author: FRIENDLY, Circuit Judge:

text:
    Narcisa LOPEZ, Plaintiff-Appellee, v. HENRY PHIPPS PLAZA SOUTH, INC., Defendant-Appellant.
    No. 1043, Docket 74-1078.
    United States Court of Appeals, Second Circuit.
    Argued May 30, 1974.
    Decided June 18, 1974.

      Joseph Delman, New York City (Whitehorn & Delman, New York City, of counsel), for defendant-appellant.
    Nancy E. LeBlanc, New York City (MFY Legal Services, Inc. and Martin A. Hotvet, New York City, of counsel), for plaintiff-appellee.
    Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
   FRIENDLY, Circuit Judge:

Defendant-Appellant, Henry Phipps Plaza South, Inc. (Phipps), is a nonprofit redevelopment company organized pursuant to the New York Redevelopment Companies Law, N.Y.Priv.Hous. Fin.Law § 100 et seq. (McKinney’s Consol.Laws, c. 44B 1962). It was created to build and operate a housing project for low and middle income families in New York City pursuant to the Bellevue South Urban Renewal Plan. The law provides for extensive supervision of the organization, planning and operation of redevelopment companies by New York City’s Housing and Development Administration. Phipps’ certificate of incorporation declares that it “has been organized to serve a public purpose”; that the Housing and Development Administration may remove any director from office if the company fails to comply with the Administration’s requirements; and that Phipps shall remain subject to the Administration’s supervision and control on a permanent basis. New York City acquired the land by exercise of its power of eminent domain and conveyed it to Phipps by a deed which incorporated by reference a' detailed agreement, theretofore approved by the New York City Board of Estimate, with respect to the construction and operation of the project. The property enjoys a 25-year exemption from real estate taxes, other than assessments for local improvements, and so much of its value as exceeds the assessed value at the time of acquisition by the City. Phipps benefits from interest reduction payments provided in § 236 of the National Housing Act, 12 U.S.C. § 1715z-l, and participates in the federal rent supplement program, 12 U.S.C. § 1701s. Participation in a § 236 program is conditioned on the execution of a Regulatory Agreement with the Federal Housing Administration ; this provides, inter alia, minimum and maximum rent schedules, tenant selection priorities, and other restrictions on the landlord’s rental practices.

On October 1, 1970, plaintiff Narcisa Lopez and her husband Thomas Lopez entered into a lease of an apartment in the building which Phipps had constructed pursuant to its arrangements with the City and HUD. Paragraph 9 of the lease provided in pertinent part as follows:

Tenant and Tenant’s family, guests, servants, employees, agents, licensees and visitors shall comply with all of the Rules and Regulations set forth at the end of this lease and such other and further rules and regulations as Landlord may hereafter from time to time deem necessary or desirable and may prescribe for the safety, care, cleanliness and reputation of the demised premises, or all or part of the Development or for the comfort and convenience of Tenant or other tenants of the Development.. Tenant and Tenant’s family, guests, servants, employees, agents, licensees and visitors shall at all times conduct themselves in and about the demised premises and the Development in a manner which shall be free from annoyance to other tenants in the same or neighboring buildings or elsewhere in the Development to the end that other tenants in the same or neighboring buildings or in the Development shall enjoy the occupancy and use of their premises and their rights and privileges as tenants with reasonable comfort, convenience and safety. Failure on the part of Tenant and Tenant’s family, guests, servants, employees, agents, licensees or visitors to observe any such requirements as provided in this paragraph shall be grounds for the termination of this lease in the manner herein provided ....

The one-year lease was renewed, apparently several times. The last renewal expired on December 31, 1972.

On January 12, 1973, Phipps addressed a letter to Mr. and Mrs. Lopez announcing that it had decided not to renew the lease again. The decision was based on thirteen alleged acts of misconduct, most of them attributed to Thomas Lopez, Sr., and the two teen-age sons, Thomas, Jr., and Jose. The letter advised that the tenants could appeal the decision by written request within 15 days. If they sought review, the letter stated, they could ask for a hearing at which they might be represented by an attorney and have witnesses present. In the absence of a request for a review or in the event of an affirmance of the initial decision, summary proceedings for eviction would be instituted.

Through an attorney, Mr. and Mrs. Lopez requested a hearing, which was scheduled for February 27, 1973. The hearing officer was John Codman, Manager of Lambert Houses, a similar project of a non-profit corporation whose stock is owned by Phipps Houses, Inc., a non-profit organization that also owns the stock of the defendant Phipps. At the request of an attorney from MFY Legal Services, Inc., the hearing was adjourned to enable Mrs. Lopez to obtain the services of a Spanish-speaking interpreter. The hearing was resumed on March 6; Mr. and Mrs. Lopez and Thomas, Jr., were present, along with an attorney from MFY Legal Services, who stated that she represented only Mrs. Lopez. Four security guards and a superintendent testified on the behalf of the landlord with regard to various charges against the Lopez family. Thomas Lopez, Sr., testified at the hearing, but Mrs. Lopez and Thomas, Jr., declined to do so. At the conclusion of the hearing, Codman reserved decision. On April 16, 1973, Phipps sent the tenants another letter alleging two further acts of misconduct by Thomas Lopez, Sr., on March 17 and March 23, 1973. The landlord requested a further hearing to explore these charges and to introduce various records that have been subpoenaed from the Police Department. The final hearing was held on May 2, 1973; although they were informed of the date and time of the hearing, the tenants did not attend.

In a report dated July 10, 1973, the hearing officer held that the charges against the tenants furnished substantial ground for the landlord’s refusal to renew the Lopez’ lease. Although the hearing officer found that the landlord had not presented sufficient evidence to prove a number of the charges, he held that the following charges had been established :

(1) On the night of March 20, 1972, a security guard found Thomas Lopez Sr., lying drunk in the lobby of the Lopez’ apartment building. When the guard told him to go upstairs, Lopez swung at him and took out a liquor bottle which smashed on the floor. Police who had been summoned found on Lopez’s person a knife 4 to 6 inches long with a hooked point.
(2) On June 23, 1972, the two Lopez boys tampered with the lock of another tenant.
(3) On July 8, 1972, the New York police were called on a complaint that Thomas Lopez, Sr., was “breaking and throwing objects.”
(4) On November 14, 1972, Thomas Lopez, Jr., was arrested at the leased premises for a felonious burglary and felonious criminal mischief at 530 Second Avenue, a building near the tenants’ apartment.
(5) At 3:25 a. m. on December 19, 1972, Thomas Lopez, Jr., burglarized a bookstore at 310 E. 26 Street, the same building in which Lopez’ apartment was located. When ordered by an officer to halt, he sought to escape and pointed a gun at the officer, who shot him. Jose was also found on the premises.

The hearing officer sustained a charge raised at the May 2 hearing that on March 23, 1973, Thomas Lopez, Sr., was arrested for reckless endangerment, possession of a dangerous instrument, and resisting arrest. The arrest record indicated that Lopez, who was drunk, attempted to grab the arresting officer’s gun and in the ensuing struggle pulled a knife on the officer.

Shortly after the hearing officer rendered his decision, Phipps served a 30-day notice of termination of tenancy; on September 11, summary eviction proceedings were instituted. These led to a warrant of eviction which the state court stayed until September 30, 1973. Mrs. Lopez countered with this action in the District Court for the Southern District of New York under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), to enjoin execution of the judgment of eviction.

The motion for a preliminary injunction came on for hearing before Judge Griesa, who rendered an oral opinion on October 4, 1973. Recognizing that the hearing officer’s decision “shows a careful and objective analysis of the facts,” the judge said: “If I was hearing this matter on or about July 10, 1973, I have some serious doubt as to whether I would grant the plaintiff any relief.” However, it was now early October, he said, “and there is reason to believe that a re-examination of the facts by Mr. Codman or some other designated hearing officer should be made.” The reasons were four: One was that Thomas Lopez, Sr., was “in fact separated from plaintiff Narcisa Lopez” — although no separation decree had been entered and Thomas was legally free to return to the apartment, as he had done in March 1973. Another was that Thomas, Jr., had to be hospitalized for the gunshot wounds he suffered in the attempted burglary of December 19, 1972 and that “he has been withdrawn and may well have been very much removed from mischievous activity since that serious wound.” The third was that the younger son, Jose, had gone voluntarily to a state camp in connection with a juvenile delinquency charge following the December 1972 burglary, and that no reports of subsequent misconduct by him or by Thomas, Jr., had been brought to the court’s attention. The fourth was that a social worker had been assigned to the household “in an effort to accomplish some reform and rehabilitation.” Accordingly, he granted a temporary injunction for a period of forty-five days during which Phipps was to have “the opportunity to hold another hearing.” When Phipps declined to avail itself of that opportunity, the judge extended the injunction to run until the final determination of this action. His reasoning was that “there was a violation of due process by defendant in that the action being taken to evict plaintiff was based in large part upon obsolete facts, and defendant had taken insufficient steps to obtain and consider current information.” This appeal followed.

II.

No one can read the hearings before the district judge and his two opinions without being struck by his sincerity and compassion. However, the issue before him was not whether Phipps had worked out the optimum adjustment in the interests of the Lopez family, the project and the other tenants, but whether in the course of determining not to renew the lease, Phipps had denied the plaintiff due process of law. Mrs. Lopez’ entitlement to traditional' due process protections turns on whether the eviction by Phipps constituted government action and whether she had a legal interest going beyond the stated term of the lease. Her claim that due process was denied depends primarily upon her showing that their eviction was impermissibly based on “obsolete facts,” as the judge held, or that Mr. Codman was not qualified to act as a hearing officer, as she asserts. We rule with her on her claim that, before being evicted for non-renewal of her lease, she was entitled to the due process protections normally required of governmentdl agencies, but against her on her claim that she was denied the protections that were due.

In McGuane v. Chenango Court, Inc., 431 F.2d 1189 (2 Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1238, 28 L.Ed.2d 532 (1971), we rejected a claim that tenants of a project receiving federal mortgage insurance under § 221(d) (3) of the National Housing Act were entitled to a hearing before being evicted by state court proceedings after the landlord’s refusal to renew. Weigand v. Afton View Apartments, 473 F.2d 545 (8 Cir. 1973), rejected a similar claim based on federal funding under § 236 of the Housing Act and a reduction in real estate taxes allowed by Minnesota. However, in McQueen v. Druker, 438 F.2d 781 (1 Cir. 1971), the court found government action in the context of a claimed retaliatory eviction in violation of First Amendment rights. Distinguishing McGuane v. Chenango Court, Inc. as holding “only that mere receipt of mortgage insurance under the National Housing Act does not make a private apartment house owner an agency of a state,” a proposition with which it agreed, 438 F.2d at 782 n. 4, the McQueen court found a much larger governmental involvement in the project there sub judice. The defendant in McQueen purchased the property from the Boston Redevelopment Authority, which had condemned it in connection with an urban renewal program; the BRA played a continuous role in the operation of the project, through detailed regulation of construction, rental agreements, admissions policies, and many aspects of management. Joy v. Daniels, 479 F.2d 1236 (4 Cir. 1973), similarly distinguishing McGuane, 479 F.2d at 1238-1239 & n. 3, found government action with respect to eviction primarily on the basis of the added factor of receipt of rent supplements from the FHA under 12 U.S.C. § 1701s, for which specific authorization from a county council was required. On stronger facts, this court in Male v. Crossroad Associates, 469 F.2d 616, 620-622 (2 Cir. 1972), found state action with respect to tenant selection in an urban renewal project which city officials had originated and in which they were continuously involved and which “was governed by a phalanx of state and federal regulations,” id. at 618; accord, Smith v. Holiday Inns of America, 336 F.2d 630 (6 Cir. 1964); Colon v. Tomkins Square Neighbors, Inc., 294 F.Supp. 134, 137 (S.D.N.Y.1968); McClellan v. University Heights, Inc., 338 F.Supp. 374, 380-82 (D.R.I.1972).

Surveying the array of decisions, we find this case much closer to the government action end of the spectrum than McGuane, indeed closer than Joy v. Daniels. It seems to present only a shade less government involvement than Male. We therefore hold that Phipps was subject to the same due process requirements with respect to eviction that apply to a municipal housing authority. We do not here go beyond tenant eviction and selection, which we have already considered in Male; we leave open what, if anything, due process requires with respect to rent increases in a project such as this. Compare Hahn v. Gottlieb, 430 F.2d 1243, 1246-1249 (1 Cir. 1970); Langevin v. Chenango Court, Inc., 447 F.2d 296 (2 Cir. 1971).

Relying on Board of Regents v. Roth, 408 U.S. 564, 577-578, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), Phipps says that under the circumstances of this ease, the plaintiff had no right to continued occupancy of the apartment that would have been constitutionally protected even if the project had been that of a municipal authority, since the Lopez tenancy expired by its terms on December 31, 1972 and the lease contains no provision for renewal. We appear to have assumed the contrary in Escalera v. New York City Housing Authority, 425 F.2d 853 (2 Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970), where we required due process hearings although the leases were month-to-month automatically renewable tenancies, terminable by either party at the end of any month upon the giving of one month’s notice, 425 F.2d at 857. However, the problem was not discussed and the decision antedated Roth.

Plaintiff counters with the statement in Roth’s companion case, Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), that:

A person’s interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.

In Joy v. Daniels, supra, 479 F.2d at 1239-1242, Judge Craven, writing for the Fourth Circuit, faced the precise issue here presented. He found the penumbras of the Federal Housing and Development Act and the custom of renewal thereunder sufficient that the case was attracted by Perry v. Sindermann rather than by Roth. See also Note, Procedural Due Process in Government —Subsidized Housing, 86 Harv.L.Rev. 880, 890-91, 905 (1973). We agree and have little to add. The federal government, the states and the cities which have extended aid to low and middle income housing hardly expected that a tenant could be evicted at the end of his term simply at the landlord’s whim, when substitute housing could be obtained, if at all, only with delay, disruption in living habits and expense. Cf. Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Purely private housing is, of course, a different matter, see Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972).

III.

Plaintiff contends that even if the foregoing analysis is correct, the temporary injunction must be affirmed, quite apart from the ground on which it was issued, because Mr. Codman was not a disinterested hearing officer.

As indicated, Mr. Codman was the manager of Lambert Houses, another project owned by the parent of Phipps. Like the project here in question, Lambert Houses is operated by-Phipps Houses Services, Inc., a management company which hires the managers of the various projects. Plaintiff argues that Codman was necessarily management-oriented and therefore could not be truly impartial.

Plaintiff’s argument immediately runs into an obstacle in the very decision, Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287.(1970), on which her case depends. In discussing the need for “an impartial decision maker” on the issue of welfare termination, the Supreme Court in Goldberg sanctioned the use of welfare agency officials as hearing examiners. Mr. Justice Brennan, writing for the Court, stated that even “prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker” so long as he has not “participated in making the determination under review.” While we said in Escalera v. New York City Housing Authority, supra, 425 F.2d at 863, that a tenant facing eviction “should be afforded the opportunity to present his side of the case in the presence of an impartial official, not merely to the project manager who instituted the proposed action against the tenant,” the opinion in no way indicated that an official was not “impartial” simply because he was an officer of the Housing Authority. We are not aware that any of the cases involving the dismissal or suspension of students from public universities have considered it to be a denial of due process that decisions rested, in whole or in dominant part, in faculty members or in the college president, although such persons presumably would be more inclined than outsiders to give high priority to maintaining order on the campus. See, e. g., Wasson v. Trowbridge, 382 F.2d 807, 813 (2 Cir. 1967); Powe v. Miles, 407 F.2d 73, 85 (2 Cir. 1968); Winnick v. Manning, 460 F.2d 545, 548-549 (2 Cir. 1972); Blanton v. State University of New York, 485 F.2d 377, 386 (2 Cir. 1973). As the hearing requirement is imposed on more and more agencies, private as well as public, there will be greater and greater necessity for entrusting decision to agency personnel. While professional hearing officers might be preferable, see Note, supra, 86 Harv.L.Rev. at 909-10, there may not be enough of them to go around. See Schwartz & Wade, Legal Control of Government: Administrative Law in Britain and the United States, 121-24 (1972). Moreover, confiding the decision on the propriety of refusal to renew to a person with experience in the management of housing projects has positive factors as well as the negative ones that plaintiff emphasizes. Be all that as it may, “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation,” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). The fact that Mr. Codman might have been disqualified as a judge or subject to challenge for cause as a juror in a dispute between Phipps and Mrs. Lopez does not, either in principle or under the authorities, infect the hearing with a lack of due process.

IV.

We turn therefore to the ground on which the judge based his decision, namely, that “the action being taken to evict plaintiff was based in large part upon obsolete facts.” It is well to repeat at the outset that the Civil Rights Act does not empower a federal judge to interfere with a “state” landlord’s decision not to renew a lease simply because he thinks the decision harsh or unwise; he is authorized to do this only if the tenant has been deprived of due process of law.

The question for decision by the hearing officer was whether Phipps was entitled to serve the notice of termination when it did. This depended primarily on the conduct of the Lopez family prior to January 12, 1973, although it was. appropriate for the hearing officer also to consider subsequent conduct, whether good or bad, up to the time when the record was closed on May 2. Nothing in the papers before us indicates that the considerations urged before Judge Griesa were presented to the hearing officer either at the hearings of March 6 or May 2, by a request to reopen the record in the interval between the hearing of May 2 and the decision of July 10, or even after service of the notice of termination on July 16. Moreover, the judge in effect agreed that if these considerations had been presented as late as July, the hearing officer could properly have rejected them. What the judge did was the equivalent of granting a belated petition for rehearing, addressed not to the hearing officer but to the federal court.

The concept of due process inevitably entails some delay between the conduct claimed by the landlord to warrant termination of a tenancy and the decision whether termination is justified. But due process cannot demand that the running of time required to give a fair hearing and prepare a reasoned decision should also entail the right to a rehearing on the basis of subsequent developments not presented to the hearing officer. The classic statement is Mr. Justice Jackson’s in ICC v. City of Jersey City, 322 U.S. 503, 514-515, 64 S.Ct. 1129, 1135, 88 L.Ed. 1420 (1944):

If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.

He went on to note that “[o]nly once in the history of administrative law has this Court reversed a Commission for refusing to grant a rehearing on the contention that the record was ‘stale’ ”, citing Atchison, Topeka & Santa Fe Ry. v. United States, 284 U.S. 248, 52 S.Ct. 146, 76 L.Ed. 273 (1932). He added, however, that the Court “promptly restricted that decision to its special facts, United States v. Northern Pacific Ry. Co., 288 U.S. 490, 53 S.Ct. 406, 77 L.Ed. 914, and it stands virtually alone.” It still does. See 1 Davis, Administrative Law Treatise § 8.18 at 603 (1958). To be sure, refusal to renew a lease in a low and medium income housing project tugs at the heart strings considerably more than the usual agency determination. On the other hand, to impose the Atchison principle on non-renewal hearings, with the added feature that a federal judge may order such a rehearing even when none was requested of the hearing officer, would mean that no tenant could ever be evicted, even for egrr giously bad conduct, if he behaved properly while under the threat, and that federal courts would be asked to substitute their judgment for that of hearing officers in thousands of cases a year. If, as urged by counsel for appellee, the Lopez boys have reformed and Mr. Lopez can be kept away, this is all to the good. Under these circumstances, the judge could properly have urged Phipps to reconsider its decision. But if Phipps was entitled to serve its notice of termination, as the hearing officer permissibly found it was, due process does not require a further hearing because of improved conduct during the period consumed by the hearing which the tenant demanded or the federal court proceedings which she initiated.

Appellee makes two other points, but these require only brief comment. Relying on Tyson v. New York City Housing Authority, 369 F.Supp. 513 (S.D.N.Y.1974), she contends that the hearing officer’s reliance on the conduct of her now allegedly separated husband was impermissible. Tyson, however, is readily distinguishable, since there the Housing Authority sought to evict tenants solely because of the criminal act of an adult son who did not live with them at the time the act was committed. Here the husband is a named tenant and was living in the household at the time of most of the charged misconduct. Moreover, there is still no legally effective method for keeping him away, however much this may be desired. Beyond all this the hearing officer reasonably found that both the conduct of Thomas, Jr., described in item (4) and of Thomas, Jr., and Jose described in item (5) were a sufficient basis for refusal to renew.

The other point is that Phipps had never established standards to which tenants knew they must conform as a condition to renewal. But paragraph 9 of the lease, which we have quoted above, informed a tenant that he •would be subject not simply to non-renewal but to eviction for conduct of the sort in which Mr. Lopez and his sons had engaged. Moreover, no enunciation of standards is needed to apprise even a family not fluent in English that burglarizing a bookstore on the premises and threatening to shoot an arresting officer would constitute grounds for refusal to renew a lease.

The order granting a temporary injunction is reversed. No costs.

      . The judge stated that “[a]s far as this Court is concerned the leasehold or rental interests of Thomas Lopez expired on the December 31, 1972 date, and as far as this Court is concerned Thomas Lopez has no further interests whatever and no right to occupancy in that apartment or in that building,” and that the landlord might take “whatever steps are necessary to prevent Thomas Lopez from being on the premises.” However much this determination may have been in the spirit of Solomon, we are at a loss to understand how the judge could create a new tenancy for Mrs. Lopez alone or endow the landlord with the right to prevent Mr. Lopez from exercising his rights either as a tenant or as a husband.

      . The housing developments in McQueen and McGuane were both constructed under the § 221(d)(3) Below Market Interest Bate program, which provided that the developer’s interest rates would be limited to 3%, although the project at issue in MeQueen had substantial state supervision and support in addition to the § 221(d)(3) federal subsidy. As we noted in Wahba v. New York University, 492 F.2d 96, 103 (2 Cir. 1974), there is a puzzlement how the receipt of federal aid creates state action to which alone 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) apply. The puzzlement is lessened — perhaps eliminated —when the federal assistance is conditioned upon state action or supervision is vested in a state or municipal agency. Compare the well-known decision in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 967-968 (4 Cir. 1963) (en banc), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964).

      . It must be recognized, however, that allowing hearings in refusal-to-renew cases poses a problem not present in welfare termination and many other types of cases involving termination of a governmentally bestowed benefit — namely, the unwillingness of fellow tenants to testify for fear of reprisal and the hostility between groups of tenants that may be engendered. See Note, supra, 86 Harv. L.Rev. at 906-07. As there suggested, such factors may require some restriction of the right of confrontation, along lines such as those suggested by the Chief Justice in Morrissey v. Brewer, supra, at 487. We leave such questions for another day.

      . We reject the contention that Mr. Codman displayed actual bias by having allegedly stated, at the beginning of the hearing, “that he thought the allegations against Mrs. Lopez and her family were sufficient to justify Phipps Houses terminating her tenancy.” The charges were obviously sufficient if proved; Codman’s statement does not differ essentially from a judge’s action in sustaining a complaint against a motion to dismiss for failure to state a claim on which relief can be granted. Our reading of Mr. Cod-man’s decision leads us to agree fully with the district judge that he made “a careful and objective analysis.”

      . The procedures now required by the HUD circular governing evictions from public housing projects, Grievance Procedure in Low Rent Public Housing Projects, HUD Circular RHM 7465.9 (Feb. 22, 1971), are inapplicable here. Nonetheless, the procedure followed in this case would seem to comply with the requirements of the circular. The circular provides that a public housing authority can select either “an impartial official or a hearing panel” to hear tenant grievances. If the panel is used, the tenants and the housing authority are to be equally represented, “with an impartial member appointed as a tie breaker.” No specific restrictions are placed on the “impartial official” if the authority opts to use a single hearing officer. Thus Codman apparently would not be disqualified from serving as the impartial hearing officer under the provisions of the circular simply because he was an employee of another Phipps project.

      . In the Atchison case the record in the railroad rate-making proceeding had closed in September 1928. The Great Depression struck before the decision in July 1930, but the ICC denied two petitions for rehearing filed in September 1930 and February 1.931, before the order reducing rates had become effective. The Court held that because of the unique change in economic conditions between September 1928 and February 1931, it was an abuse of discretion for the Commission to refuse to reopen the record. It is not clear, however, that even the Atchison case was decided on constitutional grounds.

      . While such termination need not be based on detailed, previously promulgated regulations, due process requires that the termination not be arbitrary or capricious, see Fuller v. Urstadt, 28 N.Y.2d 315 321 N.Y.S.2d 601 (1971); Vinson v. Greenburgh Housing Authority, 29 App.Div.2d 338, 288 N.Y.S.2d 159 (2d Dep’t 1968), aff’d without opinion, 27 N.Y.2d 675, 314 N.Y.S.2d 1 (1970).

      . If counsel for Phipps had asked us also to direct dismissal of the complaint, we might well have done so, as we could do even in the absence of such a request. See Metropolitan Water Co. v. Kaw Valley Drainage Dist., 223 U.S. 519, 523, 32 S.Ct. 246, 56 L.Ed. 533 (1912); Guardian Trust Co. v. Kansas City So. Ry. Co., 171 F. 43, 51 (8 Cir. 1909); Triumph Hosiery Mills, Inc. v. Triumph International Corp., 308 F.2d 196, 200 (2 Cir. 1962); Electronic Specialty Co. v. International Controls Corp., 409 F.2d 936, 952 (2 Cir. 1969). However, in light of counsel’s inadequate and intemperate brief, which dealt almost exclusively with the question whether plaintiff had a sufficient property interest to sustain a complaint and ignored the issues discussed in parts III and IV of this opinion,' we shall not do so. In contrast, we compliment counsel for Mrs. Lopez on her excellent and helpful brief, although we sustain her only in part.


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    AMERICAN BRANDS, INC., Plaintiff-Appellant, v. PLAYGIRL, INC., Defendant-Appellee.
    No. 1041, Docket 74-1357.
    United States Court of Appeals, Second Circuit.
    Argued May 1, 1974.
    Decided June 3, 1974.

      Daniel J. O’Neill, New York City (Chadbourne, Parke, Whiteside & Wolff, New York City, P. G. Pennoyer, Jr., New York City, of counsel), for plaintiff-appellant.
    Eric T. S. Chung, Los Angeles, Cal. (Kirschstein, Kirschstein, Ottinger & Frank, P. C., Peter T. Cobrin, New York City, on the brief), for defendantappellee.
    Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal by the plaintiff American Brands, Inc. (American) from an order of the United States District Court, Southern District of New York, Hon. Charles L. Brieant, Jr., entered March 8, 1974, denying American’s motion for a preliminary injunction seeking to enjoin the defendant, Playgirl, Inc. (Playgirl), from refusing to publish American’s advertisement on the back cover of its magazine and from accepting other advertisements for its back cover. Affirmed.

American, formerly known as the American Tobacco Company, is a New Tersey corporation which is basically a manufacturer and distributor of tobacco products. Playgirl is a California corporation which commenced the publication of Playgirl Magazine in May, 1973. The magazine, has a current circulation of about 2,000,000 copies, a rapid increase from its initial publication of about 600,000. Playgirl boasts that its publication is “Unconventional. Unprecedented. Unparalleled.”, and that it alone delivers the “young, affluent and malleable female audience for your advertising message.”

On February 13, 1974, American commenced an action against Playgirl in the Supreme Court, State of New York, County of New York, seeking a declaratory judgment as well as injunctive relief. The case was removed on February 27, 1974, to the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. §§ 1441 & 1446. On March 4, 1974, American obtained an order to show cause seeking a preliminary injunction. After oral argument before Judge Brieant on March 6, 1974, the injunction was denied. Judge Brieant found that the case presented “fair grounds for litigation. That is close to the question of probability of success.” He also held there was no showing of irreparable harm which would justify a mandatory injunction since money damages would be adequate. He determined that the equities tipped in favor of Playgirl and further indicated his willingness to provide the parties a speedy trial.

American claims that on January 26, 1973, Playgirl entered into a contract for the placement of American’s advertisements on the back cover of Playgirl Magazine. Playgirl had contracted with the Carl Vann Company to solicit orders for advertisements for the new magazine. Vann negotiated the contract at issue, which reserved eight back covers of Playgirl for the advertising of Tareyton cigarettes, manufactured by American. The contract, apparently a form agreement provided by American, had two clauses specifically typed in.

One, appearing on the back of the form, provided:

YOUR ACCEPTANCE BELOW OF THIS AGREEMENT SHALL ALSO SERVE TO ACKNOWLEDGE OUR UNDERTSANDING [SIC] THAT WE HAVE THE CONTINUING AND IRREVOCABLE RIGHT, AT OUR OPTION, TO BUY THE BACK COVER OF PLAYGIRL EACH AND EVERY TWELVE MONTH PERIOD, FOR EACH ISSUE OF PLAYGIRL WITHIN THAT PERIOD, FOR AS LONG A TIME AS PLAYGIRL SHALL CONTINUE TO BE PUBLISHED.

The contract also contained a clause which provided: “We reserve a cancellation privilege as to the use of this space.” That sentence was followed by a typed-in sentence which read: “WE HAVE THE RIGHT TO CANCEL THE SUBSEQUENT ISSUES WITHOUT PENALTY IF THE PREMIERE ISSUE IS UNSATISFACTORY TO US.” Playgirl published American’s advertisements on the back cover of each of its first 11 issues commencing in June, 1973, and further agreed to accept American’s advertisement for the last issue of the first publication year, May, 1974.

By letter dated September 25, 1973, Vann advised American that it was against the policy of Playgirl to afford an advertiser “a position of protection in perpetuity.” Playgirl repeated its position in a letter to American dated December 3, 1973, indicating that it had elected to diversify its back cover advertisers. By letter dated December 20, 1973, Playgirl stated that this policy would be effective with the June, 1974 issue.

The standard which governs the trial court in the determination of whether or not a preliminary injunction should issue is whether or not the moving party has carried the burden of clearly demonstrating a combination of either probable success on the merits and the possibility of irreparable damage, or the existence of serious questions going to the merits and the tipping of the balance of hardships sharply in its favor. Sonesta Int’l Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973); Pride v. Community School Bd., 482 F.2d 257, 264 (2d Cir. 1973).

The court below in denying injunctive relief placed its greatest emphasis on the failure of the plaintiff to establish that its injury was not compensable by an award of monetary damages. The court observed that Playgirl is not unique, that there are other magazines and other back pages, and it suggested that American’s damages should be limited to the difference, if any, between the rates paid at Playgirl and those payable elsewhere. Since every magazine reaches a slightly different audience, American suggests that it would be impossible to “cover” by finding a suitable replacement. A requirement that advertisers seek relief through money damages, American argues, would permit periodicals to dishonor long-term advertising contracts with impunity.

On appeal, American insists that back cover advertising space is not fungible, and that Playgirl alone and uniquely provides an advertising audience composed of young, malleable and affluent females. In proof of this proposition, American only provides us with the understandably exuberant puffing of Playgirl’s vice president, which touts the periodical as standing alone among magazines for women. To further justify the granting of an injunction, American states in its brief on appeal that Playgirl has suggested no basis upon which American might calculate its loss in monetary terms. Since monetary damages cannot be calculated, American argues, an injunction is required to avoid irreparable injury. See Interphoto Corp. v. Minolta Corp., 417 F.2d 621, 622 (2d Cir. 1969). However, the burden of establishing its right to relief here is clearly upon American (Robert W. Stark, Jr., Inc. v. New York Stock Exchange, 466 F.2d 743, 744 (2d Cir. 1972) (per curiam,)), and Playgirl does not have the initial obligation of establishing that monetary damages are an appropriate remedy. While we fail to share the confidence of the court below that American’s loss can be ultimately measured by the difference between advertising rates at Playgirl and those at some other comparable periodical, we do not find that American has, on the record before us, established that Playgirl is unique.

It would appear to be basic that American is obligated to mitigate its damages. If American can reasonably place its advertising on the back pages of other periodicals of comparable circulation, it would seem likely that its profits picture would be the same whether the tobacco consumers are malleable young ladies or more jaded aging males. If it had been shown that such advertising space is not readily available because of commitments to other national advertisers, American might well have established a case for equitable intervention, but the record before us is barren of any such proof. Again, American might have been able to demonstrate that Playgirl’s readership is distinctly advantageous to it and that it cannot be reached by other media. However, except for Playgirl’s own rodomontade, we have no documentation or proof that this is so. There is nothing in the record before us to indicate what segment of the populace is titillated by Playgirl and why in any event it is not susceptible to the lure of tobacco by American’s blandishment in other and more pedestrian periodicals. The record does not indicate whether American’s advertising was prepared particularly for Playgirl and its alleged audience of affluent malleables. The record contains no samples of American’s advertisements and no copy of Playgirl. This reticence is perhaps explainable because of the claim of the plaintiff that Playgirl is not a magazine which everyone may find acceptable. In sum, we conclude that, on the basis of the record before the court, the trial judge did not err in holding that American had failed to establish clearly that its damages cannot be calculated and that consequently it cannot be made whole by monetary relief.

American has' further failed to clearly establish that it will probably succeed on the merits. The trial court commented that it came close, but this is not enough absent a heavy tipping of the» equities in its favor. Pride v. Community School Bd., supra, 482 F.2d at 264.

At this stage of the proceeding, we need not definitively determine the merits of the contract claim or evaluate all of the weaknesses attributed to it by Playgirl. See Exxon Corp. v. City of New York, 480 F.2d 460, 464 (2d Cir. 1973); United States v. Brown, 331 F. 2d 362, 364-365 (10th Cir. 1964); American Federation of Musicians v. Stein, 213 F.2d 679, 683 (6th Cir.), cert. denied, 348 U.S. 873, 75 S.Ct. 108, 99 L.Ed. 687 (1954); Benson Hotel Corp. v. Woods, 168 F.2d 694, 696-697 (8th Cir. 1948). American’s brief claims that the only true issue raised by Playgirl was the question of the authority of Mr. Vann of the Carl Vann Company personally to bind it by contract. American asserts that Playgirl permitted him to describe himself as Advertising Director on its letterhead. The defendant counters that Vann was not an employee but rather an independent contractor, and he is so described in the contract entered into between Playgirl and Carl Vann Company. Whether his authority included the power to commit Playgirl’s back page to American in perpetuo is not clear. Whether Playgirl’s policy against such eternal vows of fidelity developed only after its success had been established, and whether such arrangements are unusual in the publishing business are issues to be determined upon trial. Likewise, the assertion by American that Playgirl in fact ratified the contract in any event by continuing to accept American’s advertisements, and the claim by Playgirl that it never even saw a copy of the agreement until the fall of 1973 are questions of fact which affect the merits and are not readily answerable at this stage of the litigation.

Playgirl, perhaps appropriately, claims that the arrangement was in any event nudum pactum since an absolute right to cancel was retained by American. Playgirl relies, inter alia, upon Miami Coca-Cola Bottling Co. v. Orange Crush Co., 296 F. 693 (5th Cir. 1924), which represents a line of authority received with something less than enthusiasm in this circuit in Sylvan Crest Sand & Gravel Co. v. United States, 150 F.2d 642, 644-645 (1945). Cf. Richard Bruce & Co. v. J. Simpson & Co., 40 Misc.2d 501, 243 N.Y.S.2d 503 (Sup.Ct.1963). See also J. Calamari & J. Perillo, Contracts § 70 (1970); 1A A. Corbin, Contracts § 163 (1963). American contends that its right of cancellation is not absolute but was limited to its dissatisfaction with the premiere issue. Whether the right to cancel survived, and whether other consideration to support the contract was given may again depend upon the custom and practice of the advertising and publishing business. The contract is in the form of a brief letter agreement contained on one page with but a single additional paragraph on the back. It provides few details and the interstices must be supplied by evidence of business practice not present in, the evidence before us. In short, we cannot say that the plaintiff has made a clear showing of probable success at this stage of the proceedings. The speedy trial which has been promised below provides the proper forum for determining these issues.

Finally, we note that American has failed to persuade us that, even short of probable success, it is nonetheless entitled to injunctive relief because the equities tip strongly in its favor. Dino DeLaurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373 (2d Cir. 1966). American urges that denial of the injunctive relief sought will irreparably injure its commercial good will. However, the case upon which it relies (Dino DeLaurentiis Cinematográfica, S. p.A., supra) is distinguishable. There, a new motion picture film process was to be utilized for the exhibition of a particular motion picture, “The Bible.” It was alleged that the contract bound the producer to exclusively utilize this process in the exhibition of the film. The loss of the opportunity to launch the heavily advertised new process with the particular motion picture provided in the contract was found by this court to create public confusion, with resultant loss of credibility and good will which were not monetarily compensable. Here, of course, the relationship between American and Playgirl was not monogamous. No trade or public identification of American with Playgirl has been established. Neither is there any claim that the marketing of some new tobacco product has been frustrated by the unavailability of Playgirl’s back page. On the other hand, forcing Playgirl to leave the back page blank or accepting American’s material rather than that of other advertisers, who have presumably entered into arrangements with Playgirl, would obviously force losses and litigation upon the publisher.

While other issues have been raised, they need not be considered. The judgment of the court below is affirmed.


author: BREITENSTEIN, Circuit Judge.

text:
    Robert PALMER, a minor, By and Through his Next Friend, Ruby E. Palmer, and Ruby E. Palmer, Individually, as heirs at law of Robert J. Palmer, Deceased, and Ruby E. Palmer, as Administratrix of the Estate of Robert J. Palmer, Deceased, Plaintiffs-Appellees, v. FORD MOTOR COMPANY, Defendant-Appellant.
    No. 73-1653.
    United States Court of Appeals, Tenth Circuit.
    Argued March 22, 1974.
    Decided June 24, 1974.

      Payne H. Ratner, Jr., Wichita, Kan. (Murvyl M. Sullinger, Pittsburgh, Kan., and Ratner, Mattox, Ratner, Ratner & Barnes, Wichita, Kan., were with him on the brief), for plaintiffs-appellees.
    Don B. Roberson, Kansas City, Mo. (Richard W. Noble and Shughart, Thomson & Kilroy, Kansas City, Mo., of counsel, were with him on the brief), for defendant-appellant.
    Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

This is a products liability case with diversity jurisdiction. Plaintiffs’ claim rests on negligence and breach of implied warranties of merchantability and fitness. The jury verdict was in favor of the plaintiffs. The defendant’s appeal contends that the district court erred in denying its motions for a 12-man jury and for a directed verdict. We affirm.

A business enterprise owned and operated by plaintiffs’ decedent bought in 1968 a new Ford truck manufactured by defendant. Beginning soon after the purchase and continuing until shortly before the fatal accident, decedent and other drivers of the truck complained of severe steering problems. Numerous complaints were made to the local dealer who sold the truck. In August, 1969, decedent was in a one-vehicle accident caused by steering troubles. After-wards the problems persisted despite attempts by the dealer to correct them. On October 15, 1970, decedent had another one-vehicle accident with the truck in Kansas and his death resulted. Defendant manufacturer does not challenge the sufficiency of the evidence to sustain the verdict and does not claim any error in the jury instructions. Its argument is that decedent was aware of the steering defect and unreasonably encountered a known danger. This conduct is said to prevent recovery as a matter of law, and to entitle defendant to a directed verdict.

The applicable substantive law of Kansas is controlling in this diversity suit. In that state unreasonable use of a product after awareness of danger is a defense both to a claim of negligence and a claim of breach of implied warranties. Bereman v. Burdolski, 204 Kan. 162, 460 P.2d 567, 573. The controlling factor is causation. Ibid. The labelling of the defense as contributory negligence or as assumption of risk is not determinative. Ibid. The question of causation, as a matter of either defense or of burden of proof, is one for resolution by the jury in the absence of conclusive proof that makes only one result possible. Webster v. Kansas Power & Light Company, 182 Kan. 626, 323 P.2d 643, 645; see also Kirsch v. Dondlinger & Sons Construction Company, 206 Kan. 701, 482 P.2d 10, 13, 15; and Abston v. Medora Grain, Inc., 206 Kan. 727, 482 P.2d 692, 698.

In a diversity case, the sufficiency of the evidence to take the case to the jury is a question of federal law. Kiner v. Northcutt, 10 Cir., 424 F.2d 222, 223. Under federal law “a verdict may not be directed unless the evidence points all one way and is susceptible of no reasonable inferences which sustain the position of the party against whom the motion is made.” Christopherson v. Humphrey, 10 Cir., 366 F.2d 323, 326; see also Sutton v. Anderson, Clayton & Company, 10 Cir., 448 F.2d 293, 295. In the ease at bar, the evidence was such that reasonable men might well differ on the question of whether decedent’s awareness of the steering defect and his continued use of the truck was the proximate cause of the accident. Accordingly, the issue is not a question of law but rather a question of fact for jury determination. The motion for directed verdict was properly denied.

The district court rejected defendant’s request for a 12-man jury, and the trial proceeded before a, jury of six. Defendant argues that this action deprived it of a substantive right to which it was entitled under Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and the Kansas constitution.

The bill of rights of the Kansas constitution provides in its § 5 that: “The right of trial by jury shall be inviolate.” Section 60-238 of the Kansas Rules of Civil Procedure restates this principle but permits waiver of jury trial. Section 60-239 provides that in specified circumstances the parties or the court may permit the case to proceed without a jury. Section 60-248(a) provides that the parties may stipulate for a jury of less than 12. The Rules of Civil Procedure were enacted by the Kansas legislature.

The Kansas Supreme Court originally held, in a felony prosecution, that the state’s constitution compelled a 12-man jury as a matter of substantive public policy which a defendant could not waive. State v. Simons, 61 Kan. 752, 60 P. 1052; see also State v. Wells, 69 Kan. 792, 77 P. 547. Later the court held that a felony defendant could waive his right to a jury of 12. State v. Scott, 156 Kan. 11, 131 P.2d 664, 666-668. Therein the court said that a jury trial was for a defendant’s protection rather than a part of the judicial institution, and that because a defendant can waive a jury trial altogether, he can agree to a trial by a jury of less than 12. Ibid.

In Bourne v. Atchison, Topeka and Santa Fe Railway Company, 209 Kan. 511, 497 P.2d 110, defendant requested a 12-man jury in a civil case and the trial court denied the request on the basis of a local court rule. The state supreme court noted that no state constitutional or statutory provision compelled a certain size for civil juries. The court said that, although the right to a jury trial was a substantial personal right, the legislature was free to regulate jury size and had done so in § 60-248(a). 497 P.2d at 114. The court did not overthrow the local rule, but said that the trial court acted improperly in compelling the use of a 6-man jury in the absence of a stipulation to that effect. 497 P.2d at 116. The mentioned decisions convince us that in Kansas the right to a 12-man jury is not a matter of substantive law but is subject to regulation by the legislature, the local courts, and the parties to the specific case.

The Kansas decisions are in line with federal decisions which treat jury size as less than substantive. In Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 26 L.Ed.2d 446, the Supreme Court held that a felony defendant’s Sixth Amendment rights, as applied to the states through the Fourteenth Amendment, were not violated by a Florida law providing for a 6-man, rather than a 12-man, jury. Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522, upheld a local federal court rule that a jury for the trial of civil cases shall consist of six. The Court said that a jury of six satisfies the Seventh Amendment’s guarantee of a trial by jury in civil cases, 413 U.S. at 160, 93 S.Ct. 2448, and that Rule 48, F.R.Civ.P., did not prevent local court rules providing for civil juries of reduced size. 413 U.S. at 164, 93 S.Ct. 2448. Local Rule 17A of the United States District Court for the District of Kansas provides for 6-man juries in civil cases.

We conclude that the right to a 12-man jury is not a matter of substantive law. However, Colgrove v. Battin, supra, is not dispositive of our question because that decision did not involve a situation wherein a state supreme court had interpreted the constitution, statutes, and rules of that state as proscribing a civil jury of less than 12 members in the absence of a stipulation to that effect. See 497 P.2d at 116. Our conclusion that the right is not substantive does not dispose of the issue because consideration must be given to the principles announced in Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. In applying Erie the Supreme Court has declined to be governed by abstractions regarding substance and procedure, Guaranty Trust Co. v. York, 326 U.S. 99, 108-109, 65 S.Ct. 1464, 89 L.Ed. 2079, and has said that “[t]he line between ‘substance’ and ‘procedure’ shifts as the legal context changes.” Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8. The Erie issue requires consideration of several factors.

The first is whether the state rule is so “bound up” with the state created rights and obligations in question that application of the rule is required in federal courts. Byrd v. Blue Ridge Electric Cooperative, Inc., 356 U.S. 525, 535, 78 S.Ct. 893, 2 L.Ed.2d 953; see also Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed. 1520, and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 555-556, 69 S.Ct. 1221, 93 L.Ed. 1528. The Kansas rule on jury size is not an integral part of the state created rights at issue here. Unlike Ragan, 337 U.S. 530, 69 S.Ct. 1233, where the state rule in question actually determined the existence of a state cause of action, and Cohen, 337 U.S. 541, 69 S.Ct. 1221, where there was a close connection between the state rule and the state cause of action, the Kansas rule on jury size affects only the means or manner of recovery. The Kansas Supreme Court has said that no constitutional or statutory provision compels a certain size for civil juries. Bourne, 497 P.2d at 112.

Next is the question of whether disregard of the state rule will “substantially affect the enforcement of the right as given by the State.” York, 326 U.S. at 108-109, 65 S.Ct. at 1470. The outcome of the litigation will not be substantially different when the jury has six, rather than 12, members. Colgrove v. Battin, 413 U.S. at 157, 93 S.Ct. 2448, and Williams v. Florida, 399 U.S. at 100-101, 90 S.Ct. 1893.

Another factor is whether the state rule infringes on an essential characteristic or function of the federal system. Byrd, 356 U.S. at 537-539, 78 S.Ct. 893. The Seventh Amendment is an essential part of the federal system. The Supreme Court has held that juries of less than 12 may be used in civil cases without violating that amendment. Colgrove, 413 U.S. at 160, 93 S.Ct. 2448. Application of the Kansas rule to require a jury of 12 would infringe on the functions and characteristics of the federal system. It is of no import whether the state rule derives from statute, Byrd, 356 U.S. 525, 78 S.Ct. 893, or from a state constitutional provision, Herron v. Southern Pacific Company, 283 U.S. 91, 94, 51 S.Ct. 383, 75 L.Ed. 857.

We come then to the question of whether the Erie policies would be frustrated by disregard of the state rule. Hanna v. Plumer says that the twin aims of Erie were “discouragement of forum-shopping and avoidance of inequitable administration of the laws.” 380 U.S. at 468, 85 S.Ct. at 1142. Colgrove points out, 413 U.S. at 159-160, 93 S.Ct. at 2454 n. 15, that commentators differ on the effect of 6-man juries. In Colgrove, 413 U.S. at 157, 93 S.Ct. at 2453, the Court said that nothing had been suggested to change the holding in Williams, 399 U.S. at 100-101, 90 S.Ct. at 1906, which rejected the notion that “reliability of the jury as a factfinder * * * [is] a function of its size.” Accordingly, forum-shopping and inequitable administration of the laws will not result from nonenforcement of the state rule. Indeed, the effect at the most is “nonsubstantial,” and not determinative. Hanna, 380 U.S. at 468-469, 85 S.Ct. 1136.

Finally, there is the question of whether one of the Federal Rules of Civil Procedure controls the situation. If so, federal district courts cannot disregard the federal rules. Hanna v. Plumer, 380 U.S. at 471, 85 S.Ct. 1136. Rule 48, F.R.Civ.P., provides that “[t]he parties may stipulate that the jury shall consist of any number less than twelve * * Quoting from Cooley v. Strickland Transportation Co., 5 Cir., 459 F.2d 779, 784, cert. denied 413 U.S. 923, 93 S.Ct. 3069, 37 L.Ed.2d 1045, the Court said in Colgrove that Rule 48 “ ‘does not purport to prevent court rules which provide for civil juries of reduced size.’ ” 413 U.S. at 164, 93 S.Ct. at 2457. The local rule of the federal district court in Kansas provides for civil juries of six. In our opinion the district court properly applied its own rule.

Affirmed.


author: PER CURIAM.

text:
    Marvin A. YAWITZ, Appellant, v. Caspar W. WEINBERGER, Appellee.
    No. 74-1024.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1974.
    Decided June 11, 1974.
    Michael A. Gross, St. Louis, Mo., for appellant.
    Jean C. Hamilton, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This is a suit under 42 U.S.C. § 405(g) for disability benefits alleged to be due Marvin A. Yawitz under sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. The claim was refused by the Social Security Administration and after Yawitz had exhausted all of his administrative remedies, including a hearing before an administrative law judge and an adverse decision from the Appeals Council, he brought this action in district court against the Secretary of Health, Education and Welfare. Both Yawitz and the Secretary moved for summary judgment, and after a referral to a magistrate for recommendations, the district court granted summary judgment to the Secretary. We reverse and remand with directions to enter judgment for Yawitz.

Yawitz claims that he suffers from severe migraine headaches which cause him such pain that he is not able to concentrate or engage in an occupation. The administrative law judge, whose findings were adopted by the Appeals Council, found that Yawitz was not suffering from a disability as that word is defined in section 223(d) of the Act, 42 U.S.C. § 423(d). Yawitz challenges this finding; and the issue, therefore, ultimately, is whether or not Yawitz has a disability as defined by the statute.

In his findings the administrative law judge found that Yawitz did suffer from migraine headaches which are partially disabling. However, he also found that Yawitz “was capable and is capable of engaging in substantial gainful activity .. ” Therefore, the claimant does not meet the statutory requirement that he be incapable of such activity and he does not fall within the statutory definition of “disability.”

The fact findings made by the administrative law judge must be sustained by this Court if they are supported by substantial evidence based on the record as a whole. Social Security Act § 205(g), 42 U.S.C. § 405(g); Brasher v. Celebrezze, 340 F.2d 413, 414 (8th Cir. 1965). However, as was stated by the Ninth Circuit in Ainsworth v. Finch, 437 F.2d 446, 447 (9th Cir. 1971):

While we are not to try the claim de novo, “[t]his does not mean that it was intended that the courts should abdicate their conventional judicial function to review,” McMullen v. Celebrezze, 335 F.2d 811, 814 n. 4 (9th Cir. 1964). We cannot escape our duty “to scrutinize the record as a whole to determine whether the conclusions reached have a reasonable basis in law.” Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968).

See also Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Celebrezze v. Bolas, 316 F.2d 498, 501 (8th Cir. 1963).

As we review the record in this case, then, we must keep in mind that the Supreme Court has defined “substantial evidence” as used in the Social Security Act to be “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting from Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

After a careful study of the record herein we are unable to find such substantial evidence as will support the Secretary’s decision. The relevant evidence adduced at the hearing of December 21, 1972, and from various exhibits introduced therein reveals the following facts:

Marvin Yawitz was born in 1914. He attended college, majoring in business administration and completed about one and one-half years. He was gainfully employed in various jobs from 1932 until 1970 when he claims that he became disabled. Most of his jobs have been in the retail sales field, and he has also had experience in office management and stock management positions. From 1953 to 1960 he owned and operated a hardware store. He appears to have been successful monetarily, earning between $12,000 and $24,000 per year. His average annual income has been around $18,000. He is married and lives with his wife who is not engaged in any outside employment. They have two married daughters.

Yawitz has complained of headaches since at least 1940. It would appear, however, that in the past ten or fifteen years the complaints have become more frequent. In spite of this, he continued to work, although he has worked for several employers since 1960. He claims that in every case his inability to function due to headaches has resulted in the termination of his employment. Apparently most of his jobs were provided by family or close personal friends who eventually decided that he was too unproductive when his headaches struck.

The headaches themselves are very painful to Yawitz. He says his head hurts all the time to some extent, but that really severe headaches hit as often as twice a week; although he sometimes goes for up to twelve days without the severe kind. He has found that all he can do when a headache comes on is to rest in a dark, quiet room. These attacks can last for three or four days.

Yawitz «claims that these severe headaches affect his work in that when he gets one he cannot stay on the job and perform properly. He frequently cannot get to work until late and must leave early. He thus simply cannot function in a structured work situation.

In spite of the headaches, however, Yawitz drives a car, has gone on camping trips across country in a van-type camper, and in 1972 drove a large school bus from Chicago to St. Louis. Frequently, however, Yawitz and his wife covered very little distance in a day and he tended to drive short stretches at a time. Additionally, Yawitz does considerable handiwork around his house. He has fixed up his basement and is converting the school bus into a camper himself. Yawitz insists, however, that this work is therapy and that he works slowly and only when his headache situation will allow.

The medical testimony and evidence all tended to support Yawitz. Dr. Lewis E. Littmann has been Yawitz’ personal physician since 1940. He testified to the effect that the headaches were real even though it was hard to find any objective signs that Yawitz was having one except for perspiration and slightly increased blood pressure. Yawitz has undergone every kind of test to determine what may be causing the headaches. All these tests have had negative results. No medication has worked consistently to relieve the pain. Dr. Littmann maintained that no one really knows what causes tension headaches of this kind, although he could and did describe the physiological occurrences which take place in the blood vessels in the head which result in the pain that is felt. The gist of Dr. Littmann’s testimony was to the effect that Yawitz’ headaches were apparently getting more frequent and more severe; that their onset was unpredictable; and that when one struck it made any work Yawitz was doing erratic.

There is also correspondence from three other doctors in the record. One letter, dated September 25, 1951, is from a Dr. George L. Hawkins, Jr. His conclusion after examining Yawitz was that he “has tension headaches and a psycho-neurotic personality.” Another letter is from Dr. G. R. Diessner of the Mayo Clinic and is-dated December 16, 1963. Dr. Diessner reports that after a complete examination of Yawitz “a diagnosis of tension headaches was again made. Mr. Yawitz admits to a great deal of tension, some depression, and frustration.”

Dr. Joseph S. Shuman, a neuropsychiatrist, examined Yawitz on October 1, 1971, on behalf of the Social Security Administration. His report confirms that Yawitz suffers from “intractable headaches” which “are inconsistent, but also unpredictable.” The diagnosis is that he has a “Chronic Anxiety Reaction with depressive features.” The prognosis is said to be “not good in the light of the long history and poor response to treatment.” A review of all the medical evidence clearly shows that Yawitz often suffers from extremely severe headaches but that he is otherwise healthy for his age.

■Mr. Samuel Bernstein, a vocational expert with a master of education degree in the field of guidance also testified at the hearing for the Social Security Administration. Mr. Bernstein responded to a number of hypotheticals regarding what type of work Yawitz could engage in in spite of his headaches, including a question which assumed the claimant’s age, experience, education and migraine headaches. Mr. Bernstein stated that if Yawitz could communicate during one of these headache attacks he could function properly in an unstructured outside sales position such as an insurance salesman. The expert said that Yawitz could make premium sales, could sell merchandise, could sell textiles and could sell auto parts due to past work experience. He stated that there were numerous jobs of these types in the particular area. The major thrust of the expert’s testimony in this regard was that in these types of sales positions Yawitz could be more or less his own boss and could make appointments when he felt up to it. However, under questioning from the claimant’s attorney, he admitted that if Yawitz could frequently not keep appointments, it would interfere with employment.

The legal standards to be applied to this type of appeal were originally carefully set out in Celebrezze v. Bolas, supra, 316 F.2d at 500-501. They have since been followed by this Court and have recently been stated in Garrett v. Richardson, 471 F.2d 598, 599-600 (8th Cir. 1972). Those standards are:

(a) the claimant has the burden of establishing his claim; ' (b) the Act is remedial and is to be construed liberally; (c) the Secretary’s findings and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence; (d) substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (e) it must be based on the record as a whole; (f) the determination of the presence of substantial evidence is to be made on a case-to-case basis; (g) where the evidence is conflicting it is for the Appeals Council on behalf of the Secretary to resolve those conflicts; (h) the statutory definition of disability imposes a three-fold requirement (1) that there be a medically determinable physical or mental impairment which can be expected to [result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months], (2) that there be an inability to engage in any substantial gainful activity, and (3) that the inability be by reason of the impairment; (i) such substantial gainful activity is that which is both substantial and gainful and within the claimant’s capability, realistically judged by his education, training, and experience; (j) the emphasis is on the particular claimant’s capabilities and on what is reasonably possible, not on what is conceivable; and (k) it is not the duty or the burden of the Secretary to find a specific employer and job for the claimant but, instead, some effort and some ingenuity within the range of the claimant’s capacity remains for him to exercise. (Footnote omitted.)

Of special significance to this case is the test set forth above regarding the three-fold requirement for a determination of disability: (1) a medically determinable physical or mental impairment which has or will last at least twelve months, (2) inability to engage in any substantial gainful activity, and (3) the inability must be by reason of the impairment.

In the instant case there is no doubt that Yawitz has a medically determinable physical or mental impairment. The testimony of his personal physician and written reports from three other doctors firmly establish this. He has severe migraine headaches and will continue to have them probably as long as he lives.

It is equally clear that if Yawitz cannot engage in substantial gainful activity, it is because of the headaches. There is simply no evidence of any other reason, and the parties agree that if he cannot work, it is due to the headaches.

The real crux of the matter, then, is whether or not Yawitz has an “inability to engage in any substantial gainful activity.” In finding that Yawitz did not have such an inability the administrative law judge relied on two lines of reasoning. First, he emphasized the evidence that Yawitz can and does drive, that he has gone on cross-country camping trips and that he does some fix-up and repair work around his home. From this the conclusion is drawn that Yawitz was able-bodied enough to engage in substantial gainful activity.

It should first be noted that “the mere fact that plaintiff can drive a car and is mobile does not establish that he can engage in substantial gainful activity.” Robinson v. Richardson, 360 F.Supp. 243, 250 (E.D.N.Y.1973). Additionally, the problem with the administrative law judge’s analysis is that it totally ignores all the evidence concerning the limited amount of driving that Yawitz does; that frequently Yawitz and his wife did not travel at all on any given day or only a short distance because of his headaches; that Yawitz worked around the house only when he was physically able to; that frequently he was not able to do anything; that his conversion of the school bus to a camper was taking much longer than would normally be expected because he felt physically able to work on it only sporadically. In short, when the record as a whole is examined it can be seen that the fact that Yawitz drives, goes camping and works around the house on occasion is not substantial evidence that he can engage in substantial gainful activity. The entire record reveals many limitations on the claimant’s activities totally ignored by the administrative law judge in making his decision.

[I] f . . . reliance has been placed upon one portion of the record to the disregard of overwhelming evidence to the contrary, the courts are . bound to decide against the Secretary.

Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).

The administrative law judge in his written decision also relied heavily on the fact that Yawitz had been employed and earned a good income for at least thirty years, during which time he had complained of and been bothered by his migraine headaches. Again, however, when the entire record is reviewed it can be seen that this is not substantial evidence of Yawitz’ ability to engage in gainful activity at the present time. First, reliance on this fact ignores the evidence that Yawitz generally worked for relatives or close friends or himself. It ignores the evidence that he has quit or has been removed from over eight positions between 1932 and 1969, and that in every case it was because he could not produce reliably due to his headaches. More importantly, it ignores the uncontroverted evidence that the headaches have been increasing in frequency and severity. Certainly a condition which was tolerable at one time can deteriorate to the point that it becomes intolerable. This is not like the case relied on by the Secretary, Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965); for in that case there was no evidence that the headaches experienced by the claimant were greater in intensity or severity at the time of the hearing than at the time he was gainfully employed. In short, we are not convinced that the fact that Yawitz has worked in the past and earned a good living is substantial evidence to support a finding that he is now capable of substantial gainful activity in light of the other evidence in the record regarding his present inability to perform adequately on the job due to the increase in headache activity.

Although not expressed in so many words, the final line of reasoning used by the administrative law judge to support his conclusion seems to be based on the testimony of the vocational expert. As noted earlier in this opinion, this expert stated his opinion that there were certain types of outside sales jobs for which Yawitz would be qualified assuming that he could communicate during a headache attack. The judge then combined this opinion testimony with his own observations of Yawitz during the hearing and with Dr. Shuman’s observations during his examination of the claimant to conclude that Yawitz can communicate during these attacks, and, therefore, can hold down an outside salesman’s position.

While we respect the opinion of the vocational expert, we simply cannot agree that this, by itself, provides substantial evidence from which to conclude that Yawitz is capable of engaging in substantial gainful activity in view of the overwhelming evidence to the contrary in the record.

The appellant Yawitz met the burden of proof in the hearing before the administrative law judge and established that he is disabled within the meaning of the Social Security Act. There is no substantial evidence on the record as a whole to support the Secretary’s denial of disability benefits. We, therefore, reverse the judgment of the district court and remand this case with directions to grant summary judgment for the plaintiff.

      . Section 223(d) of the Act, 42 U.S.C. § 423(d), provides:
      (d) (1) The term “disability” means—
      (A) inability 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 which has lasted or can be expected to last for a continuous period of not less than 12 months ;
      (2) For purposes of paragraph (1) (A) — ■ (A) an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do bis previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.