author: FIELD, Circuit Judge: WINTER, Circuit Judge

text:
    Charles L. MEDLEY, an infant, by Gracie Medley Hairston et al., Appellants, v. The SCHOOL BOARD OF the CITY OF DANVILLE, VIRGINIA, et al., Appellees. Charles L. MEDLEY, an infant, by Gracie Medley Hairston et al., Appellees, v. The SCHOOL BOARD OF the CITY OF DANVILLE, VIRGINIA, et al., Appellants.
    Nos. 72-2373, 72-2374.
    United States Court of Appeals, Fourth Circuit.
    Argued March 5, 1973.
    Decided Aug. 3, 1973.
    S. W. Tucker, Richmond Va. (Henry L. Marsh, III, Hill, Tucker & Marsh, J. L. Williams, Danville, Va., Charles M. L. Mangum, Lynchburg, Va., Jack Green-berg, James M. Nabrit, III, and Norman J. Chachkin, New York City, on brief), for appellants in No. 72-2373 and for appellees in No. 72-2374.
    G. Kenneth Miller, Richmond, Va. (May, Garrett, Miller & Parsons, Richmond, Va., Earle Garrett, Jr., Earle Garrett, III, and Garrett, Garrett & Smith, Danville, Va., on brief), for ap-pellees in No. 72-2373 and for appellants in No. 72-2374.
    Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL and FIELD, Circuit Judges, sitting en banc.
   FIELD, Circuit Judge:

This action was instituted following a direction from the Department of Health, Education and Welfare [HEW] to the Danville Virginia School Board that it review its policy of pupil assignment in the light of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In the absence of a definitive proposal by the school board for 1972-73 the District Court for the Western District of Virginia, 350 F.Supp. 34, devised a plan of desegregation which reflected to a large degree the geographical setting of the City which is divided by the Dan River into areas lying north and south thereof.

The plaintiffs who represent black school children seek to alter or amend the judgment of the District Court, specifically requesting that the Court require the school board to propose a plan which will produce a unitary system or, in the alternative, authorize the plaintiffs to employ a consultant at school board expense to prepare such a plan. In its cross-appeal the school board asserts that there was insufficient evidence to support a finding that it had failed to dismantle its previously segregated system. We find the position of the school board to be untenable and remand for further proceedings.

The history of the Danville school system supports the finding of the District Court that a further dismantling thereof was required. Although the school board stated in 1964 that six of the seventeen schools were integrated, the record indicates that as of that date only twenty-one blacks had transferred to formerly all-white schools, and that the schools in Danville were virtually all-black or all-white. In its May 18, 1965, Statement of Policies and Plan for Compliance with Title VI of the Civil Rights Act of 1964, the school board adopted a freedom of choice plan which was similar to that delineated by the Fifth Circuit in United States v. Jefferson County Board of Education, 372 F.2d 836, 897 (5 Cir. 1966).

Thereafter, in 1969, the school board geographically zoned five elementary schools and expanded faculty integration. Under this plan which met with the approval of HEW thirteen of eighteen schools were integrated with seventeen per cent of the black student population attending integrated schools. The following year, 1970-71, the school board adopted a plan which had as its stated objective that no student would attend an all-black or all-white school. This plan created one high school to be attended by all students in Danville, one junior high school for students living on the north side of the Dan River and two geographically zoned junior high schools on the south side. Elementary schools which had not been zoned in the previous year were either zoned or paired and one all-black elementary school was closed. Under the 1970-71 plan four of the elementary schools had a black enrollment of eight per cent or less. On the other hand, four south side elementary schools had black enrollments ranging from seventy-four per cent to eighty per cent.

The 1970-71 plan was also approved by HEW but, as heretofore stated, in July 1971 the Department advised the school board to review its policy pursuant to Swann, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. The school board responded by rezoning the attendance area of one elementary school and HEW refused to approve the plan with only this one alteration. It appears that the school board has obtained no further suggestions or directives from HEW.

The plan which was devised by the District Court without the benefit of substantial guidelines from either the school board or the plaintiffs redrew school attendance zones for grades one through four; ordered busing for students on the respective sides of Dan River to two fifth and sixth grade een-' ters; and changed the feeder schools for the three junior high schools. Aside from the high school, the District Court’s plan did not provide for any attendance zone which embraced students living on both sides of the river. The District Court appears to have concluded that such attendance zones would be impracticable since they would require the students to travel in a highly congested and hazardous corridor created by the river and highway during a time of prime usage by mills and other businesses. Incident to this conclusion it should be noted that the school board does not own or operate a busing system.

Under the Court’s plan no child in Danville will attend a school located on the side of the river opposite his home until he enters the high school in the tenth grade. As a result forty-two per cent (734) of the city’s 1754 black elementary school children will be enrolled in two schools with black enrollments of eighty-nine per cent and ninety-one per cent, respectively. Additionally, eleven per cent (210) of the black elementary school population will attend five schools with black enrollments of fourteen per cent or less. Counsel for the school board suggest that the plaintiffs’ reliance upon the foregoing statistics in their challenge of the plan is, in effect, an insistence that each school should mirror the racial composition of the entire system.

On the record in this case we do not find this characterization of the plaintiffs’ position to be a valid one. While the Supreme Court stated in Swann that “[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole,” 402 U.S. at 24, 91 S.Ct. at 1280 the Court made the further observation that

“Where the school authority’s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.” 402 U.S. at 26, 91 S.Ct. at 1281.

Reacting to Swann, this court in Adams v. School District Number 5, Orangeburg Co., S.C., 5 Cir., 444 F.2d 99, 101, noted:

“Wherever schools are ‘all or predominately of one race in a district of mixed population [there will be required] close scrutiny to determine that school assignments are not part of state-enforced segregation.’ Swann, supra, at 25 [of 402 U.S., 91 S.Ct. 1267] .... Although the existence of ‘some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system which still practices segregation by law,’ Swann, supra, at 26, 91 S.Ct. at 1281 ., both the school authority and the district judge must nevertheless be concerned with the elimination of one-race schools.”

In the light of the history of state-enforced segregation in the Dan-ville schools, the marked residual disparity in the racial balance of the schools under the plan of the District Court strongly suggests that the plan is ineffective to attain an acceptable degree of realistic desegregation.

The nub of the problem in the Danville system is, of course, the Dan River just as Interstate 65 was the divisive factor confronting the Court in Davis v. School Comm’rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971). There, the interstate highway divided the metropolitan area of Mobile into definitive eastern and western sections. The schools in the eastern section were sixty-five per cent black and thirty-five per cent white while the western section had an enrollment which was twelve per cent black and eighty-eight per cent white. The elementary school plan approved by the Court of Appeals did not provide for any combination of the schools on the eastern side with the predominately white schools of the western section with the result that sixty-four per cent of all of the black elementary children attended nine schools on the east side which were more than ninety per cent black. In remanding the case for the development of a decree “that promises realistically to work, and promises realistically to work now,” the Court stated:

“Like the District Court’s plan, the Court of Appeals’ plan was based on treating the western section in isolation from the eastern. There were unified geographic zones, and no transportation of students for purposes of desegregation. * * * Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncon-tiguous attendance zones. See Swann, supra, at 22-31 [of 402 U.S., 91 S.Ct. 1267]. The measure of any desegregation plan is its effectiveness.
“On the record before us, it is clear that the Court of Appeals felt constrained to treat the eastern part of metropolitan Mobile in isolation from the rest of the school system, and that inadequate consideration was given to the possible use of bus transportation and split zoning.” 402 U.S. 33 at 36, 37, 38, 91 S.Ct. 1289, 1291, 1292, 28 L.Ed.2d 577.

The situation in Danville is strikingly parallel to Davis. There are seven elementary schools on the north side of the river with a student population which is eighty-seven per cent white and thirteen per cent black. There are also seven elementary schools on the south side of the river with an enrollment which is fifty-four per cent white and forty-six per cent black. The over-all population of elementary students in the system is sixty-nine per cent white and thirty-one per cent black. In the light of these statistics we are of the opinion that the District Court fell into the same error as the lower court in Davis in formulating a plan which treated the two sections of the city in isolation one from the other and which resulted in a number of schools which are racially identifiable when measured by any reasonable gauge. It appears that the District Court recognized this fact when he stated in his opinion that under the plan the fifth and sixth grades as well as the junior high schools would “reflect the black-white ratios of students on each side of the river.”

It is clear that the District Court felt that the circumstances prevailing in Danville warranted the retention of neighborhood elementary schools on each side of the river. In Thompson v. School Board of City of Newport News, Va., 465 F.2d 83 (4 Cir. 1972), we recognized that under proper circumstances the assignment of the primary grades to neighborhood schools is not per se unacceptable, but we emphasized that such assignments must rest upon specific findings which demonstrate that no other plan affording greater integration is practicable. The record in the present case reveals no problem with respect to either the time or distance of travel incident to the utilization of non-contiguous attendance zones embracing elementary students on both sides of the river. Illustrative of this fact, the record indicates that the distance between Woodberry Hills Elementary School on the north side and Westmore-land and Berkeley schools on the south is a minimal one mile, and three of the city’s five bridges lie within these attendance zones. Under the Court’s plan, however, Woodberry Hills would have a student population that is eighty-eight per cent white while Berkeley and West-moreland would have black enrollments of eighty-nine and ninety-one per cent, respectively.

It would seem that the primary emphasis of the District Court’s conclusion of impracticability rests upon the assumption that the elementary children would be required to walk across the bridges which concededly are inadequate for pedestrian traffic. We think that in reaching this conclusion the District Court failed to fully consider and develop the possibility of transportation for these children. Again adverting to Davis, we feel that the Court failed to give appropriate consideration to the “possible use of bus transportation and split zoning” to solve the geographical problem which confronted it. The school board’s present lack of transportation facilities is not controlling. If reassignment is constitutionally mandated the district court’s equity power includes the authority to require transportation when it is necessary to disestablish a dual school system. See Brewer v. School Board of City of Norfolk, Virginia, 456 F.2d 943, 947 (4 Cir. 1972).

Following the Swann and Davis decisions, in Adams we remanded several cases to the respective district courts with the admonition that “[t]he school authorities and the district court should consider the use of all techniques for desegregation, including pairing or grouping of schools, noncontiguous attendance zones, restructuring of grade levels, and the transportation of pupils.” 444 F.2d at 101. Our review of the record indicates that similar action is appropriate in the present case. To that end, we remand the case to the District Court with the following instructions: (1) The school board shall submit to the District Court a plan for the elementary and junior high schools which will effectuate the mandates of Swann and Davis, giving full consideration to the techniques set forth in Adams; (2) the District Court may direct the school board to consider the services of an expert or the office of HEW to assist it in drafting an acceptable plan; (3) the District Court shall conduct a hearing to determine the effectiveness of the proposed plan and may hear objections or proposed amendments prior to his approval thereof; (4) if the District Court should find that the plan of the school board does not fully implement Swann and Davis, he may use a consultant to develop a plan and assess the consultant’s reasonable fee against the school board.

The plaintiffs have requested attorneys’ fees and upon the remand the District Court shall make a reasonable allowance for such fees pursuant to Section 718 of the Emergency School Aid Act of 1972 for services rendered herein subsequent to June 30, 1972. Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973); Scott v. Winston-Salem/Forsyth County Board of Education, 475 F.2d 1400 (4 Cir. 1973); Shepard v. Fayetteville City Board of Education, 475 F.2d 1400 (4 Cir. 1973).

Remanded with directions.

WINTER, Circuit Judge

(concurring and dissenting):

I concur in the judgment and opinion of the court except with respect to the allowance of counsel fees. I adhere to the view I expressed in Bradley v. Richmond School Board, 472 F.2d 318 (4 Cir. 1972), cert. granted, 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973), and I would direct an allowance for all services rendered since July 30, 1971, the date on which the current phase of the litigation was begun.

      . Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).


source: Caselaw Access Project

author: SETH, Circuit Judge.

license: Public Domain

text:
    Velma Rose BIGHEART, surviving- spouse of William Bigheart, Jr., Deceased, Un-allotted Osage Indian, Appellant, v. John PAPPAN, Superintendent of the Osage Indian Agency, et al., Appellees, Pearl Hall et al., Intervenor-Appellees.
    No. 72-1718.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 10, 1973.
    Decided Aug. 14, 1973.
    Rehearing Denied Sept. 21, 1973.
    Shockley T. Shoemake, of Shoemake & Briggs, Pawhuska, Okl., for appellant.
    Terrence L. O’Brien, Atty., Dept, of Justice (Wallace H. Johnson, Asst. Atty. Gen., Nathan G. Graham, U. S. Atty., Robert F. Santee, Asst. U. S. Atty., and Carl Strass, Atty., Dept, of Justice, with him on the brief), for appellees.
    Bruce W. Gambill, of Kelly & Gambill, Pawhuska, Okl., for intervenor-appellees.
    Before SETH, BARRETT and DOYLE, Circuit Judges.
   SETH, Circuit Judge.

Appellant, Velma Rose Bigheart, appeals from an order of the district court approving the administrative determination of the Department of the Interior that the 1967 will and codicil of William Bigheart, Jr. were valid and effective. William Bigheart, Jr. was a half blood Osage Indian, and appellant is decedent’s widow. The decedent died on September 27, 1969, possessed of certain restricted property, and left surviving the appellant, two children by a former marriage, and his mother.

Appellant and decedent were married in 1965. Both had been married several times previously and had known each other for some time. Decedent had a serious drinking problem and had been hospitalized many times. After their marriage, appellant and decedent moved to Oklahoma from South Dakota where they had been residing. Decedent owned a ranch in South Dakota on which his mother and her husband lived. Since decedent was an unallotted Osage, without a certificate of competence, all property of decedent was held in trust by the United States. Upon their arrival in Oklahoma, decedent contacted the Osage Indian Agency and requested that his South Dakota property be sold so that he might buy a house in Pawhuska, Oklahoma. There was evidence in the record that this was done. Decedent’s medical problems continued, and shortly after his arrival in Pawhuska, decedent contacted his attorneys and drew a new will, cancelling his old will and the codicils thereto. This will was executed in 1965 and will hereinafter be termed the 1965 will. However, the record shows that decedent continued to drink heavily. There was evidence that appellant would not allow decedent to drinlt while at home. After the sale of the South Dakota ranch, decedent’s mother and her husband, came to live in Pawhuska. Sometime in the late spring or early summer of 1967, decedent went to live with his mother. On the 27th day of June, 1967, decedent executed a new will which completely omitted his wife, appellant herein. On the same day he filed for divorce. On July 7, 1967, on his way to have a gall bladder operation, decedent executed a codicil to the June 27th will, leaving $10.00 to appellant.

After his death, the Osage Indian Agency commenced Will Approval hearings in accordance with regulations of the Department of the Interior. Appellant contested the 1967 will and codicil thereto on the grounds that decedent did not have testamentary capacity in 1967 and that he was under the domination of his mother at that time. Decedent’s 1965 will left his mother $100.00 a month for life payable from decedent’s Osage headrights, with the remainder of his estate to be divided into thirds, one for his wife, appellant, and one for each of his two children. The 1967 will also left his mother $100.00 a month for her life, but provided that the remainder of his estate should be divided equally between his two children. The 1967 codicil left $10.00 to appellant and granted the additional sum of $2,500.00 to decedent’s mother.

After extensive hearings on testamentary capacity, the Field Solicitor determined that the 1967 will and codicil should be approved, and that the 1965 will had been superseded and should not be approved. His recommendations were forwarded to the Superintendent of the Osage Agency and were adopted. Appellant made exhaustive administrative appeals which were all determined adversely to her. The 1967 will was then sent to be probated in the courts of Oklahoma. This suit was filed, and the probate proceedings were stayed pending the outcome of this action.

After an examination of the record of the administrative hearings, we are convinced that the trial court was correct in its determination that the decision of the Agency was supported by substantial evidence on the record as a whole. Appellant attempted to show that the 1965 will was proper, and that the 1967 will was executed under the influence of decedent’s mother. However, it will be noted that the provisions for decedent’s mother in the 1967 will and codicil thereto do not differ substantially from those in the 1965 will. The only substantial difference between the two wills was the inclusion of appellant in the former, and her almost total exclusion from the latter. In light of the fact that decedent had commenced divorce proceedings against appellant, we do not find that to be unusual. We also hold that there was substantial evidence on the record as a whole to support the determination that decedent had testamentary capacity when he executed the 1967 will and codicil and revoked the 1965 will.

Appellant also made the contention that she should be allowed to elect against the will as permitted by 84 Okl.Stat.Ann. § 44, and take an intestate share under 84 Okl.Stat.Ann. § 213. However, section 7 of the Act of February 27, 1925, 43 Stat. 1008, seemingly prevents appellant from so doing. That section as amended September 1, 1950, provides as follows:

“Hereafter none but heirs of Indian blood shall inherit from those who are of one-half or more Indian blood of the Osage Tribe of Indians any right, title, or interest to any restricted lands, moneys, or mineral interests of the Osage Tribe; Provided, That (except in cases where a person claiming as such heir is a party to a judicial proceeding pending on the date of the enactment of this proviso in which the claimant has filed a formal pleading alleging Indian blood) no claim of heirship shall be recognized unless the claimant shall establish that he is a citizen of the United States and is enrolled on a membership, census, or other roll prepared under the direction of the Secretary of the Interior, or has a lineal Indian ancestor so enrolled. . . . ”

Appellant alleges first, that this Act is unconstitutional, and secondly, that she has not been given notice and an opportunity to show that she is of Indian blood, and enrolled or the lineal descendant of someone enrolled on a tribal roll or census. On the first point, appellant sought to have the question determined by a three-judge panel. 28 U.S.C. § 2284.

The trial court determined, and properly soj that the constitutionality of section 7 of the Act of 1925, although not having been explicity ruled upon, had been upheld in other situations almost identical hereto, and that it was therefore not necessary to convene a three-judge court. That Congress can regulate as to inheritance of restricted Indian properties and that this classification, although based on race, is permissible, has been determined in many cases. See Simmons v. Eagle Seelatsee, D.C., 244 F.Supp. 808, aff’d 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed.2d 480; Blanset v. Cardin, 256 U.S. 319, 41 S.Ct. 519, 65 L.Ed. 950; Ute Indian Tribe of Uintah & Ouray Reservation v. Probst, 428 F.2d 491, rehearing denied 428 F.2d 498 (10th Cir.); Groundhog v. Keller, 442 F.2d 674 (10th Cir.).

As for appellant’s contention that she was not given notice and an opportunity to be heard on the question of whether or not she was of Indian blood and met the requirements of section 7 of the Act of February 27, 1925, we hold that appellant’s counsel properly reserved that issue for presentation to the County Court of Osage County, Oklahoma, where the will had been filed for probate. It was the function of the Department of the Interior to approve or disapprove decedent’s will. This having been done, appellant can properly seek to elect against the will under the provisions of Oklahoma law if she can meet the federal requirements of section 7. Oklahoma courts have consistently followed this procedure. See Ware v. Beach, 322 P.2d 635 (Okl.1957); Mashunkashey v. Mashunkashey, 191 Okl. 501, 134 P.2d 976 (1942); In re Smith’s Estate, 188 Okl. 158, 107 P.2d 188 (1940); In re Martin’s Estate, 183 Okl. 177, 80 P.2d 561 (1938); see also Tiger v. Timmons, 147 Okl. 141, 295 P. 614 (1931).

The cases cited by appellant in support of her position that she should be allowed to elect against the will and take an intestate share according to the laws of the state of Oklahoma regardless of whether she is of Indian blood do not support her position. In re Mo-se-che-he’s Estate, 188 Okl. 228, 107 P.2d 999 (1940), although holding that the laws of the state of Oklahoma were applicable to the wills of Osage Indians, the court made the following statement, at 1004:

“Plaintiffs in error contend that Jack Rogers (Albert Fierro) is not a competent person to protest the will for the reason that he has not shown himself interested in the estate of Mo-se-che-he, and entitled to inherit in the absence of a will, in that he is a white person and not entitled to inherit as the surviving husband of a fullblood Osage Indian woman.
“That question is not before us at this time.
“Determination of heirship is for the County Court when the matter of final distribution comes on in regular course of administration. At that time Fierro may or may not be able to show his right to inherit. . . . ”

Soderstrom v. Bonner, 180 Okl. 355, 71 P.2d 117 (1937), made no reference whatsoever to the Act of February 27, 1925, and finally, In re Revard’s Estate, 178 Okl. 524, 63 P.2d 973 (1936), dealt with the will of a member of the Osage Tribe “of less than half-blood, to whom a certificate of competency had been issued.” It is thus readily apparent that the Act of February 27, 1925, which by its terms is applicable only to the will of Osage Indians of one-half or more Indian blood, was not determinative of any of the issues in that case, and it was, in fact, never mentioned by the court.

We have reviewed appellant’s other contentions of error, and find them to be without merit.

Affirmed.


author: PER CURIAM:

text:
    H. L. MOORE, Plaintiff-Appellee-Cross Appellant, v. J. C. KNOWLES et al., Defendants-Appellants-Cross Appellees.
    No. 71-3523.
    United States Court of Appeals, Fifth Circuit.
    Aug. 2, 1973.

      R. A. Wilson, A. B. Hankins, Amarillo, T.ex., for appellant.
    Larry Watts, John G. Abbott, Houston, Tex., Stephen J. Poliak, Atty., Washington, D. C., for appellees.
    Before WISDOM, THORNBERRY and GODBOLD, Circuit Judges.
   ON PETITION FOR REHEARING

PER CURIAM:

Upon consideration of the petition for rehearing of the appellee and cross-appellant Moore and the response of the appellants and cross-appellees Knowles, et al, we withdraw our opinion, reported at 466 F.2d 531, and issue the following opinion.

Moore, the plaintiff below, was a male teacher in the eighth grade of a Texas school system, teaching both male and female students. In early 1970, female pupils made assertions to law enforcement officers that Moore had engaged in or attempted misconduct with them of a sexual nature. Immediately school officials excluded Moore from classroom teaching. Subsequently the school board, without a proper hearing, suspended him from teaching duties, with pay, for the remainder of the 1969-70 school year. Later the board, without hearing, refused to consider renewal of Moore’s contract for the 1970-71 school year.

Moore sued, claiming violation of due process because the foregoing actions had been taken without hearing. The District Court treated the first and second actions together as a suspension with pay for the remainder of the school year, and, after balancing the considerations involved, including the nature of the charges and their seriousness, and the board’s responsibilities to all pupils and their parents, concluded that there had been no violation of due process. Moore v. Knowles, 333 F.Supp. 53 (N.D.Tex.1971).

As to the refusal of the board, without a hearing, to consider renewal of Moore’s contract for 1970-71, the court found this to be a violation of due process and awarded Moore back pay for 1970-71 and attorney fees. It based the entitlement to hearing on the ground that while Moore lacked tenure he had an expectancy of employment. The defendants appealed and Moore cross-appealed.

The exclusion of Moore from continuing to perform his teaching duties occurred on January 7, 1970, immediately after the girl students made their assertions to law enforcement officers. In a conference on January 7, attended by law enforcement officers, Moore was informed of the pupils’ charges. He was not then formally suspended but was barred from continuing his classroom teaching duties. His pay continued. We agree with the analysis of the District Court that, upon balancing all the considerations involved, the board did not violate due process by forthwith, and pending further developments, directing that Moore must not continue teaching his classes. School officials, responsible for the safety of teenage students, had a range of discretion in acting to meet what reasonably could be considered as an emergency situation and to keep school going. Cf. Dunn v. Tyler Independent School District, 460 F.2d 137 (CA5, 1972); Ferrell v. Dallas Independent School District, 392 F.2d 697, 704 (CA5, 1968).

On January 28 the county grand jury indicted Moore on four charges: two separate charges of aggravated assault and battery and one of contributing to delinquency of a minor, all allegedly relating to one child; one charge of assault with intent to rape and indecent exposure, allegedly concerning another child. Beginning around January 13 Moore had begun to seek a hearing before the board. On February 11, without a proper hearing, the school board notified Moore that he was relieved from his teaching duties for the remainder of the school year, with pay, pending further investigation by the board and further consideration of the matter. For the same considerations spelled out above, plus the intervening indictments by the grand jury, we consider that the board did not err in changing Moore’s status, without a hearing, from that of teacher without portfolio to suspension from teaching duties for the remainder of the year, with pay. In reaching this conclusion we consider the grand jury’s actions to have special significance, which we discuss below.

We turn now to the refusal to consider renewal of Moore’s contract. On February 27 the superintendent informed Moore that the renewal of his contract for 1970-71 would not be acted upon pending resolution of the “problems with which you are acquainted.” In the subsequent litigation in District Court board members acknowledged that their actions concerning Moore were taken as a consequence of the outstanding indictments and that in other respects he was a qualified teacher. The court found that Moore had an expectancy of employment and that the school board’s failure to give him a hearing on its refusal to renew his contract for 1970-71 was a violation of due process, and the court awarded him back pay for 1970-71 plus attorney fees. We reversed as to the failure to renew the contract for 1970-71, based on Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), in which the Supreme Court held that the mere expectancy of employment did not necessitate a hearing.

In his petition for rehearing Moore makes two major points. The first is that he is entitled to a remand to afford him the opportunity to offer proof tending to show that while he lacked contractual or formal tenure he nevertheless possessed a “property” interest in his continued employment as defined by the new Sindermcmn principles. Sindermcmn was decided at the trial level on summary judgment. The Supreme Court remanded the case to afford plaintiff an opportunity to prove his claim of constructive tenure. While the present case was fully tried below, we must and do recognize that the precise focus, factual and legal, was not upon the incidents of employment and practices of the school system that might have given Moore a status sufficiently close to tenure that he would enjoy a “property” interest in future employment. Rather under the law then existing in this circuit all Moore needed to establish was the expectancy of employment that Sindermcmn was to later hold was not sufficient. We agree with plaintiff that he is entitled to his day in court under the new standards laid down by Sindermcmn. We withdraw our judgment of reversal as to back pay for 1970-71 and attorney fees, vacate the District Court judgment with respect to those matters, and remand the case for further consideration by it under the new standards of Sindermann. See, Johnson v. Fraley, 470 F.2d 179 (CA4, 1972).

As his second point, Moore refers to Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), decided the same day as Sindermcmn, in which the Supreme Court recognized that even a teacher without tenure or formal contract is entitled to a hearing if a decision not to rehire him deprived him of an interest in “liberty” without due process. He correctly points out that we should specifically consider the applicability of Roth. We now do so. In Roth the Supreme Court said:

The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” [Citations.] In such a case, due process would accord an opportunity to refute the charge before University officials.
* -X- * -X- -X- *
Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.

408 U.S. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 558-559. Moore contends that his case is within the “different case” to which the Supreme Court referred. Doubtless the charges of sexual misconduct would “seriously damage his standing and associations in the community”; the charge was one of immorality; his “good name, reputation, honor or integrity” were at stake; and the state action “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.”

But this case involves considerations not present in the Supreme Court’s hypothetical “different case.” The law enforcement machinery of the State of Texas had intervened. Undoubtedly the board’s acts in first suspending Moore from teaching duties for the remainder of the year and then declining to consider his contract for renewal added to the damage to Moore’s reputation, but the real “badge of infamy” flowed from the indictments and not from what the board did in reacting to them, and no action by the board could clear Moore’s name. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Board of Regents v. Roth, 408 U.S. at 573 fn 12, 92 S.Ct. at 2707 fn 12, 33 L.Ed.2d at 558 fn 12.

We conclude that the action of the board in declining, without hearing, to consider renewal of Moore’s contract, was not a violation of due process under Roth. The fact of the indictments was not in dispute. Moore had knowledge of the indictments and had notice of the board’s reasons for refusing to act on his contract. Implicitly, if not explicitly, the board concluded, as had the superintendent initially, that a male eighth grade teacher charged with sexual misconduct with his teen-age female pupils should not be in contact with them in the teaching process. A public employing body, having knowledge of the existence of charges such as were here made, as part of its ultimate conclusion must consider the extent to which the charges reflect the possibility of culpability. Had the board itself leveled the misconduct charges against Moore, or had it relied upon only the charges by the girl students, Moore would have been entitled to a hearing. Wilderman v. Nelson, 467 F.2d 1173 (CA8, 1972). But once the underlying charges were presented to and acted upon by the grand jury — the state body whose function is to consider evidence of crime and to determine whether there exist sufficient grounds to hold an accused for trial —the board was entitled to accept that body’s probable cause determination. After the grand jury had acted, the issue for the board was not whether Moore had committed the acts charged by the girls or whether he was guilty or innocent under the indictments but whether the existence and pendency of the indictments justified his suspension and the refusal to act upon the matter of his contract renewal.

“The minimum procedural requirements necessary to satisfy due process depend upon the circumstances and the interests of the parties involved.” Dixon v. Alabama State Bd. of Education, 294 F.2d 150, 155 (CA5, 1961); see also, Joint Anti-Facist Refugee Committee v. McGrath, 341 U.S. 123, 163, 71 S.Ct. 624, 644, 95 L.Ed. 817, 849 (1951) (Frankfurter, J., concurring). A hearing before the board on the issue of Moore’s guilt, or the issue of probable cause of guilt, would have placed the board in an unseemly position vis-a-vis the law enforcement structure of the state. The board was not the proper body to try guilt or innocence or to retry probable cause. Board findings in one direction would have injured the interests of the state, and in another direction would have damaged those of Moore.

In Paine v. Board of Regents, 355 F.Supp. 199 (W.D.Tex.1972), 474 F.2d 1397 (CA5, 1973), we affirmed on the District Court opinion the conclusions of a district judge that the regents of the University of Texas could not enforce a rule automatically suspending for two years any student placed on probation or finally convicted of use, possession or sale of a drug or narcotic, without a hearing for the student to determine if he was in fact fit to remain in the university. The rule was grounded upon the determination by the regents that the increase in use, possession and sale of drugs made it imperative that all users, possessors and sellers be separated from student bodies because they would influence other students to commit the same illegal acts. The plaintiffs in Paine were students who had been convicted but placed on probation by the Texas state courts. Thus the state judicial system had considered whether they were fit to return to the community and had concluded that they were fit. The evidence in the case justified the conclusion that students placed on probation by state courts were usually only possessors, and that some of the probationers exerted a positive influence against drug use and possession rather than having a detrimental effect on those around them. Thus, the presumption of the regents that every person convicted or on probation was a threat to other students was not supported by the evidence. In the present case when the board suspended Moore, and when it declined to consider renewal of his contract, the state law enforcement machinery had not taken final action with respect to the charges against him nor had it made any determination concerning his fitness to return to his former status. Until state action was completed the board was entitled to conclude that with the indictments pending Moore could not effectively perform in an eighth grade classroom, that the overriding interests of the schools, the pupils and their parents necessitated his not returning to the classroom, and that it should not act on renewal of his contract until the criminal proceedings had run their course.

However, all this is not necessarily the end of the matter. The- pendency of the indictments made it unnecessary for the board to conduct a hearing at that time. But the inchoate status of the Texas criminal proceedings does not determine the question of whether, under the principles of Roth, Moore can ever have a hearing before the board to provide him an opportunity to clear his name, if he desires it. If Moore is tried under any of the indictments and found guilty, the board need offer him no hearing — it is not required to serve as a sort of appellate tribunal for a teacher convicted in state criminal court and desirous of escaping in part the impact upon the public mind through use of an administrative hearing which might take a different view than did the criminal courts. If, however, Moore is acquitted of all the charges, or if after the expiration of a reasonable period of time the criminal charges remain undisposed of, then under Roth the board is obligated to offer to Moore, if he desires it, a hearing at which he has the opportunity of clearing his name. Such a hearing the board already has expressed itself as willing to offer when the criminal cases have been disposed of by trial. The board would not, by conducting such a hearing, be bound to re-employ Moore and it would not be liable for back pay.

The purpose of such . . . hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.

Board of Regents v. Roth, supra, 408 U.S. at 573, fn 12, 92 S.Ct. at 2707 fn 12, 33 L.Ed.2d at 558, fn 12.

On grounds of res judicata the District Court dismissed as a defendant Robert Gallaway, the district attorney and counsel for the board at the time Moore was suspended. In a suit completed prior to the filing of this case and brought against Gallaway as district attorney, Moore had attempted unsuccessfully to prove that Gallaway had denied him due process. We find no reversible error in the dismissal. IB Moore, Federal Practice, ft 0.410(2) (1965).

The present case was brought by Moore on August 26, 1971 against three then current members of the board and two other individuals who were members of the board at the time of Moore’s suspension but who had been defeated in elections prior to institution of this suit. These five defendants were sued in their individual and official capacities. Throughout pre-trial and trial defendants contended that Moore had failed to join the board as an indispensable party. The last day of trial, after Moore voluntarily dismissed his claim for damages, Moore moved to join the board as defendant. In its opinion and order the District Court stated:

It is true that the named defendants were the five members of the Board as it was constituted in the spring of 1970, along with the superintendent, and that two of those five were replaced in the election held in April of 1970. However, Rule 25(d), F.R.C.P., provides that when a public officer is a party to an action and subsequently ceases to hold office, which is this case, the action does not abate, and his successor is automatically substituted as a party. Therefore there are now before this Court five of the seven members of the Board of Trustees.

Rule 25(d), however, contemplates substitution during pendency of the suit. Because two defendants were no longer members of the board when suit was filed they were not public officers and not before the court as board members.

The District Court, on the basis of its assumption that it properly had before it a majority of the board, dismissed all defendants in their individual capacities and entered its judgment against the board. The Texas Education Code, art. 23.26, V.T.C.A., provides that school district boards of trustees are corporate bodies which may “sue and be sued.” Under Texas law and under all equitable considerations the board must be brought properly before the court or the court cannot enter or enforce a judgment against it. Whitmore v. Stilwell, 227 F.2d 187 (CA5, 1955); Thaxton v. Vaughan, 321 F.2d 474 (CA4, 1963).

Rule 19 and Rule 21, F.R.Civ.P., provide wide discretion for the District Court to order joinder of parties, but that joinder must be accomplished with the requirements of due process in mind. The District Court was undeniably correct in deciding that its judgment should be entered against the board, Ferguson v. Thomas, 430 F.2d 852 (CA5, 1970), but notifying and effectively joining the board in the final judgment against it was not sufficient to confer jurisdiction over the board.

Failure to join an indispensable party is not, however, an unyielding jurisdictional defect. 3A, Moore, Federal Practice, 19.19. In this case the board’s lawyer represented the defendants; he was paid from board funds, and the board’s position was effectively presented before the District Court and this court. We find no substantial prejudice at this stage of the litigation and no reason to dismiss the case for this defect. On remand the District Court should order or permit Moore to join the board as a corporate body. The procedural mechanisms we leave to the District Court and to Moore. See, e. g., Rule 4(d) (6), F.R.Civ.P.

Our prior opinion is withdrawn. The judgment of the District Court is affirmed in part, vacated in part, and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.

      . Skidmore v. Shamrock Ind. School District, 464 F.2d 605 (CA5, 1972), is not contrary to our disposition. That was an appeal from the granting of a motion to dismiss predicated on failure to pursue available state administrative remedies. This court affirmed on the ground of the failure to initiate the available nonjudicial review procedure and as an additional ground noted that under the Supreme Court’s decision in Sindermcmn the complaint failed to state a claim upon which relief could be granted.

      . The District Court found that Moore was “put * * * in the untenable position of being unable to earn a living in his chosen profession,” and that it was unlikely any other school district would employ him.

      . Tlie District Court found that the board intended not to take any action with respect to renewal of Moore’s contract until after the indictments had been acted upon by trial, which they expected to happen prior to the 1970-71 school year.

      . See also those cases holding that where the government has an overriding interest, or under exigent or emergency circumstances, the government may deprive an individual of a protected interest ecu parte and summarily if an opportunity for a hearing is furnished later. Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947); Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1943); see also, Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, 119 (1971); Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90, 96 (1971).

      . See footnote 3, supra.

      . Our conclusions as to a Itoi7i.-type hearing before the board are, of course, independent of the hearing which we direct be held by the District Court to determine whether under present Siniermann standards Moore liad such status in the school system that he was denied due process by the refusal without a hearing to consider renewal of his contract, and, if he did have such status, to award appropriate back pay and attorney fees as a result of the deprivation of his property without due process.


author: PHILLIPS, Chief Judge.

text:
    Marc David MANSON et al., Plaintiffs-Appellees, v. George C. EDWARDS, Clerk for the City of Detroit, et al., Defendants-Appellants.
    No. 73-1025.
    United States Court of Appeals, Sixth Circuit.
    Argued April 19, 1973.
    Decided July 12, 1973.
    Robert Reese, Asst. Corp. Counsel, Detroit, Mich., for appellants; Michael M. Glusac, Corp. Counsel, Detroit, Mich., on brief.
    Richard A. Soble, Detroit, Mich., for appellees; Goodman, Eden, Millender, Goodman & Bedrosian, Detroit, Mich., on brief.
    Before PHILLIPS, Chief Judge, CELEBREZZE, Circuit Judge, and LAM-BROS, District Judge.

       Honorable Thomas D. Lambros, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   PHILLIPS, Chief Judge.

A minimum age of twenty-five years for the office of City Councilman is prescribed by the Charter of the City of Detroit. This suit challenges that restriction as violative of the equal protection clause of the Fourteenth Amendment.

In an opinion published at 345 F.Supp. 719 (E.D.Mich.1972) the District Court found the challenged charter provision to be unconstitutional. The District Judge held that the restriction could not withstand the scrutiny of the equal protection clause, because the City was unable to demonstrate a compelling state interest in its support. The City appeals. We reverse and remand for the reasons hereinafter set forth.

Marc David Manson, a twenty-one year old registered voter, attempted to file as a candidate for the office of Councilman. The City Clerk refused to accept Manson’s petition or to place his name on the ballot because he failed to qualify for the minimum age prescribed by the City Charter.

Thereafter this suit was filed by Manson and three registered voters who alleged a desire to vote for him, charging a denial of equal protection.

The threshold question is whether the age restriction should be examined under the traditional rational basis test or whether there are exceptional circumstances in the present case requiring application of the more strict compelling state interest test.

The Fourteenth Amendment does not require a state to treat all people identically. State legislation, even though discriminatory, generally will not be held violative of the equal protection clause where it can be shown that the classification bears some rational relationship to a legitimate state objective. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Robinson v. Board of Regents, 475 F.2d 707 (6th Cir. 1973).

In McDonald v. Board of Elections, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.E.2d 739 (1969), Chief Justice Warren wrote:

“The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them.”

Under certain circumstances a stricter scope of review will be employed, generally referred to as the “compelling state interest” test. See Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Green v. McKeon, 468 F.2d 883 (6th Cir. 1972). The stricter standard will only be employed where the classification is inherently “suspect,” as for example where the classification is by race, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), or where the restriction infringes a fundamental right, such as the right to vote, Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).

Differentiations based upon classification by age are not viewed as suspect. See, United States v. Duncan, 456 F.2d 1401 (9th Cir. 1972); Smith v. United States, 424 F.2d 267 (9th Cir. 1970); Republican College Council of Pennsylvania v. Winner, 357 F.Supp. 739 (E.D.Pa.1973).

We believe the correct method of analysis for issues of this character is set forth in the recent decision in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). In that case the Court determined that a state law that inhibited potential candidates for office from seeking their party’s nomination because neither they nor the voters who supported them could pay a portion of the cost of conducting the primary, so discriminated against those candidates and the voters who wished to support them as to be violative of the equal protection clause. The Court noted that while the issue was essentially one of candidates’ rights:

“ [T] he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review.” 405 U.S. at 143, 92 S.Ct. at 856.

In determining whether the effect on voters will be sufficient to mandate the stricter standard in a case essentially involving candidates’ rights, the Court noted: “In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” 405 U.S. at 143, 92 S.Ct. at 856. After determining that the size of the filing fees would discourage potential candidates, that many candidates would be forced to look to their supporters for assistance, and that the result of this would be to inhibit candidates favored by the less affluent and encourage the candidates supported by the rich, the Court held:

“Because the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper [v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966)], that the laws must be ‘closely scrutinized’ and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.” 405 U.S. at 144, 92 S.Ct. at 856.

The Texas statute therefore was held to be invalid because its impact upon voters related to the wealth of candidates. While wealth is not per se suspect, electoral restrictions based upon affluence will be examined with close scrutiny. Harper, supra. Since the impact in the instant case does not relate to a suspect classification, we disagree with the District Court and hold that the rational basis test is to be applied here.

The controlling question in this case is whether there is a rational basis for the age restriction set forth in the Detroit charter; that is, whether the minimum age of twenty-five years for Councilman bears a rational relation to a legitimate goal.

The prescribing of minimum ages for public officials is sanctioned by time-honored precedent. The Constitution of the United States fixes a minimum age of thirty-five for the President (Art. 2, § 1, c. 5), thirty for United States Senators (Art. 1, § 3, c. 3), and twenty-five for Representatives (Art. 1, § 2, c. 2).

The Constitutions of three of the four States within the Sixth Circuit prescribe minimum ages for State officers. In Michigan, Kentucky, and Tennessee the minimum age for the office of Governor is thirty. State Senators in Kentucky and Tennessee must be not less than thirty years of age, and in Michigan, twenty-one. In Michigan, Kentucky, and Tennessee members of the House of Representatives must be at least twenty-one years of age. Justices of the Kentucky Court of Appeals and the Supreme Court of Tennessee must be not less than thirty-five years of age.

In an analogous situation, a three judge court recently held that the Illinois twenty-one year age requirement for local school board membership is reasonable. The court specifically rejected the contention that the compelling state interest standard was applicable. Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill.1973).

In the present case, however, we do not pass upon the issue of the validity or invalidity of the charter provision under the rational basis test. There is no evidence in the record on this question. The opinion of the District Court expressly states as follows: “Whether, as defendants argue, there is a rational basis for the City Charter age qualification is a question this court need not explore.” 345 F.Supp. at 724.

The judgment of the District Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion. No costs are taxed. Each party will bear his own costs on this appeal.

      . Title 3, Ch. 1, § 3.


author: McENTEE, Circuit Judge.

text:
    WHITTAKER CORPORATION, Plaintiff-Appellant, v. UNITED AIRCRAFT CORPORATION et al., Defendants-Appellees.
    No. 73-1095.
    United States Court of Appeals, First Circuit.
    Heard June 6, 1973.
    Decided July 23, 1973.

      William M. Simmons, Boston, Mass., with whom Vom Baur, Coburn, Simmons & Turtle, and Thomas J. Mizo, Boston, Mass., were on brief, for appellant.
    Stephen A. Moore, Boston, Mass., with whom Michael G. Tracy, and Gaston, Snow, Motley & Holt, Boston, Mass., were on brief, for United Aircraft Corp. and Ladish Co., defendants-appellees.
    Christian M. Hoffman, Boston, Mass., with whom Jerome Preston, Jr., John Leubsdorf, and Foley, Hoag & Eliot, Boston, Mass., were on brief, for Gulf and Western Industrial Products Co., defendant-appellee.
    Before COFFIN, Chief Judge, and Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Plaintiff, Whittaker Corporation, incorporated and having its principal place of business in California and its Nuclear Metals Division in Massachusetts, initiated this action against defendants, United Aircraft Corporation, Gulf and Western Industrial Products Company, and Ladish Company (hereinafter United, Gulf, and Ladish) for alleged breach of contract and, as against United only, for alleged actionable deceit. United and Gulf are Delaware corporations which have their respective principal places of business in Connecticut and in a state other than California. Ladish is incorporated and has its principal place of business in Wisconsin. Jurisdiction was based on diversity of citizenship and damages well in excess of $10,000 were alleged. Personal jurisdiction was sought under Fed.R.Civ.P. 4(d)(7) pursuant to the Massachusetts “long arm” statute, M.G.L.A. c. 223A § 3 (1973 Supp.), by serving each corporate defendant by registered mail. Defendants moved to vacate this service alleging that there was no basis for personal jurisdiction and also to dismiss the complaint for improper venue. After a brief hearing on affidavits, the trial court granted the motions to dismiss for lack of jurisdiction over the person. This appeal followed. For the reasons set forth below, we reverse as to United but affirm as to Ladish and Gulf.

The underlying facts are not in dispute. In 1963 Whittaker’s Nuclear Metals Division, located in Concord, Massachusetts, developed a new procedure known as the Rotating Electrode Process (REP) for the manufacture of metal powder. In 1966 United began purchasing powders produced by this process from Whittaker. In September 1970, after receiving a government contract for the manufacture of jet aircraft engines, United ordered one log of IN 100 metal alloy to be produced by Whittaker using the REP procedure in accordance with its specifications. United informed Whittaker that this log would be tested to determine whether it could become a “qualified and approved” source of logs under the “GATORIZING™” process United was developing to fulfill its jet engine contract. Thereafter Whittaker produced a number of additional test logs in order that it might become qualified to participate in this program. Although the parties’ affidavits indicate that all of United’s solicitations regarding Whittaker’s participation in this program were made either in Florida or Connecticut, they also show that United personnel contacted Whittaker employees in Massachusetts by telephone, teletype, or mail on thirteen occasions and visited Whittaker’s Massachusetts facility on four instances during this qualification ■ period.

On or about March 1, 1971, United informed Whittaker that it had become a qualified source of IN 100 logs for use in the GATORIZING™ process. As further conditions to qualification, however, Whittaker was required to sign “Vendor Agreements,” in which it promised to make no changes in its source of alloy or its manufacturing process without United’s approval, and a “Secrecy Agreement,” under which .it agreed to keep all other participants in the GATORIZING™ procedure ignorant of the details of the work it performed. Again the parties’ affidavits indicate that all of these agreements were made at United’s facilities in either Florida or Connecticut.

Following Whittaker’s qualification, United notified the turbine disc producers who were participating in the program that they could now use Whit-taker as a log source. As a result, Whittaker received an oral order for 9,568 pounds of processed alloy from defendant Ladish on April 30, 1971, and, on May 13, 1971, a similar but larger order from defendant Gulf. On June 1, in spite of the fact that United had discovered a weakness in one of Whittaker’s test logs and had sent Whittaker revised specifications in an attempt to overcome this defect, United employee LaGrace, while visiting Whittaker’s Concord plant, urged Whittaker to proceed with its work on the Ladish and Gulf orders representing that United would not require strict compliance with design specifications. Based upon this representation, in July and August 1971 Whittaker entered into written agreements confirming the Ladish and Gulf oral orders and, in September, entered into a similar agreement for the production of additional logs for United. In the fall of 1971, however, the defendants rejected the logs Whittaker had produced under these agreements alleging that they failed to comply with contract specifications. Although not wholly unambiguous, the parties’ affidavits reflect that while none of the defendants was either licensed to do business or had any offices or any agents either soliciting or engaged in any other business in Massachusetts, United’s employees did make five visits and send sixteen documents and twenty teletype and telephone messages into the Commonwealth from the time of Whittaker’s qualification to the rejection of the logs. During this same period the tally for Ladish was one visit, nine documents, and two phone calls and for Gulf three visits, seven documents, and nine teletype and telephonic messages.

On this background Whittaker sought to obtain personal jurisdiction over all three defendants under § 3(a) and (b) of the Massachusetts long arm statute, M.G.L.A. c. 223A (1973 Supp.) and, additionally, over United under § 3(c). Specifically, Whittaker contended that the defendants were amenable to service of process under § 3(a) because the contacts set forth above indicated that they were all transacting business within Massachusetts and under § 3(b) because all of them had supplied design specifications to Whittaker to govern its performance of the contracts in question. Jurisdiction over United under § 3(c) was posited upon its allegedly deceitful representation that strict adherence to contract specifications would not be required. In the alternative, Whittaker sought discovery concerning these issues. The trial court, however, interpreting the most open-ended provision in the statute, § 3(a), concluded that the defendants’ conduct “was not substantially different from [the mere placing of orders in thfe commonwealth] found insufficient” to support personal jurisdiction in the Supreme Judicial Court’s recent decision in “Automatic” Sprinkler Corp. of America v. Seneca Foods Corp., 1972 Mass.Adv. Sheets 601, 280 N.E.2d 423 (1972), and granted the motions to dismiss.

On appeal Whittaker reasserts the contentions raised below. Turning first to the “transacting any business” section of the statute, § 3(a), the initial issue which must be resolved is whether, as a matter of state law, Massachusetts has “provided for bringing foreign corporation [s] into its courts under the circumstances of the ease presented.” Pulson v. American Rolling Mill Co., 170 F.2d 193, 194 (1st Cir. 1948). See Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir. 1963). In the instant case, however, since § 3(a) has recently been construed “as an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States,” “Automatic” Sprinkler Corp. of America v. Seneca Foods Corp., supra,, 280' N.E.2d at 424, this question gives way to a second inquiry, namely whether the state’s jurisdictional assertion offends the due process requirements of the fourteenth amendment. The parameters of this second inquiry are, of course, well settled. Where a foreign corporation has established “certain minimum contacts” with the forum so “that the maintenance of the suit [would] not offend ‘traditional notions of fair play and substantial justice,’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), and has “purposely avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958), jurisdiction will be upheld. Within this constitutional framework a number of factors, including the nature and purpose of the contacts, the connection between the contacts and the cause of action, the number of contacts, the interest of the forum, and the convenience and fairness to the parties must be considered. See, e. g., Seymour v. Parke, Davis & Co., 423 F.2d 584, 586-587 (1st Cir. 1970); Aftanase v. Economy Baler Company, 343 F.2d 187, 197 (8th Cir. 1965).

In analyzing these criteria we note at the outset that we cannot subscribe to defendants’ theory that the instant case is controlled by “Automatic” Sprinkler, supra, since, as we read the complaint and affidavits, it seems clear that defendants’ contacts with Massachusetts were more substantial than those found in that case. In “Automatic” Sprinkler the defendant’s only contact with the Commonwealth was its mailing of a purchase order and check in partial payment to plaintiff’s division in Worcester and its receipt of a letter and invoice mailed from that location. This was held to be an insufficient basis to support long arm jurisdiction under § 3(a). In the case at bar, however, in addition to the fact that each of the defendants had more numerous contacts with the forum, it is undisputed that the defendants, or at least United, supplied the design specifications and work statements which governed Whittaker’s performance and also that all of Whittaker’s production took place in the Commonwealth. Under these circumstances, while we view “Automatic” Sprinkler as instructive as to the approach of the Massachusetts courts in construing long arm legislation, we cannot agree that it disposes of the instant case.

Turning next to the conduct of the individual defendants, as an initial matter we note that United’s activities in the forum were clearly more extensive than those of either Ladish or Gulf. In the first place, it was only after United’s solicitation that Whittaker initiated its attempt to become a qualified participant in the GATORIZING™ process. During the pre-qualification period, in addition to supplying the specifications and procedures which governed Whittaker’s performance, United personnel regularly communicated with and frequently visited Whittaker’s Concord facility. From these facts, it seems a fair inference that United either actively supervised or actually participated in Whit-taker’s initial development of the alloy logs. In the period following qualification the contacts continued to be extensive. In spite of the failure of one of its logs, United encouraged Whittaker to proceed with work on the Gulf and Ladish orders. Moreover, throughout the project United monitored Whittaker’s performance by purchasing and testing additional logs and by amending specifications when defects came to light. Cf. Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (5th Cir. 1966).

On this background the extent of United's participation in the economic life of Massachusetts seems clearly to rise above that of a purchaser who simply places an order and sits by until the goods are delivered. See In-Flight Devices Corporation v. Van Dusen Air, Inc., 466 F.2d 220, 232-233 (6th Cir. 1972). The trial court’s characterization of United’s conduct as merely “ancillary activity undertaken ... in connection with [its] order” thus seems somewhat inappropriate. Moreover, it would not be unfair to require United to defend this action in Massachusetts. Given the five year history of prior dealing between the parties, United may not claim surprise at being expected to appear in this forum. Finally, since United’s allegedly deceitful representation concerning non-compliance with specifications was made in Massachusetts, an independent basis for jurisdiction under § 3(c) of c. 223A exists. As we noted in construing this provision in Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 663 (1st Cir. 1972), “if plaintiff alleges that defendants’ agents made misrepresentations to him personally within Massachusetts, defendant would without question be within the jurisdiction of the court.” United’s response that this count fails to state a claim because the complaint contains no allegation that this representation was made with the intent to cause injury does not withstand scrutiny since the pleadings provide that this statement “was a representation of the existing state of mind of United” which was “false with the direct and proximate result that the Plaintiff has been damaged. . . . ” Even under the more stringent standards of Rule 9(b), Fed.R.Civ.P., these allegations were sufficient. For all of these reasons, we conclude that the trial court erred in granting United’s motion to dismiss.

Whether jurisdiction exists over Ladish and Gulf is more troublesome, however, since both seem to fall more clearly into the category of passive purchasers. First, it is undisputed that neither had any contact with Whittaker in Massachusetts during the pre-qualification period. Only after United informed them that Whittaker was approved did they place their respective orders. Throughout the production period, moreover, their contacts were limited and not suggestive of the type of supervision or participation in which United apparently engaged. Gulf’s only visits to Massachusetts, for example, took place after Whittaker had made its initial shipments. Whittaker’s attempt to portray Gulf and Ladish as more active participants is also not persuasive. Its allegation that they, like United, provided design specifications is not supported by the record since it is clear from the complaint that all work was performed in accordance with United’s directions. Moreover, for Whittaker to have used specifications other than those provided by United would' have been vio-lative of the Vendor Agreements it executed in order to achieve qualification. Finally, since there is no record of any prior dealing between either Ladish. or Gulf and Whittaker, apd since there was apparently no requirement in any of the agreements that performance take place in Massachusetts, these defendants may more legitimately claim surprise at being required to defend these charges in this forum.

From the foregoing, we conclude that the primary contact these two defendants had with Massachusetts was Whit-taker’s performance of their contracts within the Commonwealth. The remainder of their activities may properly be characterized as “ancillary” to the placement of these orders. While entering into a manufacturing agreement with the resident of a forum has been held to be sufficient to support long arm jurisdiction, see Simpson Timber Co. v. Great Salt Lake Minerals and Chemical Corp., 296 F.Supp. 243 (D.Ore.1969); cf. W. A. Kraft Corp. v. Terrance on the Park, Inc., 337 F.Supp. 206 (D.N.J.1972), this result has been severely criticized as rendering all purchasers subject' to long arm jurisdiction. See, e. g., McQuay, Inc. v. Samuel Schlosberg, Inc., 321 F.Supp. 902 (D.Minn.1971); Geneva Industries, Inc. v. Copeland Construction Corporation, 312 F.Supp. 186 (N.D.Ill.1970); Oswalt Industries, Inc. v. Gilmore, 297 F.Supp. 307 (D.Kan.1969); cf. In-Flight Devices Corporation v. Van Dusen Air, Inc., supra, 466 F.2d at 227, n. 13. Further, the interest of the forum in not discouraging foreign purchasers from dealing with resident sellers for fear of having to engage in litigation in distant courts undercuts such an expansive interpretation. See, e. g., Fourth Northwestern National Bank of Minneapolis v. Hilson Industries, Inc., 264 Minn. 110, 117 N.W.2d 732, 736 (1962); Conn v. Whitmore, 9 Utah 2d 250, 342 P.2d 871, 874-875 (1959). For these reasons, as well as the absence of any Massachusetts authority construing c. 223A § 3 in so broad a manner, we conclude that the trial court did not err in granting Ladish’s and Gulf’s motions to dismiss.

One further matter remains. As an alternative to the dismissal of any of the defendants, Whittaker argues that it is entitled to discovery of jurisdictional facts and, in particular, to investigate whether United was acting as an agent for either Gulf or Ladish. While we have recognized that discovery concerning jurisdictional issues is appropriate where complex factual matters are in question and where a party has been diligent and is somewhat unfamiliar with his adversary, Surpitski v. Hughes-Keenan Corp., 362 F.2d 254 (1st Cir. 1966), “the discovery rules [do] vest broad discretion in the trial court which should not be overruled without a showing of abuse.” H. L. Moore Drug Exchange, Inc. v. Smith, Kline & French Laboratories, 384 F.2d 97 (2d Cir. 1967). In the instant case, as Whittaker acknowledges, Gulf’s answer of May 25, 1972, placed it on notice that personal jurisdiction would be challenged. In spite of this fact, no attempt to initiate discovery on this issue was made until after the motions to dismiss were granted. In addition, as the record indicates, the trial court was aware of Whittaker’s agency theory, cf. Murphy v. Erwin-Wasey, Inc., supra, 460 F.2d at 665, and apparently found it to be without substance. Given the detailed allegations in the complaint concerning United’s representations to Whittaker about the GATORIZING ™ procedure, the conclusion that Whittaker would have known if United was acting as an agent for the other defendants was not unwarranted. Under these circumstances, and also because Whittaker did not specify any additional pertinent avenues of inquiry, the trial court’s denial of discovery may stand.

The order of the district court dismissing the suit as to Ladish Company and Gulf and Western Industries Products Company is affirmed, and the order of the district court dismissing the suit as to United Aircraft Corporation is vacated and that part of the case is remanded for further proceedings consistent with this opinion.

      . Whittaker also asserted that federal question jurisdiction was present because the contracts in issue were entered into under a prime contract between United and the federal government. This view was not pressed on appeal, however, and we do not see how federal law governs any of the contract or tort claims raised in the complaint.

      . Whittaker describes United’s GATOR-IZING tm process as follows:

        “Step One: The components of IN 100 alloy are melted together in accordance with United specifications by an alloy producer ‘qualified and approved’ by United who ships the resulting bars to a metal powder producer.

        Step Two : The metal powder producer (in this case, the plaintiff), reduces the ingots to metal powder, vacuum-packs the powder in a steel can or ‘billet’ manufactured in accordance with United specifications, and ships the billet to a log producer ‘qualified and approved’ by United.

        Step Three: The log producer (in this case, a subcontractor of the plaintiff), in accordance with United specifications and using dies owned by United, heats, compresses, and extrudes the steel can or billet into a ‘log’ some ten feet long, seven inches in diameter, and weighing approximately 950 pounds.

        Step Four: The log producer sends the log to a machine shop whicli cuts off the steel billet jacket from the log and then cuts the log into smaller segments called ‘mults’ for shipment to a turbine disc producer ‘qualified and approved’ by United.

        Step Five: The turbine disc producers (in this case, Ladish and Gulf), in accordance with United specifications, forge the mults into turbine discs for jet aircraft engines for F-14/P-15 fighters being manufactured by United under United States Government Oontract No. F33657-70-C-0660.”

      . Whittaker presents somewhat longer lists of contacts for both United and Ladish by including post-rejection incidents in its tally. We do not believe that such incidents should be included in evaluating the extent of defendants’ participation in the commercial life of Massachusetts. Since it is not clear from the record when Gulf rejected Whittaker’s goods, however, all of the contacts Gulf allegedly had with the forum have been included.

      . M.G.L.A. c. 223A § 3 provides in relevant part:
      “A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s
      (a) transacting any business in this commonwealth;
      (b) contracting to supply services or things in this commonwealth;
      (c) causing tortious injury by an act or omission in this commonwealth;
      (d) causing tortious injury in this commonwealth by. an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth. . .

      . The Massachusetts contacts in “Automatic” Sprinkler arose in the following manner: defendant, a New York corporation, telephoned plaintiff’s New Jersey office and was referred to one of plaintiff’s salesmen employed in Canada. AVlien the salesman visited defendant in New York, he informed defendant that the machine it wished to purchase would be built in Ohio. One week later defendant mailed a signed purchase order to plaintiff’s division in AVorcester, Massachusetts. The AVorcester office then sent defendant an invoice and letter acknowledging the order by return mail. Defendant communicated witli plaintiff’s Ohio division throughout production and eventually the machine was delivered directly from Ohio to New York. After defendant made a single partial payment by mail to Massachusetts, plaintiff sued in Massachusetts to recover the unpaid balance.

      . Whittaker argues that because United supplied these specifications for its use in Massachusetts a separate basis for jurisdiction under c. 223A, § 3(b) exists. See note 4, supra. We prefer, however, to treat this factor as just one more indication of United’s transaction of business within the Commonwealth.

      . United contends in the alternative that it is entitled to a dismissal because venue is improper in Massachusetts. Under 28 U.S.C. § 1391, the provision whicli governs venue in this action, proper venue would be present if either the claims arose or the plaintiff or all of the defendants resided in the Commonwealth. Since the allegedly deceitful representation was made in Massachusetts and since compliance with the allegedly “impossible design specifications,” which gave rise to the contractual claims in issue, was attempted in the state, we conclude that the claims arose there and that venue is proper.

      . For example, paragraphs 58 and 59 of the complaint state:
      “58. Plaintiff’s adherence to Defendant United’s hereinabove described ‘GA-TORIZING tm’ process design specifications, work statements and vendor agreements as required by Plaintiff’s hereinabove described contracts with Defendants United, Gulf and Ladish made compliance by Plaintiff with the Defendants’ interpretation of the said Section E101 criteria for acceptable inclusions impossible.
      “59. The issuance of the said impossible specification Section E101 by Defendant United and the requirement of Defendants United, Gulf and Ladish that Plaintiff adhere to such impossible specification are breaches of the aforesaid Defendants’ contracts with Plaintiff.”

      . For these reasons we conclude that Whittaker’s contention that jurisdiction over Gulf and Ladish may be obtained under § 3(b) of c. 223A, see note 4 supra, is without merit.

      . Tlie only other area of inquiry which Whittaker has expressed interest in pursuing, whether jurisdiction over United may be obtained under § 3(d) on the basis of misrepresentations it may have made to Whittaker outside Massachusetts, is no longer necessary in light of our disposition.