse, may have been a censurable omission when viewed by hindsight, but we cannot say that a party who has once had an illness must always record his testimony against the possibility that he may suffer another illness. In short, there was an insufficient basis on which to require that Griffith’s case be tried in his absence and under the circumstances where his version of the disputed transactions could not be presented to the triers of the facts.

We do not commend local counsel for failing to proffer what Griffith’s testimony would have been. Perhaps the failure to do so at the time of the motion for continuance is explained by local counsel’s late employment and the likelihood that they were not certain of the substance of Griffith’s testimony. But in the motion for new trial, they alleged only concludingly that “Sidney D. Griffith’s testimony was absolutely essential to the defense of this case since in addition to being an individual Defendant, he was the President of the Defendant Company, Crofters, Inc., and one of the three (3) partners of the Defendant partnership, Deegee Company, both of which depended considerably on his legal advice and opinion.” Greater specificity should have been supplied, both in fairness to the district court and to serve their clients. Nonetheless, we think that since Griffith individually was a party, the inference that his testimony would be important to his case outweighs a contrary assumption.

III.

In an appropriate case, we have no doubt that a distinction may be made between the absence or unavailability of a party and the absence or unavailability of a witness. Thus, it may not be an abuse of discretion to deny a continuance because of the unavailability of a witness where it would be an abuse of discretion to deny a continuance because of the unavailability of a party. One can theorize also a case in which the converse is true, as for example, where a defendant is sued on a theory of respon-deat superior, solely because of tortious conduct of his agent, unknown to the principal, where the agent, in the absence of the defendant, is competent to testify as to the scope of his agency.

We need not get into these fine distinctions, however, with respect to Crofters and Deegee, because we are persuaded that denial of a continuance as to them was an abuse of discretion because of the illness and unavailability of Griffith. Griffith was president of Crofters and a co-partner of Deegee. He was thus a party, as a co-partner of Deegee, and he was the principal natural person through whom Crofters acted. We have examined the testimony with care, and we will not detail it. But it appears that in the various transactions of which plaintiff complained, Griffith played an-active part together with Harry A. Gro-ban. Crofters and Deegee acted in substantial measure through Griffith. Of necessity, any defense they might have to plaintiff’s claim, especially the imputation of fraud, would have to come largely from Griffith. Together with Griffith, individually, they suffered substantial prejudice in being forced to trial without his presence.

Reversed; new trial granted.

      . The other defendants were Gerald A. Donahue and Harry A. Groban, both of whom were co-partners of Deegee Company together with 'Griffith. While Donahue and Groban appealed from tbe judgment entered against them, they failed to file briefs as required by Rules 28 and 31, F.R.App.P. Accordingly, we dismiss their appeals, Rule 31.

      . Speers Sand and Clay Works, Inc. v. American Trust Co., 52 F.2d 831 (4 Cir. 1931) and Druckman v. Forsyth Furniture Lines, 22 F.2d 59 (4 Cir. 1927) are cited by defendants. Later cases in this circuit in-elude United States v. Seliembari, 484 F.2d 931, 933-934 (4 Cir. 1973); United States v. Inman, 483 F.2d 738 (4 Cir. 1973); United States v. Pigford, 461 F.2d 648 (4 Cir. 1972); United States v. Perchalla, 407 F.2d 821 (4 Cir. 1969). The later cases are criminal eases where, of course, any right to proceed in the absence of a defendant is more questionable than in a civil case, and where there is more chance for a defendant to assert that the denial of a continuance violates a constitutional right than in a civil case. Nonetheless, they set forth the same basic rule of discretion in the district court as is applicable in civil litigation.

      . Defendant Donahue also failed to appear at trial. He wrote to local counsel stating that he would not be present “[o]n physician’s advice . . . due to severe liypertension, and unstable diabetic condition.” His letter added “[t]rust you will successfully represent me.”


author: SHERIDAN, District Judge.

text:
    Clarence MARSHALL, Jr., Appellant, v. Allyn R. SIELAFF et al.
    No. 73-1630.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 29, 1973.
    Decided Feb. 27, 1974.
    R. Stanton Wettick, Jr., Pittsburgh, Pa., for appellant.
    Israel Packel, Atty. Gen., Donetta W. Ambrose, Asst. Atty. Gen., Pittsburgh, Pa., for appellee.
    Before ADAMS and ROSENN, Circuit Judges and SHERIDAN, District Judge.
   SHERIDAN, District Judge.

This is an appeal from an order of the district court for the Western District of Pennsylvania denying in part appellant’s motion for a writ of habeas corpus ad testificandum and granting dismissal of his action for lack of prosecution.

This civil rights action was initiated in June 1972 to secure redress for various allegedly unconstitutional actions by the defendants. Appellant, Clarence Marshall, Jr., an inmate incarcerated at the State Correctional Institution at Graterford, Pennsylvania, filed a complaint under 42 U.S.C.A. § 1983 against certain prison officials and medical personnel at the State Correctional Institution at Pittsburgh, Pennsylvania. In his complaint, appellant made several allegations of violations of his constitutional and civil rights, including the claim that he had been subjected to medical mistreatment while previously incarcerated at the State Correctional Institution at Pittsburgh. Specifically, the appellant claims that he injured his elbow, which required medical attention and an operation, which were refused.

Prior to the date set for trial, appel-. lant filed a motion for a writ of habeas corpus ad testificandum for the appearance of five inmates (including appellant). The district court granted the writ in part, ordering the appearance of the appellant and Rayford Smith, a witness incarcerated at the State Correctional Institution at Pittsburgh. The court denied the motion for the writ as to the other three witnesses — Walter P. McGough, Foster Thomas and Hezekiah Thomas, all of whom were incarcerated at the State Correctional Institution at Graterford — on the ground that the court had no jurisdiction in a civil case to issue such a writ for persons confined outside the territorial limits of the Western District of Pennsylvania.

On the date set for trial, appellant filed a motion for reconsideration of the denial of the writ as to the three inmates at Graterford. At this time, appellant’s counsel advised the district court that these witnesses were essential and that appellant would not proceed with the trial in their absence. Counsel had advised appellant to proceed even if the court denied his motion for reconsideration, because in counsel’s opinion this was the “proper procedure.” Appellant refused to proceed. The defendants moved to dismiss the action for failure to prosecute. After hearing oral argument on the motions, the court adjourned the hearing to take them under consideration. The court thereafter denied appellant’s motion for reconsideration and granted defendants’ motion to dismiss for lack of prosecution. The district court based its denial on the ground that it lacked jurisdiction to issue a writ of habeas corpus ad testifi-candum for persons confined outside the territorial limits of its district, and added that even if the court had the power to issue the writ, it would have been discretionary and, under the circumstances of this case, the court would have refused to issue it.'

Under Rule 41(b) of the Federal Rules of Civil Procedure, as well as under the inherent power of the court, a case may be dismissed with prejudice for want of prosecution. Dismissal is a harsh remedy and should be resorted to only in extreme eases; the policy of the law is to favor the hearing of a litigant’s claim upon the merits. Davis v. Operation Amigo, Inc., 10 Cir. 1967, 378 F.2d 101, 103. Nevertheless, the authority to dismiss for lack of prosecution, both on defendants’ motion and sua sponte, is an inherent “. . . control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash Railroad Co., 1962, 370 U.S. 626, 630-631, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734. Thus, the scope of appellate review of an order of dismissal is extremely narrow, confined solely to whether the trial court has abused its discretion. Dyotherm Corp. v. Turbo Machine Co., 3 Cir. 1968, 392 F.2d 146; Theilmann v. Rutland Hospital, Inc., 2 Cir. 1972, 455 F.2d 853. No precise rule can be laid down as to what circumstances justify a dismissal for failure to prosecute, but the procedural history of each case must be examined in order to make that determination. The power of the court to prevent undue delays and to achieve the orderly disposition of cases must be weighed against the policy of law which favors disposition of litigation on its merits. Link v. Wabash Railroad Co., supra; Dyotherm Corp. v. Turbo Machine Co., supra; Theilmann v. Rutland Hospital, Inc., supra; Richman v. General Motors Corp., 1 Cir. 1971, 437 F.2d 196; U.S.N. Co., Inc. v. American Express Co., E.D.Pa. 1972, 55 F.R.D. 31.

From a careful consideration of the history of this litigation and from all the surrounding circumstances, we hold that the district court’s dismissal of plaintiff’s case for lack of prosecution was not an abuse of discretion. Indeed, appellant left the district judge no choice. The appellant refused to proceed with the trial because of the court’s adverse decision on his motion for issuance of a writ ad testificandum for the three inmates at Graterford, despite the advice of his counsel that the “proper procedure” was to proceed. Both the appellant and ' Rayford Smith were present, having been transferred by the prison authorities to the courthouse. The issues in the case may well have been resolved without the other inmate witnesses. If appellant had proceeded, he might have been successful. If appellant had proceeded and lost, the appellate court would have had a complete record upon which to make its determination.

For these reasons we affirm the dismissal for lack of prosecution and do not reach the substantive issue involving the denial of the writ of habeas corpus ad testificandum. To adjudicate the issue of the writ under the circumstances of this case would undermine the “basic and persisting policy against piecemeal appeals.” Cf. Borden Co. v. Sylk, 3 Cir. 1969, 410 F.2d 843; Kelly v. Greer, 3 Cir. 1961, 295 F.2d 18; Panichella v. Pennsylvania Railroad Co., 3 Cir. 1958, 252 F.2d 452, 454. If a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain review, of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C.A. § 1291. To review the district court’s refusal to grant the writ under the facts of this ease is to invite the inundation of appellate dockets with requests for review of interlocutory orders and to undermine the ability of trial judges to achieve the orderly and expeditious disposition of eases.

The order of the district court dismissing the action for want of prosecution will be affirmed.

      . The district court granted partial summary judgment on the ground of res judicata on all issues except the claim of lack of proper medical treatment for plaintiff’s injured elbow. Appellant did not appeal from this judgment.

      . The State Corréctional Institution at Gra-terford is located in the Eastern District of Pennsylvania.


author: CLARK, Associate Justice:

text:
    Syvalius WALSTON, Jr. et al., Plaintiffs-Appellants, v. COUNTY SCHOOL BOARD OF NANSEMOND COUNTY, VIRGINIA, et al., Defendants-Appellees, UNITED STATES of America, Plaintiff-Appellant, v. NANSEMOND COUNTY SCHOOL BOARD et al., Defendants-Appellees.
    Nos. 73-1492, 73-1493.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1973.
    Decided Feb. 19, 1974.

      S. W. Tucker, Henry L. Marsh, III, and James W. Benton, Jr., Richmond, Va., James A. Overton, Portsmouth, Va., and Jack Greenberg and Norman J. Chachkin, New York City, for appellants, No. 73-1492.
    J. Stanley Pottinger, Asst. Atty. Gen., Brian P. Gettings, U. S. Atty., Brian K. Landsberg, Thomas M. Keeling, Daniel L. Bell, II, Dept. of Justice, Washington, D. C., for appellant, No. 73-1493.
    Frederick T. Gray, Chesterfield, Va., and Joshua Pretlow, Jr., Suffolk, Va., for appellees.
    Stephen J. Pollak, Richard M. Sharp; and David Rubin, Washington, D. C., for amicus curiae, National Education Ass’n.
    Before CLARK, Associate Justice, BOREMAN, Senior Circuit Judge, and BUTZNER, Circuit Judge.

       Supreme Court of the United States (retired) sitting by designation.

   CLARK, Associate Justice:

I.

These consolidated cases are here on appeal from an order of the District Court denying injunctive relief, reinstatement and-back pay to certain black teachers formerly employed by the County School Board of Nansemond County, Virginia. 351 F.Supp. 196 (1972). No. 73-1493 was originally filed on May 27, 1970 by the United States because of its dissatisfaction with the degree of desegregation in the Nansemond County School District under a freedom-of-choice plan. The action sought the total desegregation of the schools and faculties in the district controlled by the Board. Subsequently a desegregation plan submitted by the Board was ordered implemented by the Court for the school year 1970-71. The United States filed a motion in the case on June 1, 1971, for supplemental relief, alleging that the Board’s plan had failed to disestablish the dual school system which had existed for many years in the district. It was further alleged that the Board had instituted a qualification and selection plan for the hiring and the retention of faculty members which had, in fact, substantially reduced its black teaching staff and that the Board had refused to demonstrate that its actions were not racially discriminatory. No. 73-1492 was filed against the Board on August 20, 1971, by thirteen black teachers as individuals and on behalf of the class represented by them. They alleged that the Board had racially discriminated against them and other black faculty members in violation of the Due Process and Equal Protection Clauses of the 14th Amendment by its application of certain testing criteria to them which resulted in the termination of their employment.

II.

Prior to the 1970-71 school year the Board had required each applicant to have a baccalaureate degree, a Virginia teacher’s certificate endorsed for the grade or subject to be taught and three letters of recommendation. The controversy here centers on a new requirement of the Board adopted January 13, 1970 that teachers take the National Teacher Examinations (NTE) and present a minimum score of 500 on the Weighted Common section of the examination. Teachers in non-academic areas were exempted, such as physical and driver education and certain trade and industrial courses. Currently employed teachers were permitted to continue in their positions without taking the NTE; however if a school transfer was effectuated, the teacher could be placed on a three-month provisional contract until such time as there was an opportunity to give the examination. The NTE is given several times a year by the Educational Testing Service of Princeton, New Jersey. It consists of a Weighted Common section and a Teaching Area section. The former offers a general appraisal of the teacher’s basic professional preparation and general academic attainments upon graduation from college and before entering the teaching profession. The latter is a test of the individual’s command of a specific academic subject. The Educational Testing Service does not recommend that the test be used as the sole criterion for employment; however the Board did so use it here, making it the sine qua non of employment.

The Board’s action required that the test be taken by all teachers who came to the School District in the 1970-71 school year and all subsequent applicants. However, as implemented, only those teachers completing their first year of teaching with the School District were required to submit an NTE weighted common test score of 500 or better. The remainder were grandfathered in.

Prior to the inauguration of the NTE, the faculty in the School District was 59 percent black, but after it was implemented, the percentage dropped to 52 percent by 1972. At the end of the 1970-71 school year twenty-five teachers were not offered new contracts and of those, twenty-one were black. Fifteen of these black teachers were terminated solely on the basis of their NTE scores. Twelve of them had from two to twelve years of teaching experience while three had only one year. However, all fifteen had been recommended for retention by their respective principals, several with above average or better overall ratings. In 1970-71, 127 in-service teachers were required to take the NTE test, twenty-one were black and 106 white. Seventy percent of the blacks failed, while only two percent of the whites did so. Only two white teachers were not re-employed as a result of an unsatisfactory score on the NTE. During this same year, the Board employed nineteen white and nine black teachers, none of whom had a college degree nor took the NTE test. In 1970-71, thirty-two white and seven black new teachers were employed who held “collegiate certificates”, a lower level certificate than the “collegiate professional” certificate [awarded to teachers who had completed an education training program] held by the dismissed black teachers. The District Court noted that teaching outside a teacher’s area of certification was an additional ground for dismissal; yet it appears that the Board employed thirty-six white and thirty-two black teachers for the 1970-71 school year to teach academic subjects outside of those for which they were certified. For the 1971-72 school year, the number of black teachers was further reduced by thirty-one, while the number of whites increased by twenty-seven; eighty-two new white teachers were employed but only fifteen new black ones.

The statistics on employment of new teachers was thirty eight percent black in 1970-71, while it was only fourteen percent in 1971-72. Significantly, we note that of the appellants whose employment was terminated for insufficient NTE scores, some had been teaching for over a decade and none had been teaching less than one year. For example, Celestine Whitehead had taught in Nansemond County from 1966-68 when she resigned to join her soldier husband stationed in Europe. Upon returning and during the 1970-71 school year she received the Teacher of the Year Award from the Chuckatuck Ruritan Club. She was terminated that year because of a deficient NTE score, although her principal rated her outstanding or above average in all evaluation categories and recommended the renewal of her contract. Another teacher, Josephine Gatling, was employed to teach physical education and driver education, subjects that were exempted from the NTE test under the announced policy guidelines of the Board. Nevertheless, she was required to take the test and upon her failure to make a score of 500 she was terminated at the end of the 1970-71 school year. On the other hand, other teachers in brick masonry, auto mechanics and electronics were exempted. Another teacher, Thelma Corprew, had taught three years, the last year in Nan-semond County. She was terminated in 1971 because of her NTE score. She took the NTE test again, making 505, but was told the faculty had no vacancies ; yet three white teachers were employed to teach in the same grade after she had been refused.

III.

The trial court found that “there was no racial motivation involved in any decision of the school board” but held that this “lack of intentional discrimination” was not dispositive of the case although it acknowledged that two situations involving de facto discrimination in violation of individual rights were presented by the facts. The first was that the adoption of the NTE requirement resulted in the severance of more blacks than whites and secondly, that a “larger number of blacks were demoted or refused re-employment based upon the subjective evaluation form and the recommendation of the principal.” The question, the Court posed, was whether the employment standards utilized by the Board were justifiable under the Equal Protection Clause. Citing Western Addition Community Organization v. Alioto, D.C., 330 F.Supp. 536 (1971), the Court reasoned that if there was “a reasonably necessary connection between the qualities tested . . . and the actual requirements of the job to be performed,” [at 539] “it would seem to make no difference whether the classification being attacked” was “on the basis of race . The test need only reasonably measure those abilities which are essential to the job to be performed.” 351 F.Supp. at 203. The Court then applied this “reasonable measure” criterion and decided that, although the NTE had no “predictive validity”, it did have “content validity — that is to say, the knowledge and abilities tested are those used in the job contemplated.” It then found that the evidence, “including that from the plaintiffs’ own experts, would seem to indicate that the test validly measures skills essential to the teaching profession.” Finally, the Court adopted, absent any clearly conflicting evidence to the contrary, the views of one of the expert witnesses, Dr. Deneen, who “commented that many school districts abused teacher rights with an indiscriminate use of the NTE, having made no effort to justify its actions. Nansemond County on the other hand has what he considers to be faults but with good explanations for the use they have made of NTE.” Id. at 205. After thus approving the School Board’s NTE policy, the Court discussed some of the individual teachers released, including those in which the principals had not recommended their retention and found justification for termination present in all cases save one who was terminated by the unification process of the School District. Her demotion was ordered by the Board without any comparison of her qualifications with others in the School District performing similar duties. She was given relief “if the government has standing to seek relief in her behalf. For the reasons hereafter set out, we reverse the judgment and direct that the teachers terminated solely upon the basis of NTE scores be reinstated with full back pay; that the cases of the teachers terminated “for cause” be re-examined at a hearing to be held by the District Court at the earliest practicable date to consider the validity of such dismissals and the appropriateness of reinstatement; that appropriate injunctive relief be issued and that damages, if appropriate, be awarded.

IV.

The issue as framed by the District Court is whether the Board’s employment standards are “justifiable . in light of the equal protection clause . . .”. It found that: “there was no racial motivation involved in any decision of the school board, other than the avowed purpose of keeping the black to white ratio constant.” In our view this finding and the court’s analysis overlook the rule of this Circuit in Chambers v. Hendersonville City Board of Education, 4 Cir., 364 F.2d 189 (1966), and which was recently approved and endorsed in Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). There it was held that when the ranks of black teachers in a school district with a long history of discrimination have been decimated disproportionately, an inference of discrimination is raised which shifts to the school board the burden of justifying its conduct by clear and convincing evidence. As Mr. Justice Brennan said in Keyes, swpra, “In discharging that burden, it is not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanations for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions.” 413 U.S. at 210, 93 S.Ct. at 2698. The Board argues that no inference of disci'iminatory motive was raised “because there were valid reasons for the use of the test.” We find the reasons articulated insupportable. The District Court did hold that for the NTE to pass muster, it was necessary that there be a “reasonably necessary connection between the qualities tested . . . and the actual requirements of the job to be performed.” [Emphasis supplied] But we find this to be error. The Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) held that the test must “bear a demonstrable relationship to successful performance of the jobs for which it was used.” 401 U.S. at 431, 91 S.Ct. at 853 [Emphasis supplied] This standard is much more rigorous in its burden than the standard actually utilized by the District Court here. Using this less stringent standard the Court concluded that the NTE test had “content validity” and could therefore be used in the teacher evaluation and selection process. We find no clear evidence to support that conclusion. The test itself was not introduced into evidence. Nor were there any comparative analyses or studies conclusively demonstrating that the knowledge necessary for the teaching positions bore any relation to the questions on the examinations. In this connection, the District Court itself found that “the evidence clearly establishes that no study has shown any correlation between any score and an ultimately effective in-service teacher.” 351 F.Supp. at 203. If this be true, the NTE cut-off score of 500 is patently arbitrary and discriminatory. Superintendent Wood testified that he knew that black teachers were less likely to score as high as white teachers.. Further, the reason for its adoption appears to be arbitrary based on the fact that Nansemond School District was getting the cast-off teachers of other school districts that required the 500 score cut off on the NTE. Mr. Wood testified that it was adopted because the Board “found that we were getting many teachers coming in from Chesapeake, Portsmouth, Norfolk, Virginia Beach” and “many of the teachers we were getting were unable to become certified in North Carolina”; and “we found that all of these school divisions required a minimum of 500 on the National Teachers Examination So that presented a problem . . . So taking all of this into account we felt that our teachers coming into Nansemond County should at least bring a minimal amount of general knowledge into the classroom.” And the Board adopted the NTE 500 cut-off score to accomplish this. Moreover the Board compounded the problem of disparate racial impact by making the NTE 500 cut-off score the sole criterion for job selection, although the Educational Testing Service itself, the District Court found, “could not condone blanket use of a minimum cut off score.” In addition, the Board arbitrarily and erratically administered the NTE, requiring some “exempted” teachers to take the test and not requiring that others similarly situated do so. Finally, the District Court found, the Educational Testing Service “has said that the test was least valid when applied to experienced teachers”. Yet the Board nevertheless required many teachers regardless of their experience (which exceeded ten years in some instances) to take the test and then refused them employment or re-employment if they failed to make a score of 500 or better. On top of all this, the Board employed twenty eight teachers in the school year 1970-71 and twenty four in the year 1971-72 without requiring either a college degree, which was the old requirement, or requiring them to take the NTE, which was the new one. Obviously, the District Court’s finding that the action of the Board was not discriminatory is clearly erroneous and we so hold. As Judge Dyer said in Baker v. Columbus Municipal Separate School District, 462 F.2d 1112 (5th Cir. 1972) when the NTE “produces a racial distortion it is subject to strict scrutiny . In order to withstand an equal protection attack it must be justified by an overriding purpose independent of its racial effects.” At 1114. We find no such overriding purpose here. While a school board’s desire to improve the caliber of its faculty is a laudable one, the policies and procedures employed must be clearly and fairly related to this goal. The totality of the record, on the contrary, indicates a strong undercurrent of discrimination that has effectively decimated the ranks of black teachers whose credentials are equally, if not more, impressive than many of those hired by the Board.

We need not discuss at length whether the NTE has “content validity”. The District Court noted in Footnote 8, 351 F.Supp. at 204, content validity alone may be acceptable where a well developed test, consisting of suitable samples of essential knowledge, skills or behaviors composing the jobs in question, are posed in the examination. 29 CFR § 1607.5(a). However, we do not find the necessary prerequisites for such a finding by the District Court since no such samples, job analyses or validation studies were provided or conducted. Nor did any expert testify that the questions posed tested the existence of the knowledge essential to performance in the teaching positions. More critical is the District Court’s express finding that the NTE had no “predictive validity”. The burden of showing “a manifest relationship” between the test and the job is upon the Board. Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S.Ct. 849, 28 L.Ed.2d 158. In that case the Chief Justice pointed out the inadequacy of “broad and general testing devices.” Id., 401 U.S. at 433, 91 S.Ct. 849, 28 L.Ed.2d 158. As concretely put by the Chief Justice, “any tests used must measure the person for the job and not the person in the abstract.” Id., 401 U.S. at 436, 91 S.Ct. at 856. Here the tests measure the person in the abstract. While a copy of the National Teacher Examinations is not in the record, we have taken the liberty of reproducing in an Appendix some of the questions which appeared in the amicus curiae brief of National Education Association. If these questions are a fair example of the remainder of the examination, any connection between the examination and effective teaching is purely coincidental. The NTE, as used by the Board, does not purport to measure the teacher’s actual knowledge of the subject matter assigned to be taught or his performance in the classroom, but places primary emphasis on general education and professional education.

In construing Title VII of the Civil Rights Act of 1964, the Supreme Court in Griggs, supra, stated unequivocally that: “If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” 401 U.S. at 431, 91 S.Ct. at 853. Here the School Board conducted no “meaningful study” of the relationship between the test and “job performance ability.” Id. .Since, as previously stated, the District Court expressly found that the NTE had no “predictive validity” and since the statistics in the record confirm that Negroes have been excluded, we are led to the inescapable conclusion that the Board’s use of the NTE was improper.

The blanket grouping of employees for testing in a single examination has been condemned by this Court in Moody v. Albemarle Paper Company, 474 F.2d 134, 139 (4th Cir. 1973). If the jobs are substantially different, it is reasonable to conclude that the relationship between jobs and the tests related thereto must vary as among various jobs. In the Nansemond schools some teachers might teach reading and writing to seven-year olds; others chemistry or foreign language to sixteen-year olds; still others may have classes in science, English, mathematics etc. Some of these subjects do not require much “general knowledge” for one to be an expert in teaching them. A job analysis for one teaching position (and the appropriate test for it) would not necessarily be suitable for another. Of course, specific subject area testing is covered by another section of the examination called the Teaching Area Examination. Yet the Board did not require subject area testing. Had it done so, we surmise that experienced teachers might have scored more satisfactorily. In any event, it was unfair, we find, to give only the Weighted Common examination to experienced teachers who have long since finished their college careers. This requirement is contrary to the specific recommendation of the Education Testing Service. See Footnote 4, supra. General knowledge may be fleeting, and the Educational Testing Service designed the test, given by the Board, for new teachers who are finishing or who have just completed their college education. As the guidelines of the Educational Testing Service say: “Test scores contribute little or nothing to the evaluation of an in-service teacher.” Hence the Board by requiring appellant teachers to take the NTE violated the direct recommendation of the Educational Testing Service itself.

Again, we must find fault with the NTE used by the Board for predictive purposes. The Board used a cut off test score of 500 as a prediction of the effective teaching capacity of its teachers. Indeed, Superintendent Wood testified that was why the Board adopted it; yet, the “Prospectus” of the ETS states that the NTE is “not intended as a measure of classroom teaching performance.”

We recognize that school boards should and do have wide discretion in the performance of the important duties assigned to them. Theirs is the most vital function in a free society — the education of youth. The level of their accomplishment will determine whether a free society will long exist; for educated minds are the guardian genius of democracy. The well-springs of education must therefore be maintained pure and strong. At the same time the principle of equal employment opportunity is the law of the land (42 U.S.C. § 2000e-2) and it must never be dishonored. To maintain the high purposes of education, we must encourage and protect those who devote their lives to this worthy endeavor. To this end school boards must make certain that teachers are not the victims of abitrary, discriminatory action, both in their entry to and continuance in the profession. It, therefore, is the affirmative duty of every school board to eradicate “root and branch” every vestige of segregation and discrimination in their respective school systems. Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). This may be a difficult task but it must be done. Such challenges are not new to Americans. If we falter in meeting them, we reflect our inadequacy for greatness.

What we hold today is not to say that the NTE cannot be utilized under any circumstances as one possible type of “objective criteria” under the rule in Chambers, supra. However, it cannot be used as a tool of discrimination; it cannot be used without proper validation studies and job analyses under the rule in Moody, supra. Nor can it be administered capriciously in derogation of the guidelines promulgated by the ETS so as to have a racially disparate impact. It may well be that when properly and fairly applied in appropriate situations, the NTE could qualify as having the “demonstrable relationship”, as required by Griggs, supra, so essential to ensure equal employment opportunity.

We hold that the NTE, as applied here, was discriminatory and that the teachers terminated because of their failure to make a 500 score on the test must be reinstated with back pay and their damages, if any, settled. The facts surrounding the dismissal of certain teachers “for cause” must be re-examined by the District Court with a view to making certain that their dismissal was not linked to discriminatory action with the burden of proof on the School Board; and if it was, then appropriate relief should be afforded them. Injunc-tive relief must be granted in such terms as will insure that further discrimination in the employment and retention of teachers in the School District will not recur. Finally, the District Court, in the exercise of its sound discretion, may grant such other and further relief as it deems necessary and appropriate. The judgment is reversed and the cause remanded for further proceedings in keeping with this opinion.

It is so ordered.

APPENDIX

The professional education section of the test asks questions such as:

“8. One curriculum pattern involves introducing significant concepts during the first year of school and continuing their development at increasing levels of complexity in the following years. This type of curriculum plan for concept development is called the
(A) spiral approach
(B) open-ended approach
(C) concrete to abstract approach
(D) contrasting dimensions approach
(E) deductive approach
“9. Which of the following statements best describes the nature of mental growth in the child?
(A) Mental development begins at birth and parallels physical growth in rate and length in years.
(B) Mental growth begins at birth and ends at death.
(C) Mental growth in the normal child is progressive but somewhat uneven.
(D) The length and extent of mental growth cannot be altered after birth.
(E) Mental growth necessarily parallels social and emotional development.”

The test of written English expression, for example, asks which, if any, of the following is in error:

“When it snows on the flat, open A
plains, it piles up into huge drifts "B C
that make roads impassable. No error D ' E

and which of the following constitutes the best answer:

“The chemical formula was so complex, and no one was able to remember it.
(A) so complex, and
(B) very complex, therefore
(C) so complex that
(D) too complex that
(E) of a degree of complexity so great that”

The remaining 50 percent of the examination calls for information such as the family living next door is not a “social group” (Question 164); Ramsey Lewis is not a trumpet player (Question 188); St. Basil’s Cathedral is an example of the Byzantine influence on architecture (Question 198); a Minotaur is half-man, half-bull (Question 208); the subject matter of an oratorio is typically religious (Question 215); Althea, Julia, Lucasta, and Corinna were ladies who inspired the poetic ardors of the Cavalier poets (Question 218); carbon dioxide is an excellent material for putting out fires because it is heavier than air and does not support combustion (Question 230); the incidence per capi-ta of trichinosis is greater in the United States than in Asia because consumption of pork is low in Asia (Question 240); not all planets in the solar system have moons (Question 243); stars of the first magnitude are necessarily similar in brightness (Question 244); a circle circumscribed by a square, the area of which is 36, has as its own area 9v (Question 262); for all integers x and nonzero integers y, the new symbol1 — ¡, when defined as L-f-i = -^r , means that y y the following must be true —1—| §: 0. (Question 265).

      . Two black teachers, Mrs. Queen Malone and Mrs. Evelyn Jones, who began teaching in the District in 1969, were not extended the grandfather right. They were on leave during pregnancy, Mrs. Jones returning at the beginning of the 1970-71 term; Mrs. Malone tendered a doctor’s certificate that she was able to return at the same time; however the Board required a waiting period of three months after the child’s birth which did not expire until December of 1970, at which time she returned. Both were required to take the NTE and both were terminated for failing to submit a 500 or better score. Mrs. Malone had been teaching 3% years, Mrs. Jones 2y2, each with the District.

      . Five of the twenty one black teachers were terminated because they were not recommended by their respective principals. One teacher, Eula Baker, had been teaching for 29 years, 8 months, of which 12 years was under contract with the Board. She needs only 4 months’ additional service for full retirement. At the Board hearing, neither of her principals appeared, the Board took no vote on her reinstatement, still she was terminated. Mr. Brown, Mrs. Baker’s principal, initially recommended Mrs. Baker for re-appointment but changed his recommendation after being pressured by the Assistant Superintendent. Syvalius Walston, Jr. was terminated after nine years with Nansemond. His evaluation sheet is marked “below average” in the area of “professional dedication”. His principal, Mr. Fulton, originally recommended his reappointment but withdrew it after being pressured by the Superintendent at a principals’ meeting. The Board held a hearing but Mr. Fulton never appeared, and the Board took no vote on reappointment.

      . The teacher, Beulah Watts, an assistant principal, was demoted to a classroom teacher. Since the District Judge’s decision here, her claim has apparently been settled and is no longer involved here,

      . The Prospectus for School and College Officials states : “The National Teacher Examinations are designed to provide objective standardized measures of the academic achievement of college seniors completing fowr-year programs of teacher education. The examinations assess cognitive knowledge and understanding in the three areas of academic preservice preparation for teaching included in practically all teacher-education curricula, specifically, (1) general education, (2) professional education, and (3) subject-field specialization. [The test as to No. 3 was required by the Board] The examinations do not measure manual skills which are essential elements in . . . art, industrial arts, music and physical education . . . Nor do the tests claim to assess such elements as teaching aptitude, interests, attitudes, and personal-social characteristics. Moreover, the NTE are not intended as a measure of classroom performance; those desiring to test teachers in service will not find the National Teacher Examinations a substitute for direct observation of their on-the-job accomplishments.” [Emphasis supplied in each instance] .
      The Guidelines for Using the National Teacher Examinations state: “The NTE are used in many teacher training colleges can give colleges information that will assist them in reviewing their cur-rículums, admission . . . policies.” “The NTE scores can provide information useful for counseling prospective teachers . . . The learning examined by the NTE represents a sample of teacher preparation programs . . . Several states require that applicants for teacher certification shall have taken the NTE . . . A specific NTE score for certification purposes should be required only for beginning teachers . . . When a teacher lias a record of classroom performance, he should be judged on the basis of that performance ; test scores contribute little or nothing to the evaluation of an in-service teacher . . . In selecting teachers, the weighting of selection criteria is preferable to setting specific minimum score requirements ... a district should systematically observe applicants’ scores over a period of time before it decides on minimum requirements . . . The NTE scores should not be used in decisions concerning the retention of experienced, teachers.” [Emphasis supplied in each instance].

      . As stated, infra, Josephine Gatling, a teacher of courses exempted from the scope of the NTE by the ETS, was nevertheless required to take the NTE; and upon her failure to submit a satisfactory score, her employment was terminated.

      . The questions presented hereafter are taken from the copy of the NTE Common Examinations found on pages 640 through 675 of the appendix in United States v. Chesterfield County School District, 484 F.2d 70 (4th Cir. 1973).