source: Caselaw Access Project

author: HEANEY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. Franklin Dale GOINGS and Seth Peter Bad Cob, Appellees.
    No. 74-1164.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1974.
    Decided Oct. 16, 1974.
    Glen R. Goodsell, Atty., Dept of Justice, Washington, D.C., for appellant.
    William C. Kelsch, Mandan, N.D., for appellees.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   HEANEY, Circuit Judge.

The issue presented on appeal is whether the United States retained exclusive jurisdiction over one hundred five acres of the Fort Lincoln Military Reservation after it transferred that acreage by quit claim deed to United Tribes of North Dakota Development Corporation. The deed contained several conditions subsequent and a covenant reserving in the United States the full and unrestricted control, possession and use of the property conveyed in times of emergency. The trial court held that notwithstanding these conditions, the United States had divested itself of all interest in the lands conveyed and had terminated its exclusive jurisdiction. We affirm.

Prior to May 24, 1973, the United States had exclusive jurisdiction over the entire Fort Lincoln Military Reservation in Burleigh County, North Dakota. See, United States v. Redstone, 488 F.2d 300 (8th Cir. 1973). On that date, the federal government transferred by deed, pursuant to the power' and authority contained in the Federal Property and Administrative Services Act of 1949, as amended, one hundred five acres of Fort Lincoln to United Tribes of North Dakota Development Corporation. United Tribes is a private nonprofit North Dakota corporation. The lands it acquired lie between federal property used by the General Services Administration and the United States Army Reserve; these together constitute Fort Lincoln.

On October 27, 1973, Franklin Dale Goings and Seth Peter Bad Cob allegedly assaulted Robert J. Slominiski on the land owned by United Tribes. The United States filed an information charging the defendants with assault within “the special * * * territorial jurisdiction of the United States,” in violation of 18 U.S.C. § 113(c). On motion by the defense, the United States District Court for the District of North Dakota ruled that the United States had divested itself of exclusive jurisdiction and dismissed the criminal complaints.

The trial court held that the deed conveyed a fee simple subject to conditions subsequent. No interest in the land remained in the United States. The United States retained only a chose-in-aetion, requiring affirmative steps to retake the land, which could not, the court reasoned, be the basis for exclusive jurisdiction.

The trial court further held that the reserved right to use of the land conveyed during periods of emergency was only a declaration of procedure to facilitate the government’s preexistent power of eminent domain. It was not a continuing interest in the land upon which exclusive jurisdiction could be predicated.

The property in question was acquired by the United States for a fort in 1898, the State of North Dakota having given its consent to the purchase some three years earlier. N.D.C.C. § 54-01-07. As a result of the acquisition with consent, the Congress of the United States had the “power to exercise exclusive Legislation” over the acquired lands. See, Article I, Section 8, Clause 17 of the United States Constitution. This right is equivalent to exclusive jurisdiction. Surplus Trading Co. v. Cook, 281 U.S. 647, 652, 50 S.Ct. 455, 74 L.Ed. 1091 (1930). The purpose of Clause 17 is well stated in United States v. Tucker, 122 F. 518 (6th Cir. 1903):

It is, indeed, most essential for many public purposes (as it was in the case of the District of Columbia) that the United States shall have and own numerous places upon which to conduct the vast business of the government, and it would be folly to expect the best results if any other power could exercise a conflicting and possibly an annoying and interfering authority over those places. Luckily, this was demonstrated to be the case at a period just before the completion of the draft of the Constitution of the United States [.] * * * The interests involved are national, and all legislation affecting them should be by national, and not by mere local, authority.

Id. at 522.

The sovereignty of the United States over property acquired pursuant to Clause 17 ends with the reasons for the existence of the power and the disposition of the property. S.R.A. v. Minnesota, 327 U.S. 558, 564, 66 S.Ct. 749, 90 L.Ed. 851 (1946); cf., Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 542, 5 S.Ct. 995, 29 L.Ed.2d 264 (1885); LaDuke v. Melin, 45 N.D. 349, 177 N.W. 673 (1920).

Here, the reasons for the existence of the power are no longer present. The purchaser, United Tribes, is a private enterprise which owns and uses the land exclusively for educational purposes. The conditions subsequent imposed by the United States did no more than insure that the sale was in accordance with the statutory authorization for the disposal of federal lands. No federal function is performed and no continuing federal involvement in the lands is maintained.

The more difficult question, however, is whether the United States has disposed of the property to United Tribes in a manner sufficient to divest it of exclusive jurisdiction. To put the question differently, does the covenant reserving in the United States the right to use during periods of emergency require a holding that exclusive jurisdiction was not relinquished? It is settled that more than, private use of the lands is necessary to revest jurisdiction in the State. Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 84 S.Ct. 857, 11 L.Ed.2d 782 (1964); Arlington Hotel Co. v. Fant, 278 U.S. 439, 49 S.Ct. 227, 73 L.Ed. 447 (1929); Benson v. United States, 146 U.S. 325, 13 S.Ct. 60, 36 L.Ed. 991 (1892); United States v. Redstone, supra. In addition, the land must no longer be under the ultimate control of the federal government ready for use when needed for the military purposes for which it was dedicated. See, Humble Pipe Line Co. v. Waggonner, supra, 376 U.S. at 372, 84 S.Ct. 857; Benson v. United States, supra, 146 U.S. at 331, 13 S.Ct. 60.

Whether the United States will ever exercise the reserved right to use the lands during periods of emergency is a contingency too remote for prediction. Its exercise, however, will make the United States the lessee of United Tribes. The sale transferred to United Tribes ultimate control over the lands and recognizes that any use by the United States is temporary. We agree with the trial court’s holding that this covenant is a declaration of procedure to facilitate the government’s power of eminent domain. The United States no longer holds the property intact dedicated to the purposes and objects of Clause 17. Jurisdiction must revert to the State.

We realize, in affirming the decision of the trial court, that checkerboard jurisdiction results within the confines of Fort Lincoln. But this should pose no problem in that the existence of Fort Lincoln itself creates checkerboard jurisdiction. Furthermore, the lands, now being part of North Dakota, will be subject to and benefit from a complete body of state law. No longer will the federal law, incomplete in the regulation of private activity, be the sole source of order.

Affirmed.

      . The deed is set forth in full in the trial court’s opinion reported at 372 F.Supp. 811 (D.N.D.1974). Briefly, the conditions require : (1) that for a period of thirty years, the property -will be used continuously for educational purposes; (2) that during the first thirty years, the Grantee will not encumber, hypothecate, lease, mortgage, resell or otherwise dispose of the property with the consent of the United States; (3) that during the first thirty years, the Grantee will file periodic reports on the operation and maintenance of the property; (4) that during any period in which financial assistance is extended, the Grantee will comply with the Civil Bights Act of 1964, and the regulations imposed thereunder; and (5) that during any period in which financial assistance is extended, the Grantee will comply with the provisions of the National Environmental Policy Act of 1969.

      . The covenant requires that the emergency be declared by the President of the United States or by the Congress of the United States. It further provides that if the reserved right to use is exercised within the first thirty years, the Grantor will (1) bear the cost of maintenance of the property used exclusively, (2) pay a fair share of the cost of maintenance of' the property used nonex-elusively, (3) pay a fair rent for the use of improvements made by the Grantee without Government aid, and (4) be responsible for any damage to the property caused by its use, reasonable wear and tear and acts of God and the common enemy excepted. If the reserved right to use is exercised after the first thirty years, the Grantor, in addition to the above, will pay a fair rent for the property used.

      . The deed declared the property conveyed to be surplus to the needs of the Grantor. “Surplus property” is defined in 40 U.S.O. § 472(g) to be “ *. * * any excess property not required for the needs and the discharge of the responsibilities of all Federal agencies * *

      . 18 U.S.C. § 113(c) reads:
      Whoever, within the special * * * territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:
      * * * * *
      (c) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by fine of not more than $1,000 or imprisonment for not more than five years, or both.
      The “special territorial jurisdiction” is defined in 18 U.S.C. § 7(3) :
      The term “special * * * territorial jurisdiction of the United States”, as used in this title, includes:
      * ❖ * * *
      (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

      . The statute parallels, in all relevant respects, Article I, Section 8, Clause 17 of the United States Constitution. The effect of state consent with reservations is, therefore, not here presented. It is settled, however, that the state consent can be more restrictive than Clause 17. James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937) ; Silas Mason Co. v. Tax Comm’n, 302 U.S. 186, 58 S.Ct. 233, 82 L.Ed. 187 (1937).

      . Clause 17 reads in relevant part:
      The Congress shall have Power * * * To exercise exclusive Legislation * * * over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Ports * * * and other needful buildings[.]

      . See, 40 U.S.C. § 484 (k).

      . 10 U.S.C. § 2683 provides that the Secretary of a military department may relinquish to a State the legislative jurisdiction of the United States over lands or interests under his control in that State. Had the United States taken advantage of this statute, the problem presented here could have been obviated.

      . See, note 2, supra.

      . See, Note, Federal Areas: The Confusion of a Jurisdictional-Geographical Dichotomy, 101 U.Pa.L.Rev. 124 (1952) (review of the anomalous status of federal enclave residents who live within a state without being residents thereof and the incomplete ameliorative legislation of Congress) ; see also, Murray v. Gerrick & Co., 291 U.S. 315, 54 S.Ct. 432, 78 L.Ed. 821 (1934).


author: PER CURIAM:

text:
    Victor MANSOUR and Helen Mansour, Appellants, v. REEVES BUILDING, INC., et al., Appellees.
    No. 74-1212.
    United States Court of Appeals, Fourth Circuit.
    Submitted Sept. 30, 1974.
    Decided Oct. 24, 1974.

      Robert G. Wolpert, Charleston, W. Va., on brief for appellants.
    Arthur T. Ciccarello, W. T. O’Farrell and Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief for appellees.
    Before BRYAN, Senior Circuit Judge, WINTER and RUSSELL, Circuit Judges.
   PER CURIAM:

Fraudulent conversion of plaintiffs’ personal property with incidental personal injuries is here laid to the defendants and damages are sought from them. On defendants’ motion for summary judgment the District Court found that the property had been lawfully seized and sold by the defendants on January 18, 1971 in the proper enforcement of a storage lien accorded them by the laws of West Virginia. Dispositively, the Court concluded that since the instant action had not been filed until January 24, 1973, it was barred by the State’s two-year statute of limitations, Code ch. 55, art. 2, § 12. Judgment followed on the motion and we perceive no error.

Upon the District Judge’s Memorandum Order we affirm. Mansour et al. v. Reeves Buildings, Inc. et al., 383 F.Supp. 482 (S.D.W.Va.1973).

Affirmed.


author: CUMMINGS, Circuit Judge.

text:
    Mr. Bruce NICKERSON et al. Plaintiffs-Appellants, v. Mr. Scott THOMSON et al., Defendants-Appellees.
    No. 73-2075.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 24, 1974.
    Decided Nov. 1, 1974.

      Robert J. Vollen, Marshall Patner, Chicago, 111., for plaintiffs-appellants.
    Jerome N. Robbins, Chicago, 111., for defendants-appellees.
    Before SWYGERT, Chief Judge, RIVES, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

      . Senior Circuit Judge Richard Taylor Rives of the Fifth Circuit is sitting by designation.

   CUMMINGS, Circuit Judge.

This civil rights action was brought by three students needing “special education” in Illinois School District No. 202, which is served by Evanston Township High School in Evanston, Illinois. Other plaintiffs include two students of Illinois School District No. 65, the feeder primary system to School District No. 202, who allege they will also need special education when enrolled in School District No. 202. Additional plaintiffs include parents of these five students. All plaintiffs purport to represent others in their classes. The defendants are the Superintendent of School District No. 202 and the president and other members of the School Board of that District.

The amended complaint asserts that the plaintiffs’ rights have been violated because defendants fail to fulfill the mandate of the state statutes to provide adequate special education to physically handicapped children, maladjusted children, children with specific learning disabilities, educable mentally handicapped children, trainable mentally handicapped children, speech defective children, and multiply handicapped children. According to the complaint, ten additional teachers and other workers in various categories should have been hired in the 1972-1973 school year for special education purposes at a cost of $50,000 per year (after state reimbursement) in order to meet the requirements of Illinois law, whereas the Superintendent proposed to hire only two additional personnel for these programs.

The complaint further asserts that plaintiffs’ Fifth and Fourteenth Amendment rights are violated by defendants’ allocation of the resources of the special education programs that do exist. The programs are allegedly administered in a way that divides the children in need of special education into three groups: those who receive adequate special education, those who receive some, but not adequate, special education and those who receive no special education at all. Plaintiffs contend that no rational basis is used so to divide the children. It is-alleged, therefore, that defendants have violated state law, thus discriminating against plaintiffs and depriving them of equal treatment, in violation of the federal Constitution. No attack is made upon the statute. Declaratory and mandatory relief was sought.

Plaintiffs view their complaint as asserting two claims, one a federal cause of action and the other a pendent state claim. While the pleading is inartful, plaintiffs’ allegations are sufficient to provide notice to defendants that they may be required to defend both a federal claim that they inequitably allocated existing special education resources among students in need thereof in violation of the Fourteenth Amendment and a state claim that they failed to fulfill their statutory duty to provide adequate special education to all children who need it.

Defendants filed a lengthy motion to dismiss the amended complaint. Thereafter the district court rendered an unreported memorandum opinion and, after noting that the complaint complied with Rule 8(a) of the Federal Rules of Civil Procedure, ordered the complaint dismissed on abstention grounds “in deference to the parties obtaining a state court ruling on the defendants’ obligations” under the applicable Illinois statutes. This ground had not been asserted in the motion to dismiss. We reverse.

We sympathize with the difficulties, faced by the district court in deciding whether to apply the doctrine of abstention. However, at least since Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444, the doctrine of abstention permits federal courts to decline to exercise jurisdiction only in narrowly limited special circumstances. Federal courts may, for example, abstain out of regard for the interests and sovereignty of the state and to avoid needless resolution of a constitutional question. In this case, however, language from United States v. Livingston, 179 F.Supp. 9, 12-13 (E.D.S.C.1959; statutory three-judge court), affirmed sub nom. Livingston v. United States, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719 (quoted and approved in Zwickler, 389 U.S. 241, 251, 88 S.Ct. 391, 19 L.Ed.2d 444), is applicable :

“Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of the federal court to decide the federal question presented to it.”

The primary statute involved is Ill.Rev.Stats.1973, ch. 122, § 14-4.01, which provides:

“Special educational facilities for handicapped children — Types of children included. School boards of any school districts that maintain a recognized school, whether operating under the general law or under a special charter, may until July 1, 1969, and shall thereafter, subject to any limitations hereinafter specified, establish and maintain such special educational facilities as may be needed for one or more of the types of handicapped children defined in Sections 14-1.02 to 14-1.07 of this Article who are residents of their school district, and such children, residents of other school-districts as may be authorized by this Article” (emphasis added).

The statute clearly imposes a mandatory duty on defendants to establish and maintain needed special educational facilities. Such establishment and maintenance involve state action and, therefore, the requirements of the Fourteenth Amendment must be met. Consequently, there is no basis for abstention in the hope that the statute could be construed in the state courts to render it unnecessary to decide the Fourteenth Amendment issues. Smith v. Cherry, 489 F.2d 1098, 1101 (7th Cir. 1973), certiorari denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214; compare Reid v. Board of Education of City of New York, 453 F.2d 238, 242 (2d Cir. 1971). As in Zwiekler, these plaintiffs should not be forced to “suffer the delay of state court proceedings” (389 U.S. at 252, 88 S.Ct. at 397) where the discrimination has already seemingly persisted in two academic years.

Although defendants rely on their power to adopt an appropriate budget under Ill.Rev.Stats.1973, ch. 122, § 17-1 and the implied discretion thereunder to insulate them from this suit, another provision of the School Code, Section 14-6.01, makes each district “financially responsible” for the education of handicapped children through special education facilities. Section 14-6.01 of the Code also requires school boards to comply with all rules and regulations established by the Superintendent of Public Instruction. Those rules and regulations require defendants to provide a comprehensive program of special education for exceptional children. See Appendix hereto. Because of the clarity of these compulsory requirements, we cannot apply the exception to abstention acknowledged in Federal Savings and Loan Insurance Corporation v. Krueger, 435 F.2d 633, 637 (7th Cir. 1970), “when the exercise of jurisdiction by the federal court would disrupt a state administrative process.” As in Krueger, this suit will not so interfere with or disrupt the state administrative process as to call for abstention. Since forms of forbidden discrimination have been alleged, the district court is obligated to resolve whether the key Illinois statute has been administered in a manner that violates the Fourteenth Amendment. Smith v. Cherry, supra, 489 F.2d at 1102; Pennsylvania Ass’n for Retarded Children v. Commonwealth of Pa., 343 F.Supp. 279, 298 (E.D.Pa.1972; statutory three-judge court).

We are reinforced in our conclusion by the Supreme Court’s most recent treatment of abstention in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224. There the Court held that an assertion that the federal court should defer to the state courts-on the basis of comity did not justify abstention. As in Procunier, there is no uncertain issue of state law, for no reasonable interpretation of the Illinois School Code would avoid or modify the federal constitutional question presented.

On remand the district court must proceed to try plaintiffs’ claim that defendants’ administration of the Illinois statutes dealing with special education violates the Fourteenth Amendment. If the court finds such a violation, it should order that the distribution of the special education resources presently available be made in accordance with the Constitution.

With regard to the pendent state claim seeking full funding, a sufficient number of teachers, and the facilities necessary to provide all children in need with an adequate special education program, the district court is not so restricted. The reasons for which it originally abstained as to both claims and the desirability of avoiding undue federal interference with local finances may lead the district court, in its discretion, to refuse to hear the purely state claim. United Mine Workers v. Gibbs, 383 U.S. 715, 725-727, 86 S.Ct. 1130, 16 L.Ed.2d 218.

Defendants’ assertion that abstention was proper because plaintiffs could vindicate their claims individually through state administrative proceedings is not persuasive. To require plaintiffs so to proceed would essentially require them to exhaust their state administrative remedies, and exhaustion is not usually required in civil rights actions. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622.

Reversed and remanded.

APPENDIX

The rules and regulations governing the administration and operation of special education relied upon by plaintiffs include the following:

“ARTICLE II: RESPONSIBILITY FOR SPECIAL EDUCATION

2.01 The local school district shall be responsible for providing and maintaining appropriate and effective educational programs for all children who are resident therein.
“2.02 Each local school district, independently or in cooperation with other districts, shall provide a comprehensive program of special education for those exceptional children who are between the ages of three and twenty-one who are resident in the district. [9 factors of a comprehensive program are then listed.] * * *

“ARTICLE III: THE ESTABLISHMENT AND ADMINISTRATION OF SPECIAL EDUCATION

3.01 Each local school district shall establish and maintain special education instructional programs and supportive services which meet the educational needs of children with the following exceptional characteristics:
1. Auditory, visual, physical, or health impairment
2. Speech or language impairment
3. Deficits in the essential learning processes of perception, memory, attention, or motor control
4. Deficits in intellectual development and mental capacity
5. Educational maladjustment related to social or cultural circumstances
6. Affective disorders or adaptive behavior which restricts effective functioning * * *

“ARTICLE IX: THE DELIVERY OF SPECIAL- EDUCATION SERVICES: IDENTIFICATION AND EVALUATION OF EXCEPTIONAL CHILDREN

“9.01 The educational rights of exceptional children and the availability of special education programs and services shall be made known to the public.
“9.02 The local school district shall seek out and identify all exceptional children who may be in need of special educational assistance * * *
4. All children who may require special education services shall be referred to the designated resource for evaluation and appropriate educational planning.”

      . Apparently plaintiffs mean to refer only to the due process and equal protection clauses of the Fourteenth Amendment. Their brief addresses only the equal protection clause of the later amendment but reserves other Fourteenth Amendment claims for trial.

      . This type of discrimination was not involved in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16, and in fact defendants’ brief does not rely thereon.

      . Quoting from Allegheny County v. Frank Mashuda Company, 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d 1163.

      . The mandatory relief requested includes an order requiring defendant School Board to amend its 1972-1973 budget and adjust future budgets to provide special education to all children in School District No. 202 needing such education and requiring the defendant Superintendent to provide the necessary personnel and facilities.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sharif Bishara SIRHAN, Defendant-Appellant.
    No. 73-2571.
    United States Court of Appeals, Ninth Circuit.
    Jan. 31, 1974.

      John K. Van De Kamp, Fed. Public Defender, John W. Hornbeck, Kenneth W. Collins, Deputy Fed. Public Defenders, Los Angeles, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., P. G. Flynn, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY and TRASK, Circuit Judges, and NIELSEN, District Judge.

       Of the Southern District of California.

   OPINION

PER CURIAM:

Appellant was convicted of a violation of 18 U.S.C. § 876, which makes it a crime to threaten injury to any person by a communication sent by mail. Appellant was charged with and convicted of sending a letter to Secretary of State William P. Rogers in which he threatened to shoot and kill Israeli Prime Minster Golda Meir on March 1, 1973, a date when Mrs. Meir was scheduled to be in the United States on official business. The letter was. signed “P.L.O.,” presumably for “Palestinian Liberation Organization.”

I

Appellant contends that it was reversible error for the trial court to refuse appellant’s requested instruction on wilfulness.

Appellant is correct in stating that specific intent is required for conviction under this statute. United States v. LeVison, 418 F.2d 624 (9th Cir. 1969) and United States v. Holder, 302 F.Supp. 296 (D.Mont.1969), aff'd. per curiam 427 F.2d 715 (9th Cir. 1969). But appellant goes further and states that wilfulness must be alleged, proved, and instructed on before specific intent can be found to exist. Appellant’s argument is wholly without merit.

Title 18, U.S.C. § 876 (paragraph 3) requires proof beyond a reasonable doubt of only two elements for conviction thereunder. First, the defendant must have written and mailed a letter (or other communication) containing a threat to injure another person. Secondly, he must have knowingly caused the letter to be deposited in the mails. Petschl v. United States, 369 F.2d 769 (8th Cir. 1966).

The specific intent necessary to prove the second element exists whenever defendant knowingly deposits the threatening letter in the mails. The statute here violated does not require that the defendant “knowingly and wilfully” deposit the letter. If he knowingly mails such’ a letter, that is all which is required to prove the requisite specific intent.

The trial judge here instructed the jury as to specific intent, using the word “knowingly,” and explained what both meant. That is all that he was required to do. A “wilfulness” instruction, together with a “knowingly” instruction the trial court gave, was not only not required, but would have been superfluous and likely confusing to the jury.

II

Appellant next urges reversal of his conviction based on the trial court’s refusal to allow him to introduce letters which he had written at an earlier time. These letters were written several years before the letter which is the basis of the conviction. Written to national and international leaders, these prior letters protested against the conditions of the Palestinian refugees and the Palestinian situation generally. These letters contained no threats and were signed by the appellant with his own name.

The trial court sustained objection to the introduction of these letters on several grounds. It determined that any relevance which the letters may have had was clearly outweighed by confusion to the jury. It also found that the letters were not legally relevant. In its ruling the trial court stated:

“The documents are clearly hearsay and clearly too remote to be of any probative value as an indication of defendant’s state of mind at the time of the writing of the letter here in issue.”
“At most, Defendant’s [letters] indicate a different state of mind at the time they were written, since they contain no threat to anyone’s life. And in this Court’s view the offered evidence has little, if any, probative value to any issue in this case, and particularly has little, if any, probative value on the question of intent of defendant with respect to the crime here charged.” (R.T. 319)

Absent a clear showing of abuse of discretion, this Court will not disturb the judgment of the trial judge that certain evidence is legally irrelevant and therefore inadmissible.

There were good reasons not to admit this evidence, as the trial judge noted, therefore we find no abuse of discretion and no error.

Affirmed.

      . 18 U.S.C. § 876 (paragraph 3) reads: “Whoever knowingly so deposits or causes to be delivered as aforesaid, any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

      . The jury was instructed: “To establish specific intent the Government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.”
      “It is not necessary for the prosecution to prove that the defendant knew that a particular act or failure to act is a violation of law. Unless and until outweighed by evidence in the case to the contrary, the presumption is that every person knows what the law forbids, and what the law requires to be done.” (R.T. 364-365)

      . A “wilfulness” instruction talks about bad purpose either to disobey or to disregard the law, while a “knowingly” instruction talks about defendant’s knowingly doing an act which the law forbids purposely intending to violate the act. It appears that a “wilful” violation of the law requires more of a specific intent, though the difference appears to be more one of semantics than actual substance. This is not to say that one or the other instruction may be given. If the statute requires a wilful intent for conviction, then an instruction on wilfulness must be given, and vice versa.

      . The Government attempted to introduce an earlier letter which appellant wrote and signed with his own name allegedly threatening the life of Israeli Defense Minister Moshe Dayan. Upon appellant’s objection the Court refused to admit the letter into evidence for the very same reasons it refused to allow appellant to introduce the letters at issue.

      . As one of the issues presented, appellant stated that § 876 requires specific intent. However, appellant urges no reversal on this issue in apparent recognition that the eourt gave a specific intent instruction thereby necessitating proof of specific intent.


author: WIDENER, Circuit Judge:

text:
    Mary W. VANCE, Appellant, v. CHESTER COUNTY BOARD OF SCHOOL TRUSTEES et al., Appellees.
    No. 73-2312.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1974,
    Decided Oct. 2, 1974.

      James L. Felder, Columbia, S. C., for appellant.
    Charles Porter, Columbia, S. C. (John R. Justice, Chester, S. C., and Glenn, Porter & Sullivan, Columbia, S. C., on brief), for appellees.
    Before CRAVEN and WIDENER, Circuit Judges, and WARD, District Judge.
   WIDENER, Circuit Judge:

Mary W. Vance, a black citizen of Chester County, South Carolina, brought this suit under 42 U.S.C. § 1983, seeking reinstatement as a public school teacher and damages against the Chester County Board of School Trustees. The complaint alleged that the Board’s failure to reemploy her for the 1971-72 school year violated constitutional guarantees of due process and equal protection. Specifically, she contended that the notice and hearing accorded her were unconstitutionally inadequate, and that she had been dismissed because of her race. In response to the defendant’s motion, the district court granted summary judgment. Mrs. Vance has appealed. We affirm.

Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment only when “ . . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . . ” But summary judgment should be entered “ . only where the moving party is entitled to a judgment as a matter of law, where it is quite clear what the truth is, [and where] no genuine issue remains for trial . . . [for] the purpose of the rule is not to cut litigants off from their right of trial if they really have issues to try.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962) ; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944).

From the papers and depositions, the following facts emerge. Mrs. Vance was employed in the public schools of Chester County, South Carolina for approximately 26 years. Her contract contained no provision for formal tenure, and instead was required to be renewed annually upon appropriate recommendation by the Superintendent of Chester County Schools to the Chester County Board of School Trustees.

During the school year 1968-69, the final year of a segregated school system in Chester County, Mrs. Vance was employed as a teacher at Landsford-Lewis-ville Elementary School, an all black institution. Her principal, who was black, completed a fitness report dated February 12, 1969 which noted that Mrs. Vance required improvement in eight of nine subcategories relating to “Instructional Competence.” She was also graded as requiring improvement in four of six subcategories relating to “Professional Attitudes and Growth.”

In 1969-70, the first year of a unitary school system in Chester County, Mrs. Vance was reemployed at Gayle Elementary School. But, because she had only a “C” teaching certificate, she worked as a “teacher’s aide” to the first grade. Her principal reported in March 1970 that she required improvement in five subcategories of instructional competence and that her performance was unsatisfactory in a sixth. In “Professional Attitudes and Growth,” she was also marked as requiring improvement.

During the 1970-71 school year, Mrs. Vance obtained a “B” certificate, and she was again reemployed, this time as a second grade teacher at Dora Jones Elementary School. During the school year, her work was observed on several occasions and her superiors discussed with her ways in which she could improve her performance. Following one such period of observation on January 22, 1971, her supervisors discussed with her in considerable detail her various teaching deficiencies, including an overall lack of classroom planning and a failure to make provision in some way for children’s individual strengths and weaknesses. It was emphasized to Mrs. Vance, as she had been previously instructed, that she had to establish written lesson plans and maintain index cards on each child. It was further suggested that she visit other classrooms to observe techniques utilized by other teachers.

Following the evaluation and discussion of January 22, 1971, Mrs. Vance was notified orally, by the Elementary Supervisor, on March 4, 1971, that she was not being recommended for reemployment. This was confirmed by letter from her principal, March 8, 1971. On March 12, 1971, she was notified that the Chester County Board of School Trustees had not reelected her as a teacher. Thereafter, on April 23, 1971, Mrs. Vance wrote the Chester County Board of School Trustees asking that they reconsider the matter. In a letter of May 5, 1971, the Board informed Mrs. Vance that a hearing had been set for May 10, 1971, and invited Mrs. Vance to be present. She telephoned on May 7th to indicate she would be present.

The hearing on May 10 was attended by Board members, Mrs. Vance, and school administrators. Neither Mrs. Vance nor the Board sought assistance from counsel. Mrs. Vance presented her case fully and was permitted to leave the hearing to obtain from her classroom at Dora Jones Elementary School materials which she felt would support her position. The matters which concerned the Board involved the same shortcomings which had been discussed with Mrs. Vance in the January 22, 1971 conference, the lack of lesson plans, the need for index cards on each child, and the need to view other teachers in their classrooms.

Mrs. Vance was subsequently notified by letter of May 17, 1971 that the Board had voted unanimously to uphold its previous decision not to offer her a contract to teach in Chester County for the ensuing year.

Thereafter, however, she was offered a non-teaching position as a study hall monitor for the 1971-72 school year. This opportunity came about late in the summer of 1971, when scheduling problems at the school created the need for an additional monitor. She accepted this position and served throughout the year at a reduced salary. At the close of the 1971-72 school year, the position of study hall monitor was eliminated, and Mrs. Vance was not reemployed. Subsequently, on May 30, 1972, she brought this suit.

In her complaint, Mrs. Vance contends that she has been discriminated against on the basis of her race. Yet, initially, we note that the record reflects no effort by the Chester County Board to exclude blacks from teaching positions. In the spring of 1971, Mrs. Vance was one of eight teachers who were not recommended for reemployment, four of whom were white and four black. Thus, unlike United States v. Chesterfield County School District, 484 F.2d 70 (4th Cir. 1973), we are not confronted with a situation in which a disproportionately large number of black teachers have been suddenly discharged in the midst of a transition to a unitary school system.

When asked if the school board treated white teachers any differently than black teachers in employment practices, Mrs. Vance stated she did not know. She did claim that her assignment in 1971-72 as a high school study hall monitor was outside her range of experience and unfair to her, but this occurred after the non-renewal of her teaching contract. Indeed, this position had been offered primarily as a favor to her. When asked how she was treated unfairly because of her race, she stated: “I would say that my rights have been violated.” But when asked how these rights had been violated, she stated she did not know.

Mrs. Vance further claims that the notice and hearing accorded her failed to comport with the fourteenth amendment requirements of procedural due process. Specifically, she asserts that due process requires that she be given written notice of the charges resulting in her non-renewal, that she be represented at the hearing by an attorney, and that the hearing itself be conducted before any action is taken by the Board on the renewal or non-renewal of her contract.

In Grimes v. Nottoway County School, 462 F.2d 650, 653 (4th Cir. 1972), a case involving similar issues, we held that procedural due process requires adequate notice, a specification of the charges, an opportunity to confront adverse witnesses, and an opportunity to be heard in one’s own defense. But, importantly, Grimes also acknowledged that “[T]he sufficiency of the procedures employed in any particular situation must be judged in the light of the parties, the subject matter and the circumstances involved”, and that “[W]hen no established procedures exist the school may adopt any method that is adequate to comply with the above mínimums”. Grimes, supra, at 653, quoting from Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir. 1970).

The record shows that Mrs. Vance’s work had been less than satisfactory for a long period of time, and this had been discussed with her on several occasions in the context of improving her performance. These generalized discussions culminated on January 22, 1971 in a very specific discussion of her deficiencies. Mrs. Vance admits this occurred and further admits these specific deficiencies also formed the basis of the discussion when her case was heard on May 10, 1971 before the Board. Consequently, on these facts, the district court, properly we feel, held that the oral notice of the reason for not renewing her contract was adequate.

Similarly, we hold that in light of the fact that neither party at the hearing sought the assistance of counsel, and in view of the informality of the proceedings and the lack of any pre-established procedures, due process does not require the presence of counsel under these circumstances. “The school may adopt any method that is adequate to comply with [due process] mínimums.” Grimes, supra, 462 F.2d at 653.

Lastly, the question arises whether an evidentiary hearing should have been accorded prior to the Board’s decision not to renew Mrs. Vance’s contract. The resolution of this issue depends on a balancing process in which the Board’s interest in expeditious removal of an unsatisfactory employee is weighed against the interest of the affected employee in continued public employment. Goldberg v. Kelly, 397 U.S. 254, 263-266, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). As the Supreme Court noted in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961), “ . . . consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.”

Here, the public interest is the maintenance of employee competence and efficiency. These factors are essential if government is to perform its responsibilities effectively and economically. Thus, government must have wide discretion and control over the management of its personnel and internal affairs. See Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743 (1961); Arnett, infra, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15. And this necessarily includes the ability to remove those employees whose conduct hinders efficient operation.

Generally, the public employee’s countervailing interest is the continuation of his employment pending an evidentiary hearing. Yet, in Mrs. Vance’s case, the period of employment at stake before the Board involved the subsequent 1971-72 school year, which was yet to come. No interruption of her 1970-71 contract was either accomplished, contemplated or suggested. Thus, Mrs. Vance has suffered not even a temporary interruption of income, without notice or hearing, from the County Board’s initial action on March 8, 1971 and the subsequent May 10, 1971 evidentiary hearing. Any possible deprivation is considerably less severe than that involved in Goldberg v. Kelly, for example, where termination of welfare benefits to the recipient would have occurred in the face of “brutal need.” 397 U.S. at 261, 90 S.Ct. 1011. Indeed, as the Supreme Court noted in that case, “ . the crucial factor in this context — a factor not present in the case of . the' discharged government employee is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.” Id. at 264, 90 S.Ct. at 1018. Nor does this case present a deprivation as severe as that involved in Huntley v. North Carolina State Board of Education, 493 F.2d 1016 (4th Cir. 1974), where an individual’s teaching certificate was revoked.

Subsequent to oral argument of this case, the Supreme Court decided Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, 1974, which is dispositive of the issue here as to the timeliness of the hearing so far as a “liberty interest” is concerned. In that case, where an employee had been discharged for making false statements about an employer, the court upheld the validity of the Lloyd-Lafollette Act, now 5 U.S.C. § 7501. Under the statute and regulations issued in accordance with it, federal employees, who may be discharged only for cause, are afforded an adversary type hearing only after the initial decision to discharge the employee has been made. The court upheld the procedure stating (at p. 157, 94 S.Ct. at p. 1646), “[s]ince the purpose of the hearing in such a case is to provide the person ‘an opportunity to clear his name,’ a hearing afforded by administrative appeal procedure after the actual dismissal is a sufficient compliance with the requirements of the Due Process Clause.” Here, it must be remembered, Mrs. Vance not only received and attended a hearing, but after notice, and before her termination as a teacher became effective, for her employment did not terminate until the end of the school year which followed both the initial decision not to review her contract and the hearing before the School Board.

The essential fairness of the hearing is aptly described in the plaintiff’s deposition :

Q: “So it would be fair to say, then, Mrs. Vance, that they listened to your side of the story and they looked at the evidence that you had to present concerning the complaint that was being made against you?”
A: “Yes.”
Q: “The Board considered these matters and you had full opportunity to present your side of the story?”
A: “Yes.”

On balance, then, we conclude that a prior evidentiary hearing was not required, and that the action of the Board comported with due process.

Affirmed.

      . The requirements of procedural due process apply only to deprivation of interests encompassed by the fourteenth amendment’s protection of liberty and property. When these protected interests are implicated, the right to notice and hearing is paramount. E. g., Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969). In the instant case, Mrs. Vance has made no claim that allegations have been made regarding her “good name, reputation, honor, or integrity.” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). Although she does contend that her reputation lias been damaged by her non-retention, such a claim without more does not constitute a deprivation of liberty. Kota v. Little, 473 F.2d 1 (4th Cir. 1973). Nor is there any claim of any other constitutionally impermissible action affecting her liberty interest on the part of the defendants, other than the alleged denial of procedural due process.
      Although she had been employed approximately 26 years, Mrs. Vance had no tenure rights, either contractual or statutory, to continued employment. Nevertheless, as the Supreme Court, in Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972) observed, “absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a ‘property’ interest in reemployment.” See also Johnson v. Fraley, 470 F.2d 179 (4th Cir. 1972). Thus, while whether or not Mrs. Vance had a legitimate claim of entitlement to a teaching position in Chester County may be debatable, we shall assume for the purposes of argument that she had a property interest sufficient to require the Board to grant her a hearing when it declined to renew her contract of employment.

      . As in Grimes, where oral notice was found adequate, at no time does it apj)ear that she requested a written specification of the charges against her.


author: LIVELY, Circuit Judge.

text:
    Harry GIBSON et al., Plaintiffs-Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF DETROIT, Defendant-Appellee.
    No. 74-1334.
    United States Court of Appeals, Sixth Circuit.
    Decided Oct. 17, 1974.

      Lloyd E. Powell, Detroit, Mich., Allan Neef, Darden, Neef & Heitsch, Robert Houston, Harry Gibson, Detroit, Mich., for plaintiffs-appellants.
    Robert C. Winter, Clark, Klein, Winter, Parsons & Prewitt, Warren D. Couger, Detroit, Mich., for defendant-appellee.
    Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.
   LIVELY, Circuit Judge.

The plaintiffs in this action are the owners of real estate on which the defendant holds mortgages that are insured by the Federal Housing Administration (FHA). Each of the mortgages provides that the mortgagors will pay each month to the mortgagee a single payment which includes, in addition to accrued interest and principal sufficient to amortize the loan, an amount in escrow sufficient to pay FHA mortgage insurance premiums, taxes and special assessments and premiums on policies of fire and other hazard insurance covering the mortgaged premises as they come due. The complaint alleges that under federal regulations the defendant is only permitted to collect monthly from each mortgagor an amount equal to Via of the estimated annual taxes, assessments, insurance premiums and other charges, but that the defendant has. collected amounts in excess of Yis of the reasonable estimates of these charges. The complaint further charges that defendant has commingled amounts collected for escrow accounts with its other funds from which investments were made. The income earned on such investments, it is alleged, is retained by the defendant rather than being credited to the escrow accounts of the various mortgagors so as to reduce future escrow payments required to be made by them. It is contended that this results in unjust enrichment to the defendant.

Although it is claimed that the defendant was • guilty of other wrongful acts which resulted in damage to the plaintiffs, only two substantive issues were presented to the district court: (1) the alleged collection of excessive escrow deposits, and (2) failure to account to mortgagors for the earnings of escrow funds invested by the defendant. The plaintiffs sought to have this case proceed as a class action under Rule 23(b), Fed.R.Civ.P. However, the District Judge ruled that there was no necessity to determine the class action issue upon his finding that the named plaintiffs had presented no basis upon which their individual claims for relief could be granted. The plaintiffs have not argued the class action issue on appeal.

In their complaint and the amendments thereto the plantiffs pled various statutory grounds of jurisdiction. The district court dealt with the issue of jurisdiction in a preliminary order and memorandum opinion. Judge Feikens found that the district court had jurisdiction under 28 U.S.C. § 1337. This section confers jurisdiction on the district courts, without regard to a minimum amount, of all civil actions or proceedings arising under acts of Congress regulating commerce. Relying principally on Murphy v. Colonial Federal Savings and Loan Association, 388 F.2d 609 (2d Cir. 1967), the district court held that the commerce clause was a significant source of the power of Congress to regulate the savings and loan industry under the Home Owners’ Loan Act of 1933 as amended, 12 U.S.C. § 1461 et seq. The Federal Home Loan Bank Board enacts regulations pursuant to 12 U.S.C. § 1464 which control many of the operations of federal savings and loan associations. Among these regulations is 12 CFR § 545.6-11, which provides in part:

A federal association may require that an equivalent of one-twelfth of the estimated annual taxes, assessments, insurance premiums and other charges on real estate security be paid in advance ... to enable the association to pay such charges as they become due from the funds so received. . .

At the time that determination of jurisdiction was made by the district court one of the claims being pressed by the plaintiffs was that the defendant had collected amounts in excess of V12 of the estimated requirements for the enumerated charges in violation of the provisions of the quoted regulation. (The first claim was subsequently stricken with the acquiescence of plaintiffs.) Under the reasoning of the Murphy case (see also Davis v. Romney, 490 F.2d 1360, 1365-1366 (3rd Cir. 1974)), the allegation that the defendant was acting in violation of a lawful regulation of the Federal Home Loan Bank Board which deals with mortgagor-mortgagee relationships was sufficient to confer federal jurisdiction. Insofar as the Federal Home Loan Bank Board determines to regulate relationships between federal savings and loan associations and their borrowing and investing members, consideration of such regulations by federal courts is most likely to produce uniformity.

The defendant admitted that upon receiving the monthly payment from each mortgagor it credited the various accounts, including the escrow account of each mortgage and then deposited the payment in one of two general fund bank accounts maintained by the association. It further admitted that portions of these accounts were invested in short-term securities and that the escrow accounts of the plaintiffs were not credited with any part of the earnings from such investments. The district court found that there was no genuine issue as to any material fact with respect to these activities of the defendant, and that the defendant was entitled to judgment as a matter of law. The court found that “[t]he escrow funds are used exclusively for the purpose for which they were received.” The court concluded that no federal law required defendant to segregate escrow accounts or forbade the use of the escrow funds for investment. In a later unpublished memorandum opinion (filed December 5, 1973) the district court held that the plaintiffs had “presented no basis on which relief can be granted.”

The defendant urges us to reexamine the question of jurisdiction. Two regulations are relied upon by the plaintiffs in support of their claims concerning commingling and investment of escrow funds. FHA Regulation 24 CFR § 203.7(a)(3) merely provides that FHA may withdraw approval of any lending institution which uses escrow funds for any purpose other than that for which they were received. The other federal regulation relied on by plaintiffs, 24 CFR § 203.7(a)(2), deals with withdrawal of approval of non-supervised mortgagees for failure to segregate escrow funds received from mortgagors. This has no application to the claim of the plaintiffs since the defendant comes within the definition of a supervised institution in 24 CFR § 203.4(b) • and there is no regulation which requires supervised institutions to segregate escrow funds.

Unlike the regulation relied upon in Murphy v. Colonial Federal Savings and Loan Association, supra, and that relied upon by the district court in its memorandum opinion finding jurisdiction to hear the issue of alleged collection of excessive escrow deposits in this case, the two regulations which plaintiffs have cited in support of their second claim do not deal with relations between the plaintiffs as borrowing or investing members and the defendant as a lender or savings institution. Rather, these regulations were promulgated to enhance the security held by the defendant and to reduce the risk to FHA as insurer of mortgages. Nevertheless, though the court ultimately concluded that the federal regulations relied upon would not support a claim by the plaintiffs, this was a determination on the merits after a full evidentiary hearing and did not defeat jurisdiction. As the Supreme Court, speaking through Mr. Justice Black, stated in Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946):

Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. (Citations omitted.)

See Brown v. Strickler, 422 F.2d 1000 (6th Cir. 1970). Thus we believe that the district court correctly determined that it had jurisdiction of the controversy, even though it subsequently found no basis in federal statutes or regulations for granting relief to the plaintiffs.

The district court correctly granted summary judgment in favor of the defendant on the second issue. None of the statutes or regulations relied upon by the plaintiffs imposed the duty upon the defendant which plaintiffs contend was violated. See Umdenstock v. American Mortgage and Investment Co., 363 F.Supp. 1375, 1379-1380 (W.D.Okl.1973), reversed on other grounds, 495 F.2d 589 (10th Cir. 1974); cf. Kinee v. Abraham Lincoln Federal Savings & Loan Association, 365 F.Supp. 975 (E.D.Pa.1973).

In briefs and oral argument the plaintiffs have quoted extensively from a Mortgagee’s Guide issued by FHA and HUD and opinions of departmental counsel. It is not clear whether these materials were ever presented to the district court. In any event, such statements and opinions do not have the force or effect of regulations. Cf. Federal Housing Administration v. Morris Plan Company of California, 211 F.2d 756 (9th Cir. 1954). The plaintiffs also contend that the practices of the defendant violate the Truth in Lending Act, 15 U.S.C. § 1601 et seq. No claim based on this alleged violation was included in the pleadings or presented to the trial court. Thus we will not consider it other than to note in passing that 15 U.S.C. § 1605(e)(3) provides that escrows for future payment of taxes and insurance are not included in the computation of a finance charge in connection with mortgage loans.

In addition to the claims already discussed herein, the plaintiffs sought recovery for breach of an express contract, unjust enrichment and breach of fiduciary responsibility. The plaintiffs sought to litigate these claims under the court’s pendent jurisdiction. However, the district court declined to exercise pendent jurisdiction with respect to these claims in view of its holding that the plaintiffs were not entitled to relief on their claims which were based on federal statutes and regulations. In the absence of a substantial federal claim related to asserted state claims in such a way that the entire action may properly be deemed one “case,” federal courts do not have jurisdiction over purely state claims. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 59, 15 L.Ed.2d 58 (1966). Dismissal of all federal claims before trial requires dismissal of state claims as well. Id. at 726, 86 S.Ct. 59. A state court is the proper forum for adjudication of issues of general law, particularly where questions of fiduciary relationships are involved.

The judgment of the district court is affirmed on the basis of the opinion reported at 364 F.Supp. 614.

      . Gibson v. First Federal Savings and Loan Association, 347 F.Supp. 560 (E.D.Mich.1972).

      . Gibson v. First Federal Savings and Loan Association, 364 F.Supp. 614 (E.D.Mich.1973).


author: PER CURIAM.

text:
    Clemens R. SIERAKOWSKI, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 73-2054.
    United States Court of Appeals, Sixth Circuit.
    Decided Oct. 18, 1974.

      John R. Carney, Livonia, Mich., for plaintiff-appellant.
    Ralph B. Guy, Jr., U. S. Atty., Michael D. Gladstone, Detroit, Mich., for defendant-appellee.
    Before LIVELY and ENGEL, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

This is an appeal from an order of the United States District Court for the Eastern District of Michigan, Southern Division, granting summary judgment to the appellee, Caspar Weinberger, Secretary of Health, Education and Welfare.

On September 3, 1968, Clemens Siera-kowski, appellant, had a motorcycle accident from which he suffered fractures of the left leg. Prior to his injury the appellant had been employed for about fifteen years as a structural iron worker. He had a wife and seven children. On February 3, 1969, the appellant made application to the Bureau of Disability Insurance of the Social Security Administration to qualify for a period of disability and disability benefits under the Social Security program. At that time his doctors advised him that it would be a year and a half before he could go back to work.

However, the appellant did go to work on May 25, 1969, as a timekeeper. He worked continuously in this and other jobs earning substantially more than one hundred forty dollars per month, an amount deemed to demonstrate ability to engage in substantial gainful activity. (20 CFR, Sec. 404.1534(b)). The appellant said that immediately upon going to work in May he called the Social Security Office and informed it of that fact. The office record indicates that on June 4, 1969, the appellant’s wife telephoned and reported “that her husband had returned to a ‘restricted job’ as of May 23, 1969.”

On July 7, 1969, the Bureau of Disability Insurance of the Social Security Administration found that the appellant was entitled to a period of disability commencing September 3, 1968. He did not know of this award of benefits until he received the first checks, in August, as he remembers.' At that time he took the checks to the Dearborn office and advised the staff there that he had been working. He was told that the money was theirs, the family’s, but they still did not spend it. When it was close to Christmas, he checked again with the Social Security office and was told, “No, the money is yours”.

The appellant was notified on January 19, 1970 that his claim had been reviewed by the Division of Reconsideration of the Bureau of Disability Insurance and denied. Since he went back to work in May, 1969, his injury did not preclude him from engaging in substantial work activity for twelve months. For this reason it was held that the prior decision that he was entitled to disability insurance benefits was not correct. He was advised that he was overpaid by the benefits that he had received from April, 1969, through September, 1969, in the amount of $2,227.-20.

Upon request, a hearing was granted to the appellant by the Bureau of Hearings and Appeals of the Social Security Administration. The Hearing Examiner found that the appellant was under a disabling impairment which began on September 3, 1968, and that it was reasonably expected to continue for a period of not less than twelve months. He found that this disability actually ceased during the month of May, 1969.

The Hearing Examiner decided on May 26, 1971, that the appellant was entitled to a period of disability from September 3, 1968, to July 31, 1969, and to insurance benefits from April, 1969, to July, 1969, inclusive. Upon this decision the Examiner concluded that the appellant and his family had been overpaid for the months of August and September 1969. He further found that the appellant was without fault in receiving the payments but that repayment of the amount overpaid would not result in a financial hardship to him. He therefore concluded that the overpayment for August and September should not be waived.

On its own motion, the Appeals Council of the Social Security Administration reviewed the decision of the Hearing Examiner. It concluded from the evidence :

“Since he returned to work before 12 months had elapsed and in fact before any determination had been made on his claim, it then became apparent that his impairment had not precluded and could not be expected to preclude his engaging in substantial gainful activity for a continuous 12-month period as required by the Act. Therefore, the Appeals Council finds that the claimant was not under a ‘disability’ as defined in the Act and accordingly, was not entitled to a period of disability or to disability insurance benefits.”

The appellant then filed a complaint in the District Court seeking judicial review and reversal of the decision of the Appeals Council. Under Section 405(g), Title 42, U.S.C., a final decision of the Secretary is subject to review in a civil action brought in the District Court. Both parties moved for summary judgment.

First, we consider a question of law as to the Interpretation of the term “disability” as defined in Sections 416(i) and 423(d), Title 42 U.S.C. It is defined substantially the same in both sections as follows:

“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 has lasted or can be expected to last for a continuous period of not less than 12 months.”

Unless the appellant could establish disability as defined in each of these sections, he was not entitled to a period of disability under Sec. 416(i) or to benefits under Sec. 423(d).

The facts as to the injury and return to work are not in dispute. At the time of appellant’s application for benefits and at the time of the award impairment from his injury was expected to last for more than twelve months. As a matter of fact some impairment did continue for more than twelve months. It is claimed on behalf of the appellant that it is not the inability to work that need last for twelve months, but rather the physical impairment must have lasted or be expected to last for a continuous period of not less than twelve months.

In Alexander v. Richardson, 451 F.2d 1185 (10th Cir.), cert. den., 487 U.S. 911, 92 S.Ct. 2437, 32 L.Ed.2d 685, the Court held,

“Inability to engage in any gainful activity and the impairment which causes it cannot be separated. The two components of disability must exist at the same time.”

While we agree with this construction of the Act, we do not believe that it necessarily . follows that Sierakowski was therefore disqualified from receiving benefits when it developed that he was able to return to some gainful activity before the twelve month period had expired. The result reached by the Secretary and by the District Court is to read into the statute a provision for the conditional payment of benefits, repayable where the expected duration does not develop, unless excused under Section 404(b). We find nothing in the statutory language to support such a view, and much in the legislative history to refute it. The statute plainly says that it permits benefits where the inability “can be expected to last for a continuous period of not less than 12 months.” We conclude that by the use of the cited language the Congress established a prospective standard whereas the Secretary urges one governed by hindsight.

The intent of the 1965 amendments to the statutory definitions of disability contained in sections 416(i) and 423(d) was carefully expressed in the report accompanying the Senate bill which ultimately became the law:

(a) Elimination of the long-continued and indefinite duration requirement from the definition of disability
Under present law, disability insurance benefits are payable only if the worker’s disability is expected to result in death or to be of long-continued and indefinite duration. The House bill would broaden the disability protection afforded by the social security program by providing disability insurance benefits for an insured worker who has been totally disabled throughout a continuous period of 6 calendar months. The committee believes that the House provision could result in the payment of disability benefits in cases of short-term, temporary disability. Under the House provision, for example, benefits could be paid for several months in cases of temporary disability resulting from accidents or illnesses requiring a limited period of immobility. The committee believes, therefore, that it is necessary to require that a worker be under a disability for a somewhat longer period than 6 months in order to qualify for disability benefits. As a result, the committee’s bill modifies the House bill to provide for the payment of disability benefits for an insured worker who has been or can be expected to be totally disabled throughout a continuous period of 12 calendar months. (Disability insurance benefits would also be payable if disability ends in death during this 12-month period, provided the worker has been disabled throughout a waiting period of 6 calendar months prior to death.) The effect of the provision the committee is recommending is to provide disability benefits for a totally disabled worker even though his condition may be expected to improve after a year. As experience under the disability program has demonstrated, in the great majority of cases in which total disability continues for at least a year the disability is essentially permanent. Thus, where disability has existed for 12 calendar months or more, no prognosis would be required. Where a worker has been under a disability which has lasted for less than 12 calendar months, the bill would require only a prediction that the worker’s disability will continue for a total of at least 12 calendar months after onset of the disability. (Emphasis added) S.Rep.No.404, 89th Cong., U. S.Code Cong. & Admin.News, pp. 1943, 2038-2039 (1965).

Here, there is no claim that the prediction of disability was reached in bad faith, or on insufficient evidence, or was in any way unreasonable when made on the evidence before the Administrator at the time of the decision. On the contrary, the Hearing Examiner was fully satisfied that the evidence justified the prediction itself, and in fact directed counsel for the claimant to press that point no further. The Appeals Council also accepted this finding. That the reasonably expected did not subsequently occur should, in our view, be treated as the shared good fortune of both the government and the claimant. It does not destroy the validity of the condition for eligibility, which we hold to be the existence of expectancy itself, independent of its fulfillment.

We recognize that the construction urged by the Secretary results perhaps in more certainty and is thus easier of application, but this does not, in our view, justify a departure from Congressional intent. Furthermore, that construction tends to penalize good faith and diligence. It takes little imagination to conclude that a claimant less motivated than plaintiff here would be sorely tempted to sit out the full twelve months if he knew that the law imposed such a forfeiture for an earlier return to gainful activity.

We find nothing in the Senate report or in the language of the amendment to indicate any intention to compel repayment under the circumstances present here. Relief from financial concern is of great therapeutic value, yet this benefit is largely lost if the disabled wage earner cannot know during the first year whether the payments he receives must be refunded. It would have been simple indeed for Congress to have merely stricken the language of expectancy from the statute and to have provided instead for loans or advances which could be cancelled should the disability last longer than twelve months. That the amendments did not so provide is an indication that such a result was not intended.

Accordingly, we conclude, as did the Hearing Examiner, that Sierakowski was entitled to a period of disability from September 3, 1968 to July 31, 1969, and consequently to disability insurance benefits from April, 1969 to July, 1969. We agree with the holding of the District Court, however, that substantial evidence supports a finding that claimant has been overpaid for the months of August and September, 1969. Notwithstanding this, appellant urges that he should not be required to make repayment of the benefits that were erroneously paid him for those months. Title 42 U.S.C. § 404(b) provides:

“In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this sub-chapter or would be against equity and good conscience.”

The Appeals Council found that the appellant was without fault in incurring the overpayment, but that he ■ had been working since May, 1969, for relatively high wages, and

“To require him to repay the overpaid amounts in monthly installments would not deprive him or his family of ordinary and necessary living expenses.”

It also found that there was no evidence that the appellant by reason of the benefits received had ‘relinquished a valuable right’ or that he had ‘changed his position for the worse’.

The Council concluded that recovery of the overpayment would not defeat the purpose of Title II under the Act or be against equity and good conscience. For these reasons, recovery of the overpayment may not be waived.

These findings of the Appeals Council are supported by substantial evidence. There is nothing in the testimony of the appellant before the Hearing Examiner that indicated he had any financial hardship by the requirement to repay the benefits he received or that he had in any way changed his position by reason of receiving the payments. The claimant, therefore, failed to meet his burden of showing that recovery by the Secretary would be against equity and good conscience. Morgan v. Finch, 423 F.2d 551 (6th Cir. 1970)

Accordingly, the judgment of the District Court is reversed in part, affirmed in part. The case will be remanded to the District Court for further proceedings not inconsistent with this opinion.

      . We thus reject the contrary interpretation urged upon us by appellants and adopted in White v. Finch, 311 F.Supp. 307 (D.Mass.1970).

      . “HEARING EXAMINER: Well, actually Mr. Carney, I think it would be proper for me to tell you that the mere fact that an award was made in this case in the first instance by the Social Security Administration indicates to me that they consider that the condition of the Act had been met, and since that time, twelve months had not elapsed from the date of injury, that it had to be the alternative condition that they thought was met. That it was expected that the condition would last for a period of at least twelve months. So if you are trying to establish the medical means that there was an expectation that the condition would last for twelve months, I can tell you that the Social Security Administration did think this was so. So that you don’t need to press that point. What we have left now is a legal question . . .”

      . The decision of the Appeals Council, which became the final decision of the Secretary adopted with modifications, the findings of the hearing examiner. Those modifications do not affect our decision here, except insofar as the legal conclusions reached therefrom conflict, in our view, with the statutory intent of Section 423(d).

      . Congressional intent to encourage return to work was specifically recognized by the 1960 Amendments to the Social Security Act, Act of September 13, 1960, Publ.L. 86-778, which amended 42 XJ.S.C. § 422(c) to broaden the existing provision for vocational rehabilitation by extending the benefits of the twelve month trial work period to persons not previously covered by it. The purpose of the amendment is set forth in the Senate Report to its bill :
      “The committee believes that the broadening of the trial-work period will be an incentive to greater rehabilitation efforts.” S.Rep.No.1856, 86th Cong., U.S.Code Cong, and Admin.News, pp. 3608, 3623 (1960).


author:
SWYGERT, Chief Judge. STEVENS, Circuit Judge
      KNOCH, Senior Circuit Judge

text:
    Betty DREXLER, Plaintiff-Appellant, v. SOUTHWEST DUBOIS SCHOOL CORPORATION et al., Defendants-Appellees.
    No. 72-1918.
    United States Court of Appeals, Seventh Circuit.
    Reheard En Banc June 13, 1974.
    Decided Oct. 15, 1974.
    Stevens, Circuit Judge, concurred and filed opinion.
    Enoch, Senior Circuit Judge, dissented and filed opinion.

      Richard J. Darko, Indianapolis, Ind., for plaintiff-appellant.
    Lewis C. Bose, Indianapolis, Ind., for amicus curiae.
    Norbert T. Schneider, Huntingburg, Ind., for defendants-appellees.
    Before SWYGERT, Chief Judge, ENOCH, Senior Circuit Judge, FAIR-CHILD, CUMMINGS, PELL, STEVENS, SPRECHER and TONE, Circuit Judges.
   SWYGERT, Chief Judge.

Plaintiff-appellant Betty Drexler is appealing a decision of the district court abstaining from considering the merits of her section 1983 action. On February 14, 1974, in an unpublished order, a panel of this court (one judge dissenting) affirmed that order. Pursuant to the plaintiff-appellant’s suggestion, we have reheard this appeal en banc. We reverse.

The question presented by this appeal is whether it is proper for a federal court to abstain from determining whether a non-tenured teacher was denied further employment because of allegedly constitutionally impermissible reasons until the state courts are given an opportunity by plaintiff to determine whether the defendant school board’s actions can be deemed “arbitrary” and whether a state statute might be construed to have been violated.

Plaintiff was a non-tenured teacher employed by the school board. Her contract was not renewed and pursuant to an Indiana statute she requested and received a statement of the reasons for her non-retention. Basically, three reasons were presented: her rapport with students was not sufficient; a letter she sent to the superintendent was “completely unprofessional” and bordered on insubordination; and she had communicated to the administrators an “overt feeling” that her teaching load was too heavy. The plaintiff then instituted the federal court action in which she seeks a declaratory judgment, an order requiring that she be extended a new contract, back pay, damages, and attorney’s fees. Her amended complaint alleges that the defendants deprived her of her right to substantive due process by dismissing her “in retribution for plaintiff’s exercise of her First Amendment right to free speech in criticizing the actions of the school administrators,” or, alternatively, by dismissing her “for reasons which are arbitrary and capricious, without basis in fact or in logic.” The First Amendment claim is based upon the letter sent to the superintendent. The complaint did not allege the unconstitutionality of a state statute or a violation of a state statute. Further, plaintiff had not instituted an action in the state courts in regard to this matter.

The district court, in ruling upon a motion to dismiss, decided to abstain from determining these issues “pending the resolution of the state law issues by timely application by the plaintiff to the Courts of Indiana.” The judge thought that the allegation of arbitrary action was more properly an issue of Indiana law that should be considered by the Indiana courts along with the question of whether the reasons supplied to plaintiff sufficiently comply with Bums’ Ann. Ind.Stat. § 28-4517, IC 1971, 20-6-13-1 (1970), since a determination of those issues might eliminate the need to consider the constitutional claims. The court buttressed its decision by noting “the paramount interest of the State of Indiana in educational matters within its borders.”

A preliminary question we must consider is whether we have jurisdiction to entertain this appeal. Technically this case was not dismissed but merely stayed pending litigation in the state courts and it could be argued that the order is not appealable. However, we think it is only logical to consider this order to be a final judgment within the meaning of 28 U.S.C. § 1291 and there is ample precedent to support this conclusion. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794, 715 n.2 (1962); Moses v. Kinnear, 490 F.2d 21, 24 (9th Cir. 1973); Druker v. Sullivan, 485 F.2d 1272, 1274 n.3 (1st Cir. 1972).

We proceed to the propriety of the district court’s decision to abstain and require the plaintiff to initiate state court proceedings. We note the general proposition that the “judge-made doctrine of abstention . . . sanctions such escape only in narrowly limited ‘special circumstances.’ ” Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967). Moreover, “the use of the abstention doctrine in cases involving civil rights, especially in cases where First Amendment rights are allegedly involved, is not to be encouraged.” Devlin v. Sosbe, 465 F.2d 169, 172 (7th Cir. 1972).

Equally important to keep in mind is the commonly stated rule that a plaintiff need not exhaust state remedies before filing a section 1983 suit, since the federal remedy is “supplementary to the state remedy.” Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). There is now some doubt, though as to the extent to which section 1983 is a supplementary remedy. In Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971) the Supreme Court held that a district court should have, abstained from determining whether a Florida statute is invalid under the Equal ■ Protection Clause until the Florida courts ruled upon a challenge to the law based on the Florida constitution. The Court interpreted Monroe v. Pape as applying only to a situation in which the state remedy is not available in practice and viewed McNeese as holding that “ ‘assertion of a federal claim in a federal court [need not] await an attempt to vindicate the same claim in a state court.’ 373 U.S. at 672 (emphasis added).” 401 U.S. at 478, 91 S.Ct. at 858. The Court found that the case already filed in the state court did not present the “same claim.”

The Second Circuit has approved abstention in a section 1983 case in which there was a “substantial statutory and constitutional claim under New York law” even though no action in state court had been initiated. Reid v. Board of Education, 453 F.2d 238, 240 (2d Cir. 1971). In that case it was determined that Monroe v. Pape and McNeese were not applicable because the state claims were not “merely counterparts for the federal rights asserted.” 453 F.2d at 244. Without determining any further questions, we believe that it is still correct that at least there is no need to present a claim to the state courts before raising that same claim in a section 1983 action.

In the context of the present proceeding abstention is equivalent to an impermissible requirement of exhaustion of state remedies. Defendants argue that abstention is proper whenever a state court’s interpretation of state law might eliminate the necessity of a federal court ruling upon an alleged constitutional violation. Here the district court has required plaintiff to allow the courts of Indiana an opportunity to review the decision not to extend the contract in light of a general state law doctrine, derived from the Indiana constitution, that prohibits arbitrary governmental action. Admittedly, the Indiana courts might find the defendants’ actions arbitrary and thus eliminate the need for this section 1983 action. But, given the broad and generalized nature of the concept of arbitrary governmental action, it is possible that in many section 1983 actions the alleged constitutional deprivations might be found to be a violation of state law if only a plaintiff would present the claim to a state court. Some small amount of federal-state friction might be eliminated by such a requirement. However, if elimination of federal-state friction were the only criterion, a plaintiff should also be required to submit his federal constitutional claim to the state courts in the first instance. Indeed, in this case one of the constitutional issues raised is the question of arbitrary and capricious action. We find that ordering plaintiff to litigate the question of “arbitrary action” in the state courts before either of these constitutional issues will be considered is, in effect, requiring him to first litigate the “same claim” in the state courts. Such exhaustion is not necessary in a section 1983 action.

Abstention cannot be justified on the basis of a possible state statutory violation either. An essential prerequisite for abstention is “an uncertain issue of state law.” Harman v. Forsenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965). The statute in question (§ 28-4517, supra n. 1) requires that reasons be given to the teacher. But both plaintiff and defendants agree that it is now clear that the type of general reasons given Drexler is sufficient under this statute. Still, defendants argue that Indiana law is “unsettled” as to the effect of giving false reasons for dismissal which they claim is plaintiff’s primary allegation. Defendants theorize that possibly such false reasons would violate the statute. However, the mere existence of an unlitigated theory under which a plaintiff might be deemed to have a cause of action in state court for violation of a statute is not always sufficient to justify abstention. Not only must the state law be uncertain, but the issue must be substantial. “Abstention certainly involves duplication of effort and expense and an attendant delay.” Reetz v. Bozanich, 397 U.S. 82, 86, 90 S.Ct. 788, 790, 25 L.Ed.2d 68 (1970). The theory of a state statutory violation that has been presented to us is not sufficient to support abstention, especially since the federal claim is not dependent upon an interpretation of the statute.

This is not a case in which the necessity of determining the constitutionality of a statute might be avoided if the state courts are allowed to construe the statute first. In one sense the friction caused by a federal decision in this matter would be slight since no state legislative policy is being challenged. Defendants argue that failure to abstain could result in numerous federal challenges by non-tenured teachers. They contend that matters involving public schools are particularly local affairs that should be left to the states whenever possible. The simple answer to this argument is that the crux of this suit is an allegation of a constitutional violation which is an issue most appropriate for presentation before a federal court in a section 1983 action. The fact that the alleged denial of constitutional rights is set in the context of the public education system cannot be determinative.

In view of our decision that abstention was improper we must remand this case to the district court for consideration of the substantive issues. Our remand expresses no opinion as to the legal sufficiency or ultimate merit of plaintiff’s claims.

Reversed and remanded.

STEVENS, Circuit Judge

(concurring).

Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196, demonstrates that abstention may be appropriate to give a state court an opportunity to determine a state law claim which, if sustained, will obviate the need to adjudicate a federal constitutional question. Defendants argue that similar reasoning justifies abstention in this case. In Askew, however, two factors favored abstention which are not present here.

In Askew, the plaintiffs attacked the constitutionality of a new Florida statutory method of financing public education. Because a statewide statute was under attack, a three-judge district court had been convened. In this case, the potential state-federal conflict is much less serious because the dispute merely involves one individual teacher, one local school board, and a set of facts which is relatively unique. Moreover, unlike the situation before us, the substantial character of the state law attack on the Florida legislation was indicated by the pendency of litigation in the Florida courts. The colloquy between the Court and counsel at the oral argument of Askew apparently persuaded the Court that the pendency of that litigation made abstention appropriate. See 401 U.S. at 478, 91 S.Ct. at 857. In contrast, the oral argument of this ease revealed that there is no litigation pending in the Indiana courts which will be of benefit to this plaintiff, and neither counsel gave us any indication that there was a substantial likelihood that plaintiff would obtain adequate relief from an Indiana court.

The per curiam opinion in Askew seems to place critical emphasis on the question whether “the same claim” might be asserted in both the federal court and the state court. I find this emphasis somewhat puzzling because, contrary to the thrust of Askew, I would suppose that a greater identity between the two claims would increase, rather than decrease, the justification for abstention. Be that as it may, my agreement with the conclusion that abstention was improper in this case is not dependent on the premise that plaintiff’s federal complaint asserts the “same claim” that might be asserted in a state court.

Plaintiff has attempted to assert two quite different federal claims: (1) that she was dismissed for an impermissible reason, namely, in retribution for exercising her First Amendment right to criticize the school administration; and (2) that her dismissal was simply arbitrary. As I understand defendants’ position, it is the latter theory which is comparable to a possible state claim which they want her to file and litigate to a conclusion before proceeding in federal court. But, as a matter of federal law, that theory is insufficient. Jef-fries v. Turkey Run Consolidated School District, 492 F.2d 1, 3-4 (7th Cir. 1974).. I do not understand defendants to argue that plaintiff’s First Amendment claim has any exact counterpart in Indiana law.

In my judgment, abstention is improper regardless of whether there is a lack of identity between the potential state claim and the federal claim. As Judge Swygert correctly emphasizes, this case does not involve an attack on any state statute or regulatory program. This is a local controversy raising a disputed issue of fact and also the legal question of whether plaintiff’s version of the facts entitles her to federal relief. The merits of the federal claim are not dependent in any way upon the resolution of any uncertain questions of state law. In this situation, the mere possibility that a state tribunal might grant this individual plaintiff relief which would make it unnecessary for her to pursue her federal remedy is not a sufficient reason for abstention. I believe that is the essential teaching of Monroe v. Pape and McNeese.

KNOCH, Senior Circuit Judge

(dissenting).

For the reasons set forth in our unpublished order of February 14th, 1974, a portion of which I quote below, I respectfully dissent. In my opinion, the decision of the District Judge should be affirmed.

      . “. . . Any teacher who shall be refused continuation of contract pursuant to the provision of this act [section] may request from the trustee or board of trustees a written statement showing reason for such dismissal . . . .”

      . See Tilton v. Southwest School Corp., Ind. App., 281 N.E.2d 117 (1972).

      . In McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, after reviewing the purposes of § 1983 as described in Monroe v. Pape, 365 U.S. 167, 171-183, 81 S.Ct. 473, 5 L.Ed.2d 402, the Court said:
      “We would defeat those purposes if we held that assertion of a federal claim in a federal court must await an attemjjt to vindicate the same claim in a state court.” 373 U.S. at 672, 83 S.Ct. at 1436.
      It would seem even more inconsistent with the purposes of § 1983 to hold that the assertion of the federal claim must await an attempt to vindicate some other claim in a state court.
      Indeed, in Gibson v. Berryhill, 411 U.S. 564, 580, 93 S.Ct. 1689, 1699, 36 L.Ed.2d 488, the Court relied on the difference between the state and federal claims as a reason for not requiring abstention. The Court there stated:
      “Arguably, the District Court should have awaited the outcome of the Lee Optical Co. appeal, a decision which might have obviated the need for an injunction in this case.18 But the Board was pressing its charges against appellees without awaiting that outcome and, in any event, it appears that at least some of the charges pending against appellees might have survived a reversal of the state trial court’s judgment by the Alabama Supreme Court. Under these circumstances, it was not an abuse of discretion for the District Court to proceed as it did.” (Emphasis added.)
      In its footnote 18, the Court cited Askew.

      . It is worth noting that the statewide application of the order of the Texas Railway Commission under attack in Railroad Commission v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, the Alaska fishing laws and regulations involved in Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68, and the Millage Rollback Law challenged in Askew, made it appropriate to convene a three-judge district court in each of those cases. In contrast, it is of interest that in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, and McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (as in this case), the state action under attack had only a local impact.

      . In Pullman, state law claims were raised in the federal litigation and it would have been necessary for the tliree-judge court to decide the state issues before reaching the federal questions. Abstention was therefore essential to avoid tlie risk that the state questions would be decided incorrectly. In Mc-Neese, the Court emphasized the fact that tiie federal right was not “in any way entangled in a skein of state law that must be untangled before the federal case can proceed.” 373 U.S. at 674, 83 S.Ct. at 1437. In that case, as in this, it was “immaterial whether respondents’ conduct is legal or illegal as a matter of state law.” Ibid. And in Reetz, the Court differentiated those cases “where the questions of state law are enmeshed with federal questions.” 397 U.S. at 85, 90 S.Ct. at 789, quoting from City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 640-641, 79 S.Ct. 455, 3 L.Ed.2d 562.

      . Orr v. Thorpe, 427 F.2d 1129 (5th Cir.1970), presented a stronger case for abstention than does this case since the availability of an adequate state remedy was apparently assumed, and the controversy between the Teachers Association and the School Board involved a broader policy question than merely the discharge of one teacher. Nevertheless, Judge Wisdom, speaking for the Court, summarily dismissed defendants’ abstention argument, stating simply: “The plaintiffs have stated a federal cause of action and do not seek to interpret or attack Florida statutes.” 427 F.2d at 1131.

       “The amicus curia argued, for abstention, that there were well-defined statutory Indiana State provisions, with an adequate remedy of state review, where the necessity of developing state substantive law on teachers’ rights was of great importance, the existing and future potential of litigation immense, and where cases could be resolved by State Courts without involving determination of federal constitutional issues. Further argument of the amicus curia dealt with the fact that communications between employer and employee, as here, would occur in virtually every employment case and absent some factual allegation other than that a communication to the Superintendent was involved in the determination not to renew the contract, the question here was whether arbitrary and capricious action had been taken. The Dis-triet Court found this reasoning persuasive, as do we.
      “Plaintiff contends that her amended complaint does not attack any state statute or regulation and that interpretation of the Indiana Statute will not avoid the federal constitutional question. She is willing to recognize that the defendants fully complied with the state statute but argues that this does not negative the possibility of federal constitutional violation.
      “Nevertheless, as appellees assert, plaintiff may have an independent right to recover under Indiana law on issues not yet resolved by its Courts with respect to her charge that arbitrary and capricious action was taken and that false and sham reasons were given her in purported fulfillment of Indiana statutory requirements.”