author: WILKEY, Circuit Judge: ROBB, Circuit Judge,

text:
    Franklin PHILLIPS, Petitioner, v. INTERIOR BOARD OF MINE OPERATIONS APPEALS, Respondent, Bituminous Coal Operators’ Association and Kentucky Carbon Corporation, Intervenors.
    No. 73-1260.
    United States Court of Appeals, District of Columbia Circuit.
    June 20, 1974.
    Rehearing Denied Aug. 26, 1974.

      Joseph W. Justice, Pikeville, Ky., was on the brief for petitioner.
    Irving Jaffe, Acting Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, Walter *H. Fleischer, and Karen K. Siegel, Attys., Dept: of Justice, were on the brief for respondent.
    Guy Farmer, Washington, D. C., was on the brief for intervener, Bituminous Coal Operators' Assn. Lynn D. Poole, Washington, D. C., entered an appearance for intervener.
    Robert G. Kelly and Charles Q. Gage, Charleston, W. Va., were on the brief for intervener, Kentucky Carbon Corp.
    Before HASTIE, United States Senior Circuit Judge, and ROBB and WILKEY, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   WILKEY, Circuit Judge:

In this case the court is called upon to determine whether the discharge of coal miner Phillips, petitioner, was violative of the Federal Coal Mine Health and Safety Act of 1969 [hereinafter Safety Act]. We find that Phillips brought himself within the penumbra of the Safety Act by notifying his foreman of defective equipment creating dangerous working conditions. Such safety violations, followed by worker notification to management and an ensuing disagreement, are not to be equated with a simple labor dispute; safety violations bring section 110(b)(1) of the Safety Act into operation. We reverse the decision of the Board and reinstate the decision of the Administrative Law Judge.

I. THE DISCHARGE OF PETITIONER PHILLIPS

Franklin Phillips was employed for two years by the Kentucky Carbon Corporation [Kencar] at its Kencar No. 1 Mine in Phelps, Kentucky. During the last four months of his employment he worked as a shuttle car operator, i. e., he received coal from a mechanized loader, transported it to a belt conveyer, and there unloaded it into a Roscoe which fed the coal to the belt. On 28 April 1971 Phillips was discharged orally by his foreman because of his failure to comply with an order to return to work, despite his belief that the working conditions were dangerous. Two days later a written discharge slip from Kencar topside management was presented to Phillips.

For several months prior to the discharge Phillips and other employees had raised complaints with their foreman, H. E. Edwards, concerning health and safety aspects of their work area. *Complaints centered on excessive coal dust and defective electrical wiring, serious problems of both health and safety underground. After the foreman failed to resolve satisfactorily these problems, complaints were taken to the members of the Mine Safety Committee. The Committee, which is provided for in the collective bargaining agreement, consists of elected representatives of the miners, who are authorized to investigate safety and health conditions and who may close an area of a mine if imminent danger to the men is threatened. The Committee was often able to insure that dangerous conditions were properly dealt with by the foreman, but several uncorrected conditions were reported to the Union District Safety Coordinator.

In January 1971 a spot inspection of the mine was made by a federal safety inspector. He required the shutting down of a section of the mine in which Phillips worked because of loose coal and coal dust, and improper splicing on electrical equipment. Corrections of these safety violations were undertaken, and the mine was reopened on the same date. However, a Federal Bureau of Mines Notice of Violation charged Kencar with excessive respirable coal dust between 18 March and 1 April 1971.

Both before and after the federal orders Phillips personally lodged complaints concerning excessive coal dust and improper wiring with the foreman and with the Mine Safety Committee. His reports to the foreman were found by the Administrative Law Judge below to anger the foreman, to the point of his throwing objects to the ground and declaring that Phillips was a troublemaker.

One method of reducing coal dust used in the mine involved water sprays on the loader: water would be sprayed to wet down the coal and coal dust as the coal was poured into shuttle cars. The Administrative Law Judge found that while Phillips was employed as a shuttle car operator the sprays often were clogged and thus defective, requiring frequent cleaning.

On the day of the discharge Phillips reported to the foreman that the water sprays were not operating properly. After indicating that he would investigate the matter, the foreman left that section of the mine. The men found that the dust became too thick while working, and the loader operator Ermil Justice asked Phillips to help him clean out the sprays. When the foreman returned, according to Phillips, this exchange occurred:

[T]he foreman come over while we were working on it and asked what was the matter. I told him we were trying to unstop the water and get water pressure on the loader. He said he was tired of that damned water situation and he was getting tired of it, he was going to put a stop to it one way or another. I said, “I worked in the dust a long time and I can’t get nothing done about and I’m not going to work in it.” He said, “If you don’t want to work in it, I’ll just take you outside.” And I said, “No, I’ll go on my own. You’re not taking me anywhere. I’ll go on my own.” He said, “As far as I’m concerned, you’re fired.” And I said, “Suit yourself, I’ll just go right on outside like you told me.” "

Phillips then left the mine, and on 30 April a written discharge was received by him.

This version of the events was accepted by the Administrative Law Judge as a correct account of what happened. It should be noted, however, that the foreman’s testimony conflicted with Phillips’.

It appears that Phillips then spoke with his Union, the United Mine Workers, for the Union filed a grievance under the National Bituminous Coal Wage Agreement of 1968 on 6 May 1971 with the Union-Corporation Joint Board of Arbitration. The Union charged that Phillips was wrongfully discharged “while helping the loader operator clean out water sprays on the loader to prevent a dust hazard at the request of the loader operator.” The Arbitration Board referred the matter to an umpire for final decision. On 29 June 1971 he determined that the Union grievance should be denied, since evidence established that Phillips had refused to haul coal when ordered to do so by the foreman, and the Union had not shown such hazards as would justify refusal. However, the umpire also stated that he had “no authority to interpret or enforce the regulations of the Federal Health and Safety Act,” and declined to rule on Phillips’ asserted rights under the Safety Act.

Phillips then sought aid from the National Labor Relations Board in the form of a complaint against Kencar. This was refused by the Regional Director on 17 December 1971 on the ground that arbitration was required before “striking,” unless there were abnormal working conditions, which were not in fact present in this case.

Up to this point, Phillips’ efforts through both his Union and the NLRB had been unavailing, and it is important to note why. The Union Grievance Arbitration Board umpire declined to rule on Phillips’ rights under the Safety Act, which are the rights now involved here. The NLRB Regional Director appeared to be completely confused as to what rights Phillips was asserting, the Director’s rationale referring strangely to a collective bargaining agreement with a “no strike clause,” that Phillips “could not legally go on strike,” and that he “was obligated to arbitrate his grievance.” This rather ignored the obvious fact that far from trying to go on strike, all Phillips wanted was his job back, and that he had tried arbitration, with the result that the umpire declined to rule on the one statute which could help him.

What this adds up to for us, as at this point it apparently did for Phillips, is that if there is no right of action under the Mine Safety Act independent of the usual labor dispute settlement mechanisms, there is no right of action under the Mine Safety Act at all. So, after this legal education at some cost in time and money, Phillips applied to the Secretary of Interior for review of his discharge under the Safety Act. After a hearing the Administrative Law Judge ruled on 8 June 1972 that the discharge violated section 110(b)(1) of the Coal Mine Health and Safety Act. The Administrative Law Judge found that the mine foreman had reasonable grounds to know that Phillips had made repeated complaints both to the foreman himself and the Mine Safety Committee regarding electrical and coal dust violations. The ALJ credited Phillips’ testimony as being more reliable than the foreman’s; in particular he found that the foreman did not check the water sprays before discharging Phillips.

From the evidence as a whole, the ALJ concluded that the discharge of Phillips was

arbitrary and discriminatory against [Phillips] because of his activities in complaining to the foreman and the Mine Safety Committee about safety and health conditions and because of [Phillips’] safety activities in assisting other miners in corrective maintenance to prevent exposure to excessive and hazardous coal dust.

And he further concluded

that the motivating factor in the discharge of [Phillips] was an intent to penalize him for such safety complaints and safety activities, and to set an example for other employees not to complain of safety and health conditions or interrupt production by making necessary safety adjustments and repairs.

On appeal the Interior Board of Mine Operations Appeals reversed the Administrative Law Judge. The Board recognized that Phillips had lodged complaints with the foreman and the Mine Safety Committee prior to his discharge. However, it also noted that Phillips did not seek any immediate redress upon being fired by the foreman.

The Board found no substantial evidence to support the Administrative Law Judge’s findings of a discriminatory discharge. Instead, the Board found that the reason for the discharge was the “refusal of Phillips to obey the direct order of the foreman to haul coal.”

Furthermore, the Board found the Administrative Law Judge’s construction of the scope of section 110(b)(1) to be erroneous. According to the Board, a discharge motivated by complaints to the Mine Safety Committee would not make a prima facie case under the Safety Act, because the scope of protection of the Act is narrow. Complaints must be made to the Secretary or his authorized representative, not to fellow employees, supervisors, or the management of the mine. Since the Board found nothing in the record to show that Phillips had initiated or intended to initiate a report to the Secretary or his authorized representative, Phillips had not succeeded in bringing himself within the protection of the Safety Act.

II. THE PROPER SCOPE OF THE MINE SAFETY ACT

A. Cause of Discharge Sufficient to Invoke the Act

The resolution of the issue here depends on the coverage of and the procedure under the Mine Safety Act. Obviously the Board and the Administrative Law Judge differed in their interpretations. Specifically, we must determine whether a miner brings himself under the coverage of the Act by reporting safety violations to his foreman and Mine Safety Committee, or whether he must formally notify the Secretary of Interior or his authorized representative before he is protected. We believe that the answer is clear: given the mine’s procedures regarding safety complaints, the coverage of the Act begins when the miner notifies his foreman and/or safety committeeman of possible safety violations.

It is important to recognize at the outset that this case arises out of the enforcement of the Mine Safety Act, not an ordinary labor dispute. While a' simple employee discharge may be merely a labor dispute, when allegations of safety violations are not frivolous the court must carefully review the case to determine whether the Mine Safety Act has been obeyed. Our review indicates that the Act is involved here, and indeed we conclude that Phillips has presented a valid cause of action.

Safety costs money. The temptation to minimize compliance with safety regulations and thus shave costs is always present. The miners are both the most interested in health and safety protection, and in the best position to observe the compliance or noncompliance with safety laws. Sporadic federal inspections can never be frequent or thorough enough to insure compliance. Miners who insist on health and safety rules being followed, even at the cost of slowing down production, are not likely to be popular with mine foreman or mine top management. Only if the miners are given a realistically effective channel of communication re health and safety, and protection from reprisal after making complaints, can the Mine Safety Act be effectively enforced.

There is no question but that Phillips felt there was a danger due to excessive coal dust on 28 April 1971. The previous actions of the federal inspectors and the Mine Safety Committee confirm that Phillips was not overly or unreasonably worried about the dangerous conditions in the mine. When Phillips felt that the dust conditions were harmful, he did what he could to reduce the risk —he began to clean the water sprays. It was at this point that the foreman told him to start work, as opposed to continuing to fix the safety equipment. After rejecting Phillips’ contention that it was necessary to reduce the dust, the foreman told him either to start work or be fired. Thus Phillips was given the choice of either working in what he felt was an unhealthy, unsafe area, or being discharged for not accepting the foreman’s evaluation of the danger. His discharge on 28 April was the direct result of his disagreement with the foreman on the safety of the coal dust level.

We digress here to point out that the “substantial evidence” question is no question at all. Our dissenting colleague adequately describes the Administrative Law Judge’s and Board’s con-elusions on this: “First, the Board found there was no substantial evidence to support the finding of the Trial Examiner that Phillips whs discharged because of his safety complaints and safety activities. After reviewing the evidence the Board found, contrary to the Examiner’s conclusion, that the reason for the discharge was the refusal of Phillips to obey the direct order of his foreman to haul coal.” (P. 787) Of course, both the Administrative Law Judge and the Board were right: Phillips was discharged because of his refusal to obey a direct order to haul coal because in his judgment the working conditions were unsafe and unhealthy and Phillips and his co-worker were engaged in an effort to repair the safety equipment (spray) before resuming hauling coal. The Board never considered any evidence different from the Administrative Law Judge’s evidence; the Board simply summed up the evidence in a con-clusory way designed to characterize the issue as an ordinary labor dispute — to which ordinary labor dispute remedies would attach. To the court it seems inescapable that the whole dispute arises under the Mine Safety Act and is governed by it; if there had been no Mine Safety Act, it seems likely that Phillips would never .have registered this — and previous — safety complaints. ■

The Mine Safety Act protects miners who are discharged as a result of their complaints concerning safety violations in mines. Section 110(b)(1) prohibits discharge of or discrimination against a miner by reason of the fact that the miner

(A) has notified the Secretary or his authorized representative of any alleged violation or danger,
(B) has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or
(C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

We believe that Phillips’ notification to the foreman of possible dangers is an essential preliminary stage in both the notification to the Secretary (A) and the institution of proceedings (B), and consequently brings the protection of the Safety Act into play.

B. Procedure

In so holding, we do not adopt either extreme urged upon us. We do not think that merely because a discharge originates in a disagreement between- a foreman and a miner that the Mine Safety Act is automatically brought into play. Nor do we adopt the other extreme, take the bare words of the statute with their most limited interpretation, and hold that before a miner’s safety complaint is accorded the protection of the Safety Act the coal miner must have instituted a formal proceeding with the Secretary of Interi- or or his representative. Rather, we look to: the overall remedial purpose of the statute (discussed under C. infra); the practicalities of the situation in which government, management, and miner operate; and particularly to the procedure implementing the statute actually in effect at the Kencar mine. The existence of this procedure in itself was a practical recognition that the bare words of the Safety Act, unless implemented by some procedure at the mine to bridge the gap between “the Secretary or his representative” (presumably the Federal Bureau of Mines) and the coal miner himself (the object of the Act), would be completely ineffective in achieving mine safety.

In summary, the procedure at the Kencar mine for the processing of safety complaints was the following:

(1) miner notifies his foreman of the problem and tries to obtain corrective action;
(2) if the foreman disagrees, the miner has the right to call in the Mine Safety Committeeman to evaluate the complaint;
(3) (a) if the Mine Safety Committeeman agrees with the miner and the foreman fails to correct the problem the Committeeman can bring the case to the entire Committee and they may order the mine section closed;
(3) (b) if the Mine Safety Committeeman disagrees with the miner, the latter can request a Federal Mine Inspector be called in. Pending that determination, the miner is to be temporarily reassigned to another area.

This finding of the Administrative Law Judge is not disputed, and could Hardly be disputed, as it rests on testimony at the hearing of Kencar management that this procedure was in effect before and on the day Phillips was discharged.

The Administrative Law Judge further found:

It is conceded by Respondent that, pending a resolution of a safety or health complaint, a miner at the Ken-car Mine had the right to refuse to work under conditions which he believed in good faith to be hazardous to his safety or health,

Nothing in the Mine Safety Act or mine procedure suggests that the company has a right to fire a miner for refusing to work in a particular area of a mine when he fears a chronic, long-term threat to his health or safety there due to safety violations.

The Administrative Law Judge further specifically found:

Pending a determination by the Federal Inspector, the miner was to be reassigned to other, temporary duties. No case experienced in this mine actually reached the stage of temporary reassignment pending a Federal inspection, but management acknowledged at the hearing that under its practices and the implementation of its bargaining agreement, such would be the rights of the miners regarding safety or health complaints.
7. It is evident that, although the above safety complaint rights were acknowledged by management at the hearing, they were not entirely understood by the miners themselves.

It is clear beyond peradventure that Phillips was not required to accept the foreman’s evaluation of danger; it is equally clear that he was discharged for not accepting the foreman’s safety determination. We reject the Board’s suggestion that Phillips was discharged only for a simple refusal to work. Rather, we conclude that the effective cause of Phillips’ discharge was his complaint about hazardous working conditions in the mine.

When the foreman told him he was fired, Phillips left the mine. He was undoubtedly unfamiliar with the elaborate appeal and review procedure; he assumed that the firing was final. In view of the discharge on improper grounds, we cannot hold Phillips to the standard of requiring him to file a petition with the Mine Safety Committee, or to notify formally the Secretary or other authorized person. Phillips “instituted [a] proceeding” with the closest representative of any authority, i. e., his' foreman, by making an effective complaint of a violation of the Mine Safety Act, i. e., refusing to work in unsafe conditions, for which he was promptly fired. While there is a possibility that the foreman also was unaware of the proper safety complaint procedures, nevertheless the mine management should have known of these procedures and rights, and with a greater time for reflection and investigation should have notified the miner of his rights of appeal and quashed the discharge. In fact the management did neither, but sent a formal discharge notice asserting additional grounds, the validity of which the foreman later denied. This ratification by Kencar management of the improper discharge, especially in view of previous safety complaints, violated the Mine Safety Act.

The above discussion of the procedures necessary to implement the Mine Safety Act makes clear our most fundamental disagreement with the decision rationale of the Board, espoused by our dissenting colleague here. The method of “instituí [ing] any proceeding” or “notif[ying] the Secretary or his authorized representative” is not spelled out in the Act, certainly not in terms cognizable by a coal miner. The Kencar Mine management and union representatives sensibly recognized this, and put into ef-feet a procedure to bridge the gap between the miner in the pit and the Federal Bureau of Mines, the Secretary’s representative. That procedure had as its first step the miner notifying his foreman of the problem and trying to obtain corrective action. Phillips did precisely this in accordance with Kencar Mine’s approved procedure to meet the standards of the Mine Safety Act. Phillips was fired for doing so.

To hold that Phillips was not protected against discharge because he took the first prescribed step under the Kencar procedure to invoke the Mine Safety Act, to hold that only a miner’s discharge after he reaches the Bureau of Mines with his complaint is protected by the Safety Act, would nullify not only the protection against discharge but also the fundamental purpose of the Act to compel safety in the mines.

We believe that the Mine Safety Act, to be effective, must be construed as we have here. If it is not, it will be easy for management to avoid the prohibitions of the Act. If every miner who complained of safety device failures could be placed in Phillips’ situation, the Act would be a hollow promise of protection; a foreman’s determination of safety would become final.

C. Legislative Histqry and Judicial Construction

Our view of the Mine Safety Act is supported by the legislative history. Senator Kennedy, in introducing his amendment which became section 110(b) of the Safety Act, noted the broad purpose of the provision:

the rationale for this amendment is clear. For safety’s sake, we want to encourage the reporting of suspected violations of health and safety regulations. .
But miners will not speak up if they fear retaliation. This amendment should deter such retaliation, and, therefore, encourage miners to bring dangers and suspected violations to public attention.

Senator Kennedy also remarked that

[i]t is especially important that miners not feel inhibited to point out health and safety violations because there is such a high degree of danger in the mines.

Given this wide scope of protection intended, a liberal construction of the language of the Act is justified.

The House Committee on Education and Labor in reporting on the Act also suggested a liberal construction:

Subsection (b) prohibits discrimination against miners for having exercised their rights under this Act or for having participated, in any way, in the enforcement of the Act. The subsection provides procedures for obtaining reinstatement and back pay for miners discharged by operators and other remedies for miners discriminated against.

Furthermore, we note that the Third Circuit in considering a previous Mine Safety Act stressed a broad reading:

[I]n construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light of the prime purpose of the legislation is to be employed. This statute is remedial, with a humane purpose in view and is therefore entitled to a liberal construction.

The parallels between the Mine Safety Act and other protective labor acts are significant. The Safety Act provision which we here construe was introduced with the announced intention of giving to miners “the same protection against retaliation which we give employees under other Federal labor laws.” Specifically, the National Labor Relations Act, the Fair Labor Standards Act, and the Landrum-Griffin Act were all noted as protecting employees against discrimination because of exercise of rights under the Acts.

The Supreme Court has construed the corresponding NLRA provision broadly: in NLRB v. Scrivener, dba AA Electric Company, the Court held violative of the NLRA the discharge of an employee for his giving a sworn written statement to a NLRB field examiner who was investigating an unfair labor practice charge. Justice Blackmun, writing for the unanimous Court, was concerned that the employee should be protected in the investigative stages as well as after filing of formal charges or in giving formal testimony. Such protection is necessary “ ‘to prevent the Board’s channels of information from being dried up by employer intimidation of prospective complainants and witnesses.’ ” Furthermore, Justice Blackmun stated that

the presence of the preceding words “to discharge or otherwise discriminate” reveals, we think, particularly by the word “otherwise,” an intent on the part of Congress to afford broad rather than narrow protection to the employee.

In the Mine Safety Act the words “in any other way discriminate’’ may be similarly construed.

We believe our view of the scope of section 110(b)(1) of the Mine Safety Act is the only practical one to ensure the health and safety of miners, which is the central purpose of the Act. Holding that miners are not protected until they initiate formal procedure for review, of which they may be unaware, would violate the goal of protecting the miners’ health and would thus violate the Congressional intent. The result we reach in this case best comports with the remedial purpose of the legislation. Therefore, we reverse the decision of the Interior Board of Mine Operations Appeals and reinstate the decision and order of the Administrative Law Judge. So ordered.

ROBB, Circuit Judge,

dissenting:

I dissent on two counts: (1) in my judgment the majority has misconstrued section 110(b)(1) of the Act; and (2) assuming that the majority rightly construes the Act, it is wrong in overturning the findings of the Board on the facts.

I.

The petitioner Phillips was a shuttle car operator at a coal mine, his duty being to transport coal in his shuttle car from a mechanized loader at the face of the mine to a conveyor belt. The loader was equipped with water sprays to wet down the coal and reduce dust. While on duty Phillips refused to continue his work because in his opinion the water sprays on the loader were not working properly. The foreman disagreed with the petitioner’s opinion and directed him to resume work. When Phillips refused to obey the foreman discharged him.

Pursuant to the contract between the petitioner’s Union, the United Mine Workers, and the company, the matter of the petitioner’s discharge was submitted to binding arbitration. The grievance submitted by the Union on behalf of the petitioner alleged that he had been wrongfully discharged. After hearing testimony from both company and Union witnesses the umpire rendered his final and binding decision. He held, in pertinent part:

Under the Management of Mines clause of the contract the management of the mine, the direction of the working force, is vested exclusively in the operator. The only justifiable reason • a miner would have to refuse to obey a direct order to continue to perform his normal duties, is that such an order would put him in danger of immediate personal injury of danger to his life. Such danger did not exist in this case.
The grievant in this case was not working continuously near the face of the coal where he complained of excessive dust. The only time he was there was when he was waiting to, have his buggy loaded or his buggy was actually being loaded. The men who were working on the equipment at the face of the coal were there continuously during their shift. They continued on with their work and did not walk off the job. There is no showing in this case that the grievant was in any immediate danger of great physical harm or danger to his life by continuing to carry out his duties as the other employees of this section continued to do.
It has in all cases known to this umpire been held that failure to carry out an order to perform duties assigned to a miner is a violation of the Management of Mines provision of the contract. If each miner can decide under what conditions he would work then the Management of Mine clause of the contract would have no meaning and management would have no control of the operation of the mines and the result would be chaos.
* * ■* * * *
In this case the grievant admits that he refused to work and obey a direct order of management to perform his duties and there is no showing he was in immediate danger of serious injury or loss of life. As unpleasant as it is the umpire must find that the management had the right under such circumstances to discharge the employee.

Phillips then complained to the National Labor Relations Board that his discharge was discriminatory. On December 17, 1971 the Regional Director refused to issue a complaint against the company. The Regional Director wrote:

The investigation has disclosed that there were no employees, other than Franklin Phillips, who had complained to their supervisor about the dust conditions in the mine on the date in question. Furthermore, the then current collective bargaining agreement contained an implied no-strike clause provision in the clause which provided for arbitration disputes. Therefore, under these circumstances it was deemed appropriate that Phillips was obligated to arbitrate his grievance and could not legally go on strike, unless there were abnormal working conditions in the mine on the date in question. Moreover, it has been concluded that the instant factual situation does not satisfy the requirements of “abnormal working conditions” as defined by the Board in Red Wing Carriers, Inc., 130 NLRB 1208.

Phillips next instituted the proceeding which is now before us under section 110(b)(2) of the Federal Coal Mine Health and Safety Act of 1969. (30 U. S.C. § 820(b)(2).) Seeking reinstatement, back pay and other damages he contended that his discharge was in violation of section 110(b)(1) of the Act which provides:

(b)(1) No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger, (B) has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or (C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

After a hearing the Trial Examiner (now called Administrative Law Judge) concluded that the company had violated section 110(b)(1) “by discharging the Applicant . . . because he had notified his Mine Safety Committee of alleged safety violations and dangers in the No. 1 Section of Respondent’s mine.” The examiner ordered the company to reinstate Phillips, with back pay and the costs and expenses of the proceeding, including attorneys’ fees.

The Board of Mine Operations Appeals reversed the Hearing Examiner, holding that there was no substantial evidence in the record to justify the Examiner’s conclusion. On the contrary, the Board found the preponderance of the evidence established that the reason for the discharge was

the refusal of Phillips to obey the direct order of the foreman to haul coal. Although the foreman’s action may be looked upon as harsh or extreme, it is not within the province of the Judge or this Board to find that he had no authority to discharge any miner who disobeyed an order to work or otherwise acted in an unreasonable manner. We note that the umpire in the arbitration proceeding concluded, “As unpleasant as it is, the umpire must find that the management had the right under such circumstances to discharge the employee” . . . (Ex. 4(c), p. II). We are concerned here only with the question of whether the discharge was in violation of section 110(b) (1) (A) of the Act. The principal objective of that section is to preserve the integrity of the Act and not to provide a new forum for the litigation of management and labor grievances. [Emphasis supplied by the Board.]

II.

The majority concludes “that Phillips’ notification to the foreman of possible dangers is an essential preliminary stage in both the notification to the Secretary . . . and the institution of proceedings . . ., and consequently brings the protection of the Safety Act into play.” In other words the majority says that when Phillips complained to his foreman he “notified the Secretary or his authorized representative” of the alleged violation or danger, within the meaning of section 110(b) (1) of the Act. I cannot accept this construction of the statute.

In the first place it seems to me that the phrase “the Secretary or his authorized representative” on its face plainly does not mean a foreman or the mine employees serving on a safety committee. If Congress had intended the phrase to have such an inclusive meaning, so that any complaint by a miner concerning safety clothed him with the protection of section 110(b)(1), I think Congress would have said so. If the majority opinion were presented to a congressional committee considering amendments to the Act it might persuade the committee that section 110(b)(1) should be broadened to cover all safety complaints no matter to whom they are made; but this court is not a legislative committee.

My conclusion is reinforced when section 110(b)(1) is considered in the context of other sections of the Act. Thus the phrase “the Secretary or his authorized representative” appears elsewhere in the statute; it is not an isolated phrase used only in section 110(b)(1). Section 103(a), 30 U.S.C. § 813(a), requires that “Authorized representatives of the Secretary shall make frequent inspections and investigations in coal mines . . . .” Section 103(b)(1) gives the Secretary “or any authorized representative of the Secretary” a right of entry to any coal mine for the purpose of inspection or investigation. Section 103(e)’provides that in the event of an accident in a coal mine where rescue and recovery work is necessary “the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activity in such mine.” Section 103(f) empowers “an authorized representative of the Secretary” to issue safety orders in the event of any accident occurring in a coal mine. Section 103(g) provides: “Whenever a representative of the miners has reasonable grounds to believe that a violation of a mandatory health or safety standard exists, or an imminent danger exists, such representative shall have a right to obtain an immediate inspection by giving notice to the Secretary or his authorized representative of such violation or danger.” Section 103(h) directs that at the commencement of any inspection of a coal mine “by an authorized representative of the Secretary, the authorized representative of the miners at the mine at the time of such inspection shall be given an opportunity to accompany the authorized representative of the Secretary on such inspection.” Section 104, 30 U.S.C. § 814, deals in detail with the findings to be made and the actions to be taken by “an authorized representative of the Secretary”, with respect to dangers or violations of health or safety standards discovered upon an inspection of a coal mine.

From these numerous references to “authorized representative of the Secretary” in the statute it seems plain to me that when Congress used those words in section 110(b)(1) it meant a mine inspector or some other designated agent of the Secretary, and not some committee or other representative of the miners. I think the purpose of section 110(b)(1) is to protect the integrity of the agency’s investigative procedure by assuring that a miner who complained to the agency would not be penalized. To hold that the section applies to a miner who had never complained to the agency is I think to distort the statute.

My reading of the Act is confirmed by Senator Kennedy’s comments on the floor of the Senate at the time he offered the amendment which ultimately became section 110(b) (l)-(3). The Senator offered his amendment as an addition or amendment to section 301 (h) of the Senate bill. Section 301(h) of the Senate bill became section 103(g) of the statute as enacted. (See p. 785 supra.) The Kennedy amendment was added to the Senate bill as section 301(h)(2). The Senator said: “My proposed amendment would make it unlawful for any person to discharge or otherwise discriminate against a miner for bringing suspected violations of this act to the attention of authorities.” 115 Cong.Rec. 27948. (Emphasis added.) By thus referring to “authorities” and coupling his amendment to those sections of the bill which dealt with inspections by an authorized representative of the Secretary, the Senator made it clear that the authorities he had in mind were mine inspectors or other designated agents of the Secretary. See Legislative History of the Federal Coal Mine Health and Safety Act 540-41 (Comm.Print 1970).

In his remarks on the floor Senator Kennedy noted that his proposed amendment to section 301(h) “gives to miners the same protection against retaliation which we give employees under other Federal labor laws.” 115 Cong.Rec. 27948. Among the other Federal labor laws to which the Senator referred was the National Labor Relations Act. That act provides, 29 U.S.C. § 158(a) (4), that it shall be an unfair labor practice “to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter.” It has been held however that this section does not protect an employee who has not complained to the Board or one of its agents. Hoover Design Corp. v. NLRB, 402 F.2d 987 (6th Cir. 1968). See NLRB v. Scrivener, 405 U.S. 117, 125 n. 6, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972).

I am puzzled by the majority’s suggestion that Phillips came within the protection of section 110(b)(1) because he was “unfamiliar with the elaborate appeal and review procedure” established by the collective bargaining agreement. Neither do I understand the suggestion that the mine management was under a duty to explain matters to Phillips. I think the proper interpretation of the statute should not depend upon whether Phillips understood the collective bargaining grievance procedure. Moreover, I believe it was the function of the Union, which represented Phillips, and not the company, to explain the procedure to him if he was unable to understand it. In any event the record does not establish that Phillips was unfamiliar with the procedure; on the contrary he displayed considerable expertise in that field. He personally took his complaints to the Mine Safety Committee and he testified that he knew about this grievance procedure. (See addendum to Gov.Br. pp. la-3a.)

III.

The majority concludes that the “bare words of the Safety Act would be completely ineffective” unless “implemented by some procedure at the mine”. I think this argument fails when examined in the light of the true scope of section 110(b)(1) and the additional remedies available to a miner who is concerned about his safety in the mine.

A miner who is concerned about conditions in the mine which he considers dangerous is protected by both his collective bargaining agreement and by section 502 of the Labor Management Relations Act, 29 U.S.C. § 143. In this case Phillips asserted his rights under the collective bargaining agreement and lost, because the umpire found that his discharge did not violate the agreement. He then invoked his remedy under section 502 of the Labor Management Relations Act, and lost again, because the Regional Director of the NLRB held that conditions in the mine were not “abnormally dangerous” within the meaning of the statute. See Gateway Coal Co. v. UMW, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). Thus, before invoking the Mine Safety Act Phillips could and he did seek redress in two other forums, one provided by his contract, the other by statute. He was unsuccessful, not because procedures for redress were unavailable or defective, but because the evidence failed to support his claim.

Although the majority, citing a finding by the Examiner, suggests that Phillips’ discharge did violate the collective bargaining agreement (Op. p. 780) this matter is not relevant to the issue before us. We are not reviewing the decision of the umpire. The only issue before us is whether Phillips’ complaint to a fellow employee brought him within the protection of section 110(b)(1) of the Mine Safety Act; the question is not whether his discharge violated the collective bargaining agreement. Section 110(b)(1) forbids an employer to discharge a miner because he has notified the Secretary or his authorized representative of any alleged violation or danger; it is not directed at discharges for refusal to work or discharges in violation of a collective bargaining agreement.

The majority commends the Kencar Mine management and the Union for adopting “a procedure to bridge the gap between the miner in the pit and the Federal Bureau of Mines, the Secretary’s representative.” The majority then reasons that Phillips was protected against discharge because his complaint to his foreman was “the first prescribed step under the Kencar procedure to invoke the Mine Safety Act”. I do not understand how an “authorized representative” of the Secretary can be created, and the scope of the statute expanded, by an agreement between the company and the Union. Assuming that the hiatus perceived by the majority exists —an assumption I think unwarranted, given section 502 of the Labor Management Relations Act — the gap can be closed only by act of Congress. The statute cannot be amended by a collective bargaining agreement.

IV.

The decision of the Board of Mine Operations Appeals rested on two independent grounds. First, the Board found there was no substantial evidence to support the finding of the Trial Examiner that Phillips was discharged because of his safety complaints and safety activities. After reviewing the evidence the Board found, contrary to the Examiner’s conclusion, that the reason for the discharge was the refusal of Phillips to obey the direct order of his foreman to haul coal. Second, the Board found that even if the discharge were motivated by Phillips’ safety complaints to the foreman and the Mine Safety Committee, as a matter of law this would not bring him within the scope of section 110(b)(1).

Holding that the Board’s second independent ground was wrong, the majority is nevertheless bound by the Act to affirm the decision of the Board if the Board’s conclusions of fact are supported by substantial evidence. Section 106(b) of the Act, 30 U.S.C. § 816(b), relating to judicial review of any order or decision issued by the Secretary or the Panel, provides: “The findings of the Secretary or the Panel, if supported by substantial evidence on the record considered as a whole, shall be conclusive.”

Instead of examining the Board’s findings to determine whether they are supported by substantial evidence, the majority selectively credits testimony, and proceeds to “reject the Board’s suggestion that Phillips was discharged only for a simple refusal to work.” The majority then finds as a fact “that the effective cause of Phillips’ discharge was his complaint about hazardous working conditions in the mine”; and the majority orders Phillips to be reinstated with back pay, costs, expenses and attorneys’ fees.

In my judgment the majority opinion violates the standard of judicial review commanded by section 106(b). There was conflicting testimony in the record, but considering all the evidence introduced at the hearing, I cannot say there was no substantial evidence to support the Board’s conclusion. Although my colleagues have drawn a different conclusion from the same facts this does not authorize them to upset the Board’s findings and substitute their own. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

V.

The impact of this decision on mine operations will be substantial. Even more important and significant, in my opinion, is the determination of my colleagues to override a clear and unambiguous statutory provision and substitute the broader protection which they believe miners ought to have as a matter of policy. This is an intrusion into the legislative domain in which I cannot join.

I respectfully dissent.

      . 83 Stat. 742, 30 U.S.C. § 801 et seq. (1970).

      . 30 U.S.C. § 820(b)(1).

      . The discharge slip stated that he was fired “For interfering with the operation of the mine and abridging the rights of management. Also refusing to obey a direct and proper order.” Further, the slip said that “In addition you have received 3 disciplinary action slips since 1969 — two for irregular work, and one for unsatisfactory work.”

      . See Decision of Hearing Examiner (Administrative Law Judge) ¶ 8, in Appendix for Petitioner [hereinafter App.] at 15.

      . , See ihid. The Union District Safety Coordinator has the duty of coordinating resolution of safety complaints between miners and mine operators, federal inspectors, and state inspectors.

      . The record does not indicate the impetus behind this particular inspection. See id. ¶ 10, in App. at 16.

      . Id. ¶ 9, in App. at 15-16.

      . Id. ¶¶ 15, 16, in App. at 17.

      . Id. ¶ 19, in App. at 19. We assume Phillips was a troublemaker for Kencar; the question is whether such troublemaking was justified legally.

      . Id. ¶¶ 19, 20, 21, in App. at 19.

      . Addendum to Brief of Respondent at 4a-5a [hereinafter Add.].

      . The opinion expressed by the NLRB Regional Director in a letter, relied on by our dissenting colleague, “. . . that there were no employees, other than Franklin Phillips, who had complained to their supervisor about the dust conditions in the mine on the date in question,” is irrelevant and obscures the relevant facts. The shuttle car operator, Phillips, and the loader operator, Justice, were the two in position to know "whether the spray was operating properly, before the other men would necessarily be aware of the resulting increase in dust. The spray was not operating properly and it was the loader operator Justice who in this instance initiated the work stoppage to clean the spray.
      Significantly, the loader operator Ermil Justice was not discharged, nor does he seem to have been disciplined for his participation in cleaning the water sprays. The obvious inference is that Phillips was singled out because of his previous safety complaints, none of which were shown to be unjustified.

      . The foreman’s testimony was as follows: When I went to the loader, I asked Er-mil Justice, the loader operator, “What was the trouble,” and he said Franklin Phillips said he didn’t have enough water. So I told him to turn it on, to turn the water on and let me see it, to see how much water pressure he had.

        I asked Franklin Phillips, I saw the water was good water and I asked Franklin Phillips to get on his buggy and he told me he wasn’t going to haul no coal.
      Q : Did he give a reason ?
      A: Not the first time, I don’t think he did. And I asked him again. I told him, “Get on your buggy and haul coal,” .and he didn’t give me a reason then. So I asked him a third time and he said he wasn’t going to haul no coal and that’s when I fired him for refusing.
      Q: Did you determine at that time whether these men had poor water pressure before they took the sprays off?
      A: No. I observed the water earlier in the shift and it was good water.
      Add. at 17a-18a.

      . See App. at 22.

      . Ibid. The arbitration agreement and proceeding do not preclude the court from taking jurisdiction of the Mine Safety Act question. The recent Supreme Court decision in Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974), is not to the contrary. Phillips had begun the mine safety complaint process by notifying his foreman of the possibility of a dangerous condition, and was then fired by the foreman. This is very different from the situation in Gateway Goal, where the union struck to protest the alleged safety hazard created by retention of foremen who had falsified safety records. Furthermore, the arbitrator here specifically denied that he liad authority to consider the Safety Act. Thus, if the court does not interpret and enforce the Act, the Act will lose any effectiveness whatever.
      Our interpretation of the relationship between arbitration and the Mine Safety Act is quite similar to the Supreme Court’s analysis in an employment discrimination case, Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, (1974). There Justice Powell, writing for a unanimous Court, held that an employee’s right to a trial de novo under Title VII of the Civil Rights Act of 1964 (concerning his discriminatory discharge) was not precluded by previous submission of the grievance to final arbitration under the collective bargaining agreement.

      . See Brief of Intervenor, Bituminous Coal Operators’ Association, at 4. No appeal was taken from the Regional Director’s decision.

      . 30 U.S.C. § 820(b) (1) mandates that
      No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger, (B) has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or (C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

      . Decision of Administrative Law Judge, in App. at 24 n. 4.

      . Id. ¶ 33, in App. at 21.

      . Id. ¶ 34, in App. at 22.

      . The Administrative Law Judge’s findings are quoted in text at notes 19, 20 supra.

      . Decision of Board, in App. at 37.

      . Id. at 39. This has been the position of the Board in another case which is presently before this court, Munsey v. Morton, No. 72-2095.

      . Responsible mine operators who comply with health and safety standards have an obvious interest in seeing uniform standards enforced throughout the industry: competitors who get away with cutting costs by cutting safety are really engaged in unfair competition ; the temptation to meet it by engaging in similar tactics is ever-present.

      . In the latest of the series, excessive coal dust had been officially found within one month of Phillips’ discharge. See pp. 774, 775 supra.

      . 30 U.S.C. § 820(b) (1).

      . See Decision of Administrative Law Judge ¶ 6, in App. at 14.

      . Ibid. Emphasis supplied. The actual practice of the mine followed steps (1) and (2) of the theoretical model, but it varied thereafter. If the Mine Safety Committeeman could not get the foreman to take appropriate action, he would either call in a federal inspector or transmit the complaint to the Union District Safety Coordinator, who might later call in a federal inspector. Id. ¶ 7, in App. at 14-15. Several times in the months before Phillips’ discharge the Union District Safety Coordinator was required to step in and request modifications for safety; the spot federal inspection also unearthed safety defects.

      . The collective bargaining agreement is in-apposite because the umpire here explicitly refused to consider the Mine Safety Act and its coverage of safety threats of a non-immediate nature. See p. 776 supra. And, there had been not only coal dust but defective wiring violations recently found in this mine (see p. 774 supra) ; excessive dust plus defective wiring is an explosive safety hazard; we cannot assume that Phillips’ complaint went only to a long-term health hazard.

      . Decision of Administrative Law Judge ¶ 6, in App. at 14.

      . The discharge slip was quoted in note 3 supra. The Administrative Law Judge found that the three disciplinary action slips “were not pressed or proved by the Respondent at the hearing. On the contrary, tlie foreman testified that [Phillips] had been a very good worker — as good as ‘any miner in the section.’ X find from the evidence as a whole that the above added charges' had no bearing upon the foreman’s decision to discharge.” Decision of Administrative Law Judge ¶ 26, in App. at 20-21.

      . See text at n. 24 supra. While previously Phillips had filed safety complaints as an employee, after his discharge he apparently assumed this channel was no longer open to him. Of course, to endorse this limited concept of the Safety Act’s scope would be to put a premium on the company firing first, before the employee has a chance to institute a proceeding with the Secretary’s representative. To hold that only a discharge after a formal proceeding has been instituted is protected, but that a discharge after the miner has taken the first step in the complaint procedure by complaining to his foreman is not protected, would be to invite all employers to gut the Safety Act by quick discharges of complaining employees. Yet this is where the Board’s view, endorsed by the dissent here, would inexorably lead us.

      . 115 Cong.Rec. 27948 (1969).

      . Ibid.

      . Thus we suggest it would be improper narrowly to construe Senator Kennedy’s comment that his amendment would prohibit discrimination against miners for bringing violations “to the attention of authorities.” Ibid.

      . House Comm, on Education and Labor, 91st Cong., 2d Sess., Legislative History, Federal Coal Mine Health and Safety Act 1122 (1970) (emphasis added).

      . St. Marys Sewer Pipe Co. v. Director of U.S. Bureau of Mines, 262 F.2d 378 (3rd Cir. 1959) (citations omitted).

      . 115 Cong.Rec. 27948 (1969).

      . 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972).

      . Id. at 122 quoting John Hancock Mut. Life Ins. Co. v. NLRB, 89 U.S.App.D.C. 261, 263, 191 F.2d 483, 485 (1951).

      . 405 U.S. at 122, 92 S.Ct. at 801.

      . In stating the purpose and goals of the Act, the Congress declared that “the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource — the miner; . . . there is an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation’s coal mines in order to prevent death and serious physical harm, and in order to prevent occupational diseases originating in such mines.” 30 U.S.C. § 801(a), (c).


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge:

license: Public Domain

text:
    Jessie STEARNS, Appellant, v. VETERANS OF FOREIGN WARS, a corporation chartered by Congress of the United States.
    No. 73-1197.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 25, 1974.
    Decided June 19, 1974.

      Charles E. Robbins, Washington, D. C., for appellant.
    Wilmer S. Schantz, Jr., McLean, Va., for appellee.
    Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.
   LEVENTHAL, Circuit Judge:

Appellant, a female veteran, applied for membership in the Veterans of Foreign Wars (VFW), an organization of veterans having military service outside the United States entitling them to a recognized campaign medal. Her application was denied, and she sues the VFW for damages and an injunction directing reconsideration of her application, which she alleges was denied solely because of her sex.

The VFW is a corporation chartered by Act of Congress, 36 U.S.C. § 111 et seq. The constitution of the VFW limits membership to men who meet the military service requirements. Appellant contends that VFW’s restriction of membership to qualified males violates the due process clause of the Fifth Amendment. The District Court found jurisdiction under 28 U.S.C. § 1331 and, treating the VFW’s motion for judgment on the pleadings as a motion for summary judgment, dismissed the complaint. Stearns v. VFW, 353 F.Supp. 473 (D.D.C.1972).

The membership provision of the charter, 36 U.S.C. § 115, provides in pertinent part that

No person shall be a member of this corporation unless he has served honorably as an officer or enlisted man in the Armed Forces of the United States of America in any foreign war,

. insurrection, or expedition .... The District Court found that this provision does not restrict the membership of the VFW to males:

The use of the pronoun “he” and the words “enlisted man” cannot reasonably be construed to be anything more than grammatical imprecision in drafting the clause. Masculine pronouns are often used to refer to antecedents of indefinite or mixed gender' without modifying the meaning of the antecedents. 353 F.Supp. at 475.

This interpretation is supported by the rules of construction codified at 1 U.S.C. § 1, providing in pertinent part that “words importing the masculine gender include the feminine as well . . . . ” In addition, the District Court cited language in the legislative history, and noted that certain officers of the VFW had proposed amendment of the organization’s constitution to delete the “males only” membership restriction, thus indicating their view that the restriction was not mandated by the charter.

Having concluded that the statutory charter did not itself mandate discrimination on the basis of sex, the District Court stated that “the only issue left for the Court is whether or not Congressional chartering alone constitutes the kind of significant state involvement in private discriminations that is violative of the equal protection guarantee in the due process clause of the Fifth Amendment.” The court found that requisite government involvement lacking, citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).

While we are inclined to agree that Congressional chartering alone does not constitute significant government involvement that triggers due process guarantees, appellant insists that Government involvement with VFW goes beyond mere chartering. She points to the requirement of presentations to Congress of annual reports of proceedings and of audits of finances; to VFW’s entitlement to loans or gifts of condemned or obsolete combat material; to its special federal income tax status both in its exemption from a tax on income, 26 U.S.C. § 501(c)(4), and in the deductions from gross income accorded those who make contributions to the VFW, 26 U.S.C. § 170(c); and to the authorization, contained in 38 U.S.C. § 3402, of the Administrator of the Veterans Administration to recognize representatives of the VFW for the purpose of prosecuting claims under laws administered by the Veterans Administration, and the further authorization to furnish office space to VFW representatives.

The foregoing factors establish a color of government involvement with the VFW that is not adequately described as “Congressional chartering.” They invite further examination of the nexus between the VFW and the Government and consideration of how that nexus fits into the doctrine of “state action.”

The procedures followed in the District Court did not embrace such an inquiry. The VFW moved for judgment on the pleadings under F.R.C.P. 12(c). Plaintiff responded with a motion for summary judgment. The court disposed of both motions without oral argument, stating that it was considering matters outside the pleadings and treating the VFW’s motion as one for summary judgment, as is authorized under Rule 12(c). It appears, however, that appellant did not have the opportunity, required when a motion for judgment on the pleadings is treated as a motion for summary judgment, to “present all material made pertinent to such a motion by Rule 56.”

The VFW, had it moved for summary judgment under Rule 56, would have been required under Rule 1-9 (g) of the local rules of the District Court to file a “statement of the material facts as to which the moving party contends there is no genuine issue.” Thereafter, appellant would have had an opportunity to file a statement of issues and affidavits designed to show a dispute as to material facts. In addition, appellant could have sought the protection of Rule 56(f), which provides that

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Until now the appellant has had no occasion in the District Court to make the kind of presentation comprehended by Rule 56. Appellant had no ' right to do so in response to the VFW’s Rule 12(c) motion, which challenged the sufficiency of appellant’s pleadings, particularly the allegations of jurisdiction and of deprivation of constitutional rights. The fact that appellant erred in seeking summary judgment on the theory that the Congressional chartering statutes were alone sufficient to trigger due process guarantees did not disable appellant from bringing forth facts of additional government involvement in order to resist a summary disposition in favor of defendant VFW.

We remand to the District Court so that the appellant may make the kind of showing contemplated under Rule 56 in an effort to avoid summary judgment for the VFW. Our remand is not to be taken as any indication of our views on the merits. The issues raised are of such a nature that we do not think an appellate court should consider them without having the benefit of the judgment of the District Court, rendered after the parties have had an opportunity to develop the full factual background of government involvement with the VFW.

The case is remanded for further proceedings not inconsistent with this opinion.

So ordered.

      . Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

      . The District Court cited an excerpt from the Senate Report on a 1953 amendment to the membership clause extending eligibility to veterans of the Air Force:
      The purpose of the proposed legislation is to broaden the congressional charter of the Veterans of Foreign Wars of the United States, so as to make eligible for membership therein all persons who have served in the Armed Forces of the United States under the conditions specified in the charter and who otherwise are eligible for membership. (Emphasis added.)
      See S.Rep.No.241, 83d Cong., 1st Sess. 2 (1953), U.S.Code Cong. & Admin.News, p. 1668.

      . 36 U.S.C. § US.

      . 36 U.S.C. §§ 1102, 1103.

      . 10 U.S.C. § 2572.

      . The conferral of tax advantage has been held, in certain circumstances, to constitute the kind of government involvement that makes due process requirements of non-discrimination applicable. McGlotten v. Connally, 338 F.Supp. 448 (D.D.C.1972), held that the granting of an income tax exemption under I.R.C. § 501(c) (8) to private organizations excluding non-whites from membership violated the Fifth Amendment. See also Green v. Connally, 330 F.Supp. 1150 (D.D.C.), affirmed per curiam sub. nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971) (I.R.C. does not authorize tax exemption for and deductibility of contributions to private school which excludes non-white students). Similarly, the recognition of the VFW pursuant to 38 U.S.C. § 3402 at least suggests a coincidence of private association and public function which warrants further probing. Cf. Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Gilmore v. City of Montgomery, 473 F.2d 832 (5th Cir. 1973), cert. granted, 414 U.S. 907, 94 S.Ct. 215, 38 L.Ed.2d 145 (1973).

      . Rule 12 (c) provides:
      After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

      . Formerly Role 9 (h).

      . Had appellant presented materials outside the pleadings in response to defendant’s 12(c) motion, the District Court could in its discretion liave excluded them in ruling on the motion. See Young v. First National Bank of Chicago, 85 F.Supp. 68 (N.D.Ill. 1949).


author: McGOWAN, Circuit Judge.

text:
    Licia T. M. CARDINALE, Appellant, v. WASHINGTON TECHNICAL INSTITUTE et al.
    No. 73-1672.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 22, 1974.
    Decided June 25, 1974.

      Richard J. Medalie, Washington, D. C., for appellant.
    Leo N. Gorman, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief for appellee.
    Before FAHY, Senior Circuit Judge, and McGOWAN and WILKEY, Circuit Judges.
   McGOWAN, Circuit Judge.

The only question presented by this appeal is whether appellant’s complaint sufficed to invoke the jurisdiction of the United States District Court. Finding that it did, we reverse.

I

Appellant was a nontenured teacher at the Washington Technical Institute, a District of Columbia institution of higher learning. In May of 1970, she was given notice that the Institution proposed to end her employment in order to accommodate a reduction in the work force necessitated by financial stringen-cies. The termination date was subsequently extended in order to provide two weeks notice, and her employment ceased on June 15, 1970. At no point, appellant alleges, was she given a hearing or a formal statement of reasons why she, rather than persons of lesser seniority, was selected for termination.

Following unsuccessful negotiations for reinstatement, appellant filed suit in the District Court, asserting that her dismissal violated Section 1 of the Civil Rights Act, 42 U.S.C. § 1983, as well as rights guaranteed to her by the First and Fifth Amendments. Jurisdiction was invoked under 28 U.S.C. §§ 1331 and 1343. Additionally, appellant asserted two claims based on breach of contract and allegedly falling within the court’s ancillary jurisdiction.

The Supreme Court’s subsequent decision in District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), made it clear that appellant could not maintain an action founded upon Section 1983, as to which 28 U.S.C. § 1343 is the jurisdictional counterpart. She continued, however, to pursue her constitutional and contractual claims. Thereafter, on defendant’s motion, the District Court certified the case to the Superior Court of the District of Columbia under 11 D.C.Code § 922(b).

Except for certain exceptions not pertinent to this case, Section 501 of Title 11 of the D.C.Code invests the District Court with a general jurisdiction over civil matters with an amount in controversy exceeding $50,000. The life of that jurisdictional grant is expressly limited to a thirty-month period following the effective date of the District of Columbia Court Reorganization Act of 1970. Likewise, Section 922(b) of Title 11 grants the District Court the power to certify actions to the Superior Court during that same transitional period if it appears to the court’s satisfaction that the case will not justify a judgment in excess of $50,000, and “the action does not otherwise invoke the jurisdiction of the court.” 11 D.C.Code § 922(b). The basic purpose of Section 922(b) is, thus, to enable the District Court to certify cases to the Superior Court upon a determination that the plaintiff has improperly attempted to invoke the District Court’s general jurisdiction, and that no independent head of federal jurisdiction exists.

In the instant case, the District Court found itself lacking in general jurisdiction for want of the requisite jurisdictional amount; and it concluded that there was no basis for invocation of its purely federal jurisdiction. Appellant does not now challenge the former finding, and the sole question on appeal is whether the complaint states a claim sufficient to invest the District Court with jurisdiction under 28 U.S.C. § 1331.

II

Appellant maintains that the recent Supreme Court decisions in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), clearly indicate that her complaint is responsive to 28 U.S.C. § 1331. Like the instant case, both Roth and Sindermann presented procedural due process challenges to refusals by public educational institutions to rehire nontenured faculty members. In each case the plaintiff-teachers alleged, as did appellant in the instant case, that the nonrenewal of their teaching contracts without prior provision of a statement of reasons or an opportunity for a pre-termination hearing violated their rights of procedural due process under the United States Constitution.

Both Roth and Sindermann arose as appeals from district court grants of motions for summary judgment against the respondent teachers. In Roth, supra, at 577, 92 S.Ct. at 2709, Justice Stewart summarized the salient constitutional principle for determining who might properly bring a challenge based on deprivation of property interests without procedural due process of law:

Certain attributes of “property” interests protected by procedural due process emerge .... To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right of a hearing to provide an opportunity for a person to vindicate those claims.

Applying this principle, the Court held that the district court had properly granted summary judgment in Roth but that the teacher in Sindermann had alleged a legitimate claim of entitlement to continued employment sufficient to enable him to survive a motion for summary judgment.

In both cases the Court looked to the complainant’s asserted contractual rights, and to the general policies and understandings existing at the respective institutions, in order to determine whether the claims of entitlement to continued employment were legitimate. In Roth, the Court concluded that the terms of the appointment in issue, and the statutes and regulations governing it, did not provide any basis for a legitimate expectancy of continued employment, since they clearly indicated that the employment was only for one year and that any determination to rehire was left “to the unfettered discretion of university officials.” Roth, supra, at 567, 92 S.Ct. at 2704.

As in Roth, the complainant in Sinder-mann lacked formal contractual or tenure security in continued employment. That fact alone was not dispositive, however, for there had been alleged the existence of binding understandings fostered by the college administration which had led the complainant and other nontenured faculty members legitimately to anticipate continued employment. The Court ruled that these allegations were such as to preclude summary judgment, and that the complainant was entitled to try to establish the legitimacy of his expectancy and thereby lay the foundation for his claim of deprivation of procedural due process.

The Sindermann allegations were that (1) a provision that had been in the college’s official guide for many years offered a form of de facto tenure on which the complainant and other members of the faculty had relied, and (2) guidelines promulgated by the coordinating board of the state college and university system also gave rise to a legitimate expectancy in some form of job tenure. These allegations, in the opinion of the Court, distinguished Sinder-mann’s case from that of Roth, for these allegations appeared to suggest the existence of “such rules or mutually explicit understandings that support his claim of entitlement to the benefit” and thereby give rise to a claim under the Constitution to the protections of procedural due process. Sindermann, supra, 408 U.S. at 601, 92 S.Ct. at 2699. Sinder-mann’s allegations, if proven, would “obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.” Id. at 408 U.S. 603, 92 S.Ct. at 2700.

As the District Court recognized in the ease before us, appellant’s amended claims for relief set forth allegations quite similar to those held to survive an adverse motion for summary judgment in Sindermann. Appellant alleged that one provision of the Washington Technical Institute’s official statement entitled Policies, which had been adopted by the WTI Board and circulated to all WTI teachers and academic staff, provided that “[f]or purposes of retention of employment in the event of a reduction in the size of the budget appropriations, actions that result in a reduction of faculty, seniority shall be institute-wide,” and that, in any event, any faculty member in his field who is less senior than he is . . . .” Plaintiff’s Amended Complaint, ¶¶ 26 and 29; JA at 19. Moreover, appellant alleged that another section of the same WTI Policies defined “faculty” to include instructors and Development Advisors. Id. ¶ 28.

Appellant, who was hired as an instructor and later promoted to the position of Development Advisor, claimed to be first in seniority among those in the social science field, and generally to have seniority on an institute-wide basis over all other faculty members who had commenced employment after April 8, 1969. Id.¶¶ 11, 12, 13, and 30; JA at 16, 19. Additionally, appellant alleged that another section of the same WTI Policies provided that probationary faculty members should be afforded notice of a decision to terminate employment no later than March 1, and that failure to provide such notice by that date would entitle the probationary faculty member to employment for an additional year. Id. ¶ 32; JA at 20. Appellant finally alleged that she had justifiably relied on these various representations, and that her termination without provision of written reasons and a pre-termination hearing deprived her of a property interest without due process of law.

These unchallenged allegations, which under Sindermann would appear to establish a sufficiently meritorious foundation for a claim of deprivation of procedural due process to survive an adverse motion for summary judgment, obviously set forth a claim that “arises under the Constitution ... of the United States.” 28 U.S.C. § 1331(a), Thus, unless the District Court properly determines that one of two narrow exceptions is applicable, jurisdiction has attached and it must proceed to the merits. Bell v. Hood, 327 U.S. 678, 681-682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

As the Court noted in Bell v. Hood, id. at 682-683, 66 S.Ct. at 776, cases which appear to invoke federal jurisdiction “may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.” Examination of appellant’s complaint reveals that neither of these exceptions applies to the instant case.

To the extent that the District Court’s determination to certify the case to the Superior Court reflected a view that the constitutional issue set forth in appellant’s complaint is insubstantial or frivolous, it represents a misapprehension of the court’s role in a motion to dismiss for want of jurisdiction. While the sub-stantiality doctrine is a recognized principle affecting the power of a federal court to adjudicate federal issues, its role is characterized by the Supreme Court as a limited one. See Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) and cases cited therein. Given Sindermann appellant’s complaint can hardly be characterized as insubstantial or frivolous. Indeed, it would appear that this complaint would satisfy even the more rigorous view of substantiality posed by the dissenters in Hagans. See id. at 552, 94 S.Ct. 1372 at 1387 (Rehnquist, J., dissenting).

Nor do we agree with the District Court’s view that this complaint falls within the other jurisdictional exception mentioned in Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946), namely, that the federal claim “clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction.” The constitutional claim in this case can hardly be said to be immaterial. Rather, it is intimately related to the nonfederal claims. Neither can the due process claim be said to have been made solely for the purpose of obtaining jurisdiction. It is conceivable that appellant might prevail on this claim and nonetheless lose on the claims based on breach of contract. We see nothing in the pleadings that would suggest that appellant is any less interested in her federal claim than in her local ones.

Finally, to the extent that the District Court’s decision to certify the case to Superior Court might reflect a doubt whether the complaint states a claim on which monetary relief can be granted, it fails to recognize that this is a determination that is made on the merits. Bell v. Hood, supra, at 682, 66 S.Ct. 773. The certification statute speaks only in jurisdictional terms. Any doubt as to the propriety of relief is therefore not a proper ground for certification of a case to the Superior Court.

Ill

The District Court was obviously concerned that the resolution of the federal issue presented by this case requires an examination of the legitimacy of appellant's assertion of an expectancy of continued employment — a matter that appears to turn on questions of local law. We share that concern, but 11 D.C.Code § 922(b) is not an appropriate vehicle for the resolution of this problem.

It is by no means unique that the legitimacy of appellant’s assertion of a property interest, the foundation for her procedural due process claim, depends on questions of local, rather than federal, law. That was also the case in Sindermann and Roth. See Roth, supra, at 578, 92 S.Ct. 2701; Sindermann, supra, at 603, 92 S.Ct. 2694 (Burger, C. J., concurring). However, this fact has no significance to the question of the existence vel non of subject matter jurisdiction. It rather poses one of the difficult questions inherent in the notion of pendent jurisdiction.

Federal courts have long been troubled with the notion that local issues, injected into a federal case only through an assertion of pendent jurisdiction, often become the controlling questions of the case. In many instances the local issue must be considered preliminarily as a means of attempting to avoid a constitutional question. This results in the federal courts being called upon to resolve local questions that might more happily be left to the local courts. While this remains a problem throughout the federal system, the Supreme Court’s pronouncement in Hagans indicates that the general approach should be to favor the resolution of local claims whenever that practice will avoid confrontation of constitutional issues. Hagans, supra, at 546, 94 S.Ct. 1372 at 1383.

The doctrine of abstention might perhaps serve to resolve the conflicting values presented by this case. As Chief Justice Burger indicated in concurrence to Sindermann and Roth, Sindermann, supra at 603-604, 92 S.Ct. 2694, a close interrelationship between the federal procedural due process claim and the underlying local claims may in some cases suggest that the federal court should abstain from deciding the question of constitutional entitlement to notice and a prior hearing pending action by the plaintiff to seek resolution of the local issues in the local forum.

On the record as it now stands, we are unable to determine whether abstention would be appropriate in this case. The question of certification was the first and only issue addressed by the District Court, and appellees have not yet filed an answer to appellant’s complaint. Thus any determination of the certainty or uncertainty of the underlying question of appellant’s legitimate expectancy —a basic prerequisite to a decision on abstention, see, e.g., Sindermann, supra, at 604, 92 S.Ct. 2694 (Burger, C. J., concurring); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (April 30, 1974) — would be ill-advised at the appellate level. Additionally, the District Court might take into consideration other factors, such as the time that has already elapsed in this litigation and the additional delay attendant upon a decision to abstain. Cf. Harman v. Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964). In any event, the question is not now before this court, and we intimate no view as to how it should be resolved if it arises on remand.

The District Court’s order certifying the case to the Superior Court is reversed, and the case is remanded to the District Court for further proceedings consistent herewith.

It is so ordered.

      . While the District Court found that the controversy would not support a verdict in excess of $50,000, it made no finding in relation to the $10,000 jurisdictional amount of 28 U.S.C. § 1331. This statute endows the District Court with jurisdiction of civil actions arising under “the Constitution, laws, or treaties of the United States.”

      . It is interesting to note that the Institute’s Board modified these sections of the Policies, apparently to insure that a case similar to appellant’s will not recur. The new section reads:
      ’ Should a reduction in staff become necessary due to a cut-back in funds, by the granting agency, the Washington Technical Institute, as the sponsor, shall extend a two week notice of intent to terminate to each staff member affected by a reduction in force. The Institute assumes no obligation for providing employment for Special/Grant Projects staff affected by a reduction in force.
      Exhibit 15, JA at 50. The Institute also amended the section relating to seniority to state that its provisions were “not extended to persons employed in Special/Grant Projects.” Id., JA at 51.

      . The Court in Ilagans offered the following review of the substantiality doctrine as it affects the jurisdictional power of a district court to entertain a case:
      The principle applied by the Court of Appeals — that a “substantial” question was necessary to support jurisdiction — was unexceptionable under prior cases. Over the years the Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are “so attenuated and unsubstantial as to be absolutely devoid of merit,” Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795 (1904); “wholly insubstantial,” Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482 (1910); “plainly insubstantial,” Levering & G. Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 77 L.Ed. 1062 (1933); or “no longer open to discussion,” McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 54 L.Ed. 95 (1909). One of the principal decisions on the subject, Ex parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933), held, first, that “[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question be presented” ; second, that a three-judge court was not necessary to pass upon this initial question of jurisdiction; and third, that “[t]he question may be plainly unsubstantial', either because it is ‘obviously without merit’ or because ‘its unsoundness so clearly resultsf rom the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ ” [Citations omitted]

      . We note that appellant’s complaint was initiated in 1971. It asserted both 28 U.S.C. §§ 1331 and 1343 as jurisdictional bases, and also set forth contract claims assertedly cognizable under the court’s ancillary jurisdiction. At that time it was perfectly reasonable to assume that jurisdiction could attach under both federal sections. Indeed, this court subsequently found Section 1983 and the jurisdictional counterpart, 18 U.S.C. § 1343, applicable to the District of Columbia in Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), and that remained the law of this circuit until overruled in 1973 by the United States Supreme Court. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). In view of appellant’s reasonable expectation that jurisdiction would attach under Section 1343, her claim under Section 1331 cannot fairly be characterized, as made solely for the purpose of obtaining jurisdiction.
      The Supreme Court recently dealt with a somewhat analogous situation in City of Ke-nosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). That case began as an action brought under Section 1983 and 28 U.S.C. § 1343 to challenge a municipal license revocation on the basis of an alleged deprivation of procedural due process. After finding that the municipal corporation was not a “person” under Section 1983 and thus that jurisdiction could not be maintained under Section 1343, the Court remanded for consideration of the possible existence of jurisdiction under Section 1331. Moreover, careful examination of the opinion suggests that the only factor causing the Court even to question whether jurisdiction might be found under Section 1331 was whether tire case could be found to support the requisite jurisdictional amount. City of Kenosha, supra at 514, 93 S.Ct. 602; see also id. at 516, 93 S.Ct. 602; (Brennan, J„ concurring).

      . Appellant additionally invites this court to rule that her allegations state a claim under the Fifth Amendment for which money damages can be granted. Pointing out that Biv-ins v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), answered affirmatively the question left open in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773 (1946), of whether Fourth Amendment violations perpetrated by agents acting under the color of authority gives rise to a federal cause of action for damages, appellant urges that we now decide that violations, of the Fifth Amendment right of procedural due process likewise set forth a federal cause of action for money damages. We decline this invitation. As noted above, this is a question that goes to the merits of the case, not to the federal court’s jurisdiction. As such, it is not relevant to an interpretation of 11 D.C.Code § 922(b).

      . Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (March 26, 1974), while not precisely in point, is illustrative of the problem presented in this case. There the Court considered a case in which a complaint joined an equal protection challenge brought under 28 U.S.C. § 1343, a statute for which there is no required jurisdictional amount, with a claim based on the Supremacy Clause brought under 28 U.S.C. § 1331, which requires that the amount in controversy exceed $10,000. By combining the two and asserting the Supremacy Clause as pendent to the equal protection challenge, petitioners in that case were able to litigate the former in the District Court, even though the jurisdictional amount required by Section 1331 would otherwise have precluded federal litigation of the Supremacy Clause claim. Thus, Section 1343 became a vehicle for consideration of a pendent claim that would not otherwise have been litigable in the federal forum, much in the same manner that a state claim might be appended to a federal claim properly brought under Section 1331. Chief Justice Burger and Justices Powell and Rehnquist proposed that the District Court, confronted with a case in which the pendent claim was obviously attached to a weak claim in order to found federal jurisdiction over the former, should dismiss the pendent claim without prejudice to its renewal in another forum and proceed directly to the other matter. Hagans, supra, at 522, 94 S.Ct. 1372. (Rehnquist, J., dissenting).
      Two observations serve to show why that procedure would not be proper in this case. First, Justice Rehnquist’s proposal was advanced in a context in which he considered the independently cognizable federal claim to be a very weak one at best. Appellant’s procedural due process claim, as we have demonstrated previously, cannot be so characterized. Second, Justice Rehnquist’s proposed solution was a minority view.