author: LAY, Circuit Judge. MEHAFFY, Chief Judge

text:
    Larry E. WRIGHT, Appellee, v. ARKANSAS ACTIVITIES ASSOCIATION (AAA), Appellant.
    No. 73-1655.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 17, 1974.
    Decided July 16, 1974.

      Eugene R. Warren, Little Rock, Ark., for appellant.
    Robert M. Ford, Killough & Ford, Wynne, Ark., for appellee.

      Before MEHAFFY, Chief Judge, and LAY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

Larry E. Wright, a teacher and coach at the Blytheville, Arkansas, Senior High School, brought this action against the Arkansas Activities Association (AAA), challenging a disciplinary ruling of the Executive Committee of the AAA.

The AAA is a voluntary association, the membership of which consists of public and parochial schools in Arkansas which maintain competitive athletic programs. The disciplinary ruling grew out of “off-season” football practices conducted at Blytheville in violation of AAA regulations. The challenged ruling placed Blytheville High School on probation for one year conditioned upon the school’s not employing Wright as head football coach for the 1973-74 school year. Blytheville was notified that if it failed to accept the terms of the probation, it would not be allowed to participate in football games with other member schools. Wright was accordingly requested to resign from his $11,994.-93 per year coaching and teaching position with the school.

The district court held that the AAA’s “off-season” football practice regulation did not give Wright fair notice of the possible sanction for its violation, i. e., the impairment of his employment contract as a teacher and coach. In view of Wright’s property interest, the district court held the particular regulation upon which the penalty was based overly broad and unconstitutional. Jurisdiction was found to exist under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. We affirm the judgment of the district court.

At oral argument before this court, the AAA challenged the finding of jurisdiction under § 1983 in light of the Supreme Court’s recent decision in Ke-nosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). In reliance on the holding of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that municipalities are not “persons” under § 1983 for purposes of damage suits, the Court in Bruno concluded that the generic word “person” was not “intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them.” Bruno, supra at 513, 93 S.Ct. at 2226. Thus, the Court held that municipal corporations are not “persons” for purposes of equitable relief under § 1983.

It is now urged by the Activities Association that it should enjoy the same immunity granted to municipal corporations and other political subdivisions, and therefore that it is not amenable to suit under § 1983. The district court recognized that the State of Arkansas and its regularly constituted agencies are not subject to suit. It concluded, however, that the AAA is not a “regularly constituted agency.” The trial judge wrote:

The Court finds that the Association was not created by the Constitution or by any statute of the State of Arkansas, and that it is not “the State” or an ‘(agency of the State” as are agencies like the Arkansas State Highway Department, or the Arkansas Game & Fish Commission, or other administrative or regulatory agencies of a similar nature. Rather, the Association is a regulatory agency established and supported by local school systems in the State on a voluntary basis. Thus, it is not immune from suit, and any decree that may be entered against it will operate upon its Executive Committee and Executive Director.

We find the district court’s characterization of the AAA correct and therefore conclude that the Association does qualify as a “person” under § 1983 and jurisdiction is vested under § 1343(3) as alleged. However, assuming this conclusion wrong and that the AAA is a political subdivision of the state as it is urged, nevertheless, under the complaint filed, the defendant would still be subject to the equitable decree of the federal court since jurisdiction can be found under 28 U.S.C. § 1331(a).

The AAA’s original ruling specifically directed that Blytheville High School suspend Wright from his coaching position for one year. It later revised its order and gave the school district the choice of suspension or probation conditioned on Wright’s dismissal. Regardless of the formal phraseology of its order, it is clear that the AAA’s action was directed against Wright personally and sought his dismissal from the position of teacher-coach at Blythe-ville High School. The charges were directed against Wright; notice was given to him personally and he was accorded a hearing before the Committee. There can be little argument that the Executive Committee’s main purpose was to take punitive action against Wright. Whether the AAA acted directly or indirectly against Wright, has little rele-vanee under the circumstances. Its stranglehold over the school district caused the latter to terminate Wright’s contract. If that termination was the result of coercion improperly applied by the AAA, the AAA is guilty of a wrongful interference with Wright’s coaching contract and the latter has standing to sue for vindication of his injury.

This brings us to the fundamental question of whether the conduct of the AAA denied Wright due process of law. Wright was found to have violated the “off-season” practice rule, found in Article VII of the Association By-Laws. Article VII prescribes no penalty or sanction for a violation of its terms. The AAA relied, however, on § 22 of Article I to impose the penalty against Wright. The difficulty posed is that Article I deals exclusively with the subject of player eligibility. Under the circumstances, the district court found that Wright could not know that the sanctions existing under § 22 of Article I could be invoked against him for a violation of Article VII.

One of the fundamental requirements of fairness implicit within due process is “warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) (per Justice Holmes). Legal notice to those affected has always been a prerequisite to lawful punitive action. Cf. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 375, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Bouie v. City of Columbia, 378 U.S. 347, 353 n. 4, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

In the present case Wright was given notice by the AAA rules that a member school was prohibited from engaging in football practice before a specific date each year. However, there was no warning that the AAA could decree punitive sanctions directly affecting his contract of employment if that rule was broken. We agree with the district court that the attempt by the Association’s Executive Committee to punish Wright without fair notice that his employment contract could be coercively terminated if he violated the AAA’s rules was fundamentally wrong. Wright’s employment was and must continue to be a matter of concern solely between him and his school. Even though it might be argued that Wright had fair notice that certain conduct was prohibited and that it might subject the school to punitive sanctions, there has been no showing that he had notice the AAA could directly or indirectly punish him personally. The regulation itself must provide specific notice; its scope cannot depend upon the subjective appraisals of those involved. Bouie v. City of Columbia, supra at 355-356 n. 5, 84 S.Ct. 1697.

To require the AAA to specify that it will seek suspension and punishment, not only of the school, but of those personally involved in rule violations, is not an undue burden. Without such specificity the possibilities of arbitrary action are enhanced and harm to individual interests would undoubtedly follow. To allow the AAA the power to invoke such penalties against whomever it chooses is contrary to our basic sense of justice.

We affirm the judgment of the district court.

MEHAFFY, Chief Judge

(dissenting).

In April 1973 the Blytheville, Arkansas School District offered plaintiff a one-year contract of reemployment as head football coach at Blytheville High School. Plaintiff accepted this offer. At approximately this same point in time the defendant Arkansas Activities Association was conducting an investigation into charges that the Blytheville School District, through the actions of plaintiff, had violated certain association rules. On June 22, 1973 the association executive committee conducted a hearing regarding the charges. Although four representatives of the school district were present at this hearing, plaintiff apparently declined to attend. At the conclusion of the hearing the association executive committee placed the Blytheville High School on probation for one year and ordered that:

Coach Larry Wright [be] suspended from coaching at any member school for one year because in the opinion of the Executive Committee he knowingly violated AAA regulations pertaining to football practice.

Four days later the Blytheville School District requested the defendant association to conduct a second hearing to enable the plaintiff and the district to present certain additional evidence. On July 5th the association executive committee agreed to rehear the matter. Proceedings in the district court were stayed pending the association rehearing. The second AAA hearing was held on July 13, 1973. Plaintiff attended this hearing with retained counsel, as did representatives of the Blytheville School District. After considering extensive testimony from some twenty witnesses, the association executive committee unanimously concluded that its out-of-season rules for football had been violated by plaintiff’s conduct and ordered that:

•x- * * the Blytheville School District be placed on one year probation and that Blytheville High School may not participate in football games with teams of other members of A.A.A. for a period of one year if such Blythe-ville High School team is coached by Coach Larry Wright.

In response to the association’s investigation and ultimate order the school district reluctantly requested plaintiff’s resignation and offered plaintiff instead a one-year contract as teacher at a substantially reduced salary. Plaintiff agreed to submit his resignation and accept the substitute contract, subject of course to the outcome of this litigation.

Against this factual background the district court concluded that all procedural requirements of the due process clause had been satisfied by the AAA, but that the conditional portion of the association executive committee’s revised order violated plaintiff’s substantive due process rights. The district court sustained the revised order insofar as it placed the Blytheville School District on probation, but the court ordered the AAA to rescind that portion of the order that offered the school district a partial reprieve on condition that it forego the football coaching services of plaintiff for one year.

If this case involved the validity of the defendant association’s first order, I might well be able to concur in the result reached by the district court and the majority. The original executive committee order purported to terminate plaintiff’s existing contract and to impair substantially plaintiff’s ability, at least for one year, to pursue his chosen profession. I believe there is substantial doubt that the defendant association could, within the limits of due process, take such drastic, direct, and unilateral action against the property interests of a non-member of the association without some basis of authority in the association rules.

I am convinced, however, that the association’s revised order, which is the only action in question before us, presents significantly different constitutional considerations. The revised order directly affected only the Blytheville School District, an association member. The nature of the order, to the degree it affected the association member, was clearly authorized by the discretionary sanctioning power expressly vested in the association executive committee by the AAA rules. The second hearing held by the AAA to reconsider its original order was full, fair, and could hardly be viewed as a sham to cure any prior procedural inadequacies. Finally, and most importantly, there was nothing in the revised AAA order that altered plaintiff’s existing contract rights visa-vis his employer or directly impaired his ability to pursue his chosen profession.

I realize, of course, that the executive committee’s revised order did place the school district on a painful election of either terminating plaintiff’s existing contract or foregoing the AAA football competition of one of its schools for one year. In facing this option, however, the school district was confined by the contractual obligations it had already made to plaintiff. Thus, if plaintiff’s violation of AAA rules did not constitute grounds for modification or termination of his contract by the school district, the school district would be in no position to unilaterally satisfy the conditional aspect of the executive committee’s order. If, on the other hand, the school district had made compliance with AAA rules a condition of plaintiff’s contract, then he would be in no position to claim inadequate or unfair notice.

The majority opinion suggests that the due process restrictions on the AAA reach beyond direct and unilateral deprivation of plaintiff’s property rights to include any “wrongful interference with Wright’s coaching contract.” Interference by a third party with the contractual relations between others has, of course, been recognized for many years as a basis in tort law for granting damages and injunctive relief. See, e. g., W. Prosser, Torts § 123 (3rd ed. 1964); Restatement of Torts § 766 (1939). Assuming for purposes of argument that the due process clause, by some analogy to tort law, does confer a federal constitutional right to be free from all state action that could interfere unduly with contractual relationships, I cannot agree that plaintiff is entitled to relief in this case.

There is no doubt that the AAA order in question indirectly, but nonetheless substantially, modified plaintiff’s employment relationship. Claims for tor-tious interference with contractual relationships, however, have always been subject to the defense of justification or, in the language of the Restatement, “privilege.” I am firmly convinced that the AAA’s order was justified even though it may have amounted to a significant practical impairment of plaintiff’s relationship with the Blytheville School District. It is undisputed that the association executive committee could properly have ordered a suspension of all Blytheville School District participation in AAA athletic competition as a sanction for its violation of association rules. Such a sanction, however, would have punished severely the students and other participants in AAA activities who were entirely innocent of the wrongdoing. The sanction ultimately selected by the association was one that was not only authorized by the AAA rules, but also was drawn as narrowly as possible to punish only those primarily responsible for the rule violation. Indeed, I cannot imagine a sanction more suitably fitted to the dual purpose of protecting the integrity of the admittedly valid association off-season practice rules while limiting the impact of the punishment to those primarily culpable in their conduct.

I respectfully dissent.

      . Although no tenure is afforded a teacher in the Arkansas school systems, at the time of the sanction in question Wright had already been awarded his 1973-74 contract with the Blytheville school district.

      . Although the AAA does not enjoy immunity, the district court found the requisite state action under § 1983, observing:
      While the Association is not a State agency that is immune from suit, it appears to be established, nevertheless, that the actions of athletic associations like the one before the Court in regulating public school athletic activities and imposing sanctions for rule violations are State actions and fall within section 1983 where they violate federally protected rights.
      We agree. See generally Brenden v. Independent School Dist. 742, 477 F.2d 1292 (8th Cir. 1973).

      . Although § 1331(a) was not specifically pleaded in the complaint, a review of the operative facts reveals that a federal constitutional question exists and that the amount in controversy exceeds $10,000. As we held in State Highway Commission v. Volpe, 479 F.2d 1099 (8th Cir. 1973) :
      [T]here is no need for this court to remand in order to amend the pleadings to specifically allege 1331(a) as a basis of jurisdiction. See Norton v. Larney, 266 U.S. 511, 516, 45 S.Ct. 145, 69 L.Ed. 413 (1925). We can assume that the complaint has been amended to conform to this fact and proceed to review the district court’s judgment on the merits. See also National Farmers Union Property & Casualty Co. v. Fisher, 284 F.2d 421, 423 (8 Cir. 1960) ; Parker v. Gordon, 178 F.2d 888, 890 n. 2 (1 Cir. 1949).

        State Highway Commission, supra at 1105-1106.

      . Section 22 provides:
      Penalties. If the rules and regulations of this Association are violated, the Executive Director shall make careful investigation of the violation and shall take action in accordance with the Constitution and By-Laws of the Association. Where no penalty is specifically provided, he may fix a penalty subject to the approval of the Executive Committee.

      . The district court in Kelley v. Metropolitan County Bd. of Education, 293 F.Supp. 485 (M.D.Tenn.1968), recognized the same principle on facts somewhat similar to those presented here. Students in a Nashville high school challenged the suspension of that school’s athletic program for one year by the board of education. Several students had created disturbances at a basketball game in which their school had been a participant. In response to this misconduct, the board suspended that school from all athletic competition. The court found that the suspension violated due process since neither the standard of conduct expected nor the punishment to be imposed for a violation were specified.

      . Even in the absence of state action, it has long been held that a member in a voluntary association cannot be suspended or subjected to expulsion unless the by-laws specifically give him notice that certain conduct will subject him to punitive sanctions. See, e. g., Allen v. Office Employees International Union, 53 Wash.2d 1, 329 P.2d 205 (1958) ; Jackson v. American Yorkshire Club, 340 F.Supp. 628 (N.D.Iowa 1971) ; Robinson v. Lull, 145 F.Supp. 134 (N.D.Ill.1956). When the association attempts without notice to inflict coercive sanctions on a non-member of the group, the arbitrariness of the punishment is plain.

      . Without warning to those against whom its sanctions will run, the AAA would have power to suspend not only those who participate in the wrongful conduct, but others who might be blameless as well, i. e., students, teachers, principals and other school officials.


source: Caselaw Access Project

author: GIBBONS, Circuit Judge.

license: Public Domain

text:
    Dr. Joseph T. SKEHAN, Appellant, v. BOARD OF TRUSTEES OF BLOOMSBURG STATE COLLEGE et al., Appellees.
    No. 73-1613.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 25, 1974.
    Decided May 3, 1974.
    As amended June 11, 1974.

      Michael H. Gottesman, Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., Harry Lore, Philadelphia, Pa., for appellant.
    Justin Blewitt, Deputy Atty. Gen., Dept, of Justice of the Commonwealth of Pa., Harrisburg, Pa., for appellees.
    Before BIGGS, GIBBONS and GARTH, Circuit Judges
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

Plaintiff-appellant, Joseph Skehan, a doctor of economics, seeks redress for his midcontract dismissal without a hearing as a nontenured college professor at Bloomsburg State College. The defendant-appellees are Bloomsburg State College, its Board of Trustees, Dr. Robert Nossen, its President at the time of Skehan’s dismissal, Dr. Charles Carlson, its current acting President, and John Pittinger, Superintendent of Education of the Commonwealth of Pennsylvania. Although the College is joined as a defendant, and has a Board of Trustees responsible for its management, Pa. Stat.Ann. tit. 71, § 62, tit. 24, § 20-2008.2, it is not a separately chartered corporation, as in the case of many universities, but a subdivision of the Commonwealth Department of Education, Pa.Stat.Ann. tit. 24, §§ 20-2002(7), 20-2003.1. All the individual defendants are state officers. Skehan was employed as Associate Professor of Economics in January 1969 under a contract extending through the academic year 1969- 70. In May of 1970 he received a letter from Nossen offering him a contract for the 1970-71 school year, but indicating that he would be required to acknowledge in writing notice that this would be a terminal year contract. He accepted the offer of employment for the 1970- 71 academic year, but protested that the nonrenewal decision had been made without affording him the procedures due him before a nonrenewal decision could be made. In that protest he invoked article 5(e) of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College, which provides:

“If a faculty member’s service to the College is to be terminated during the first two years of the probationary [pretenure] period, the President of the College will feel free to explain to the faculty member the basis of the decision, but he shall not be required to do so except in a situation where there is an allegation of infringement of academic freedom. If a faculty member of professional rank, on probationary employment, alleges that a decision not to reappoint him has been caused by considerations violative of academic freedom, his allegations shall be given preliminary consideration by the Committee on Professional Affairs, and the procedures concerning notification, appeal, hearing, and defense outlined in #9 of this document will be followed.”

Article # 9 outlines the notice, hearing and appeal procedures applicable to the dismissal of tenured faculty members. Thus Skehan’s position in May 1970 was that the nonrenewal decision reflected in the terminal year notice was caused by considerations violative of academic freedom and that he was entitled to the hearing procedures referred to in article 5(e). Nossen replied on June 1, 1970:

“I cannot accept your letter of May 29, 1970 as an acceptance of your position for the coming academic year.
If you do not sign the offer of reappointment sent you [with the acknowledgment of notice that it was a terminal year contract], you may consider yourself terminated for the coming academic year.
This is my final letter on this matter.”

Skehan protested to the Board of Trustees that Nossen was violating the Statement of Policy for Continuous Employment and Academic Freedom. On June 15,1970 Nossen wrote Skehan:

“Your appeal to the Board of Trustees, bypassing this office and other avenues of College governance, was reviewed at the Board of Trustees meeting on June 12, 1970. The Board has requested that I advise you as follows.
The Board restates its firm and inviolable position of nonrenewal past the 1970-1971 academic year. In doing so, it reaffirms its position that the offer to you reflects simply its wish to conform fully with accepted notice procedures. The offer is neither a statement of confidence in you nor a wish that you remain during this period. On the contrary, the Board has expressed every hope that you will find it both personally and professionally advantageous to offer your resignation at this time.
The College has prepared a contract form which is applicable to all persons offered appointment. Your refusal, to this point, to return the contract in accord with their prescribed procedures continues to indicate to them your disregard for College procedures. Nevertheless, in view of the original intention to provide due notice, they will accept the alternative letter as an indication of your acceptance of the 1970-1971 appointment as terminal.
I must, however, in all honesty and fairness, join with the Board of Trustees in the hope that you will reject the appointment.”

Thus the College administration in effect rejected Skehan’s request for an article 5(e) hearing on the reasons for the terminal year decision, but rehired him for the academic year 1970-71. Skehan entered into the performance of his academic duties in September. How he performed them is a matter of dispute between him and the defendants. On October 9, 1970 Nossen wrote Skehan:

“You have continued, after repeated warnings from your Chairman, your Dean, the Academic Vice President, and from this office to fail to fulfill your classroom obligations as assigned, according to the procedures in effect at this college. Further, you have flagrantly, wilfully, and maliciously disrupted the instructional program. Upon the recommendation, therefore, of appropriate administrative officers, I am, effective immediately, relieving you of all classroom responsibilities, pending a final hearing.
I hardly need remind you that you are, during this current year, on terminal appointment. You were, at the time that appointment was offered, advised that your previous disruptive activities made your presence on this campus unwelcome, and the hope was expressed that you would not accept. You chose to complete this year, and at the same time you were aware that the offer went well beyond the minimum time necessary for notice, according to the policies of the Trustees ; this was done in consideration of the difficulty you would probably have in finding an appointment in mid year. Despite this, you have failed to cooperate, to fulfill your responsibilities as a classroom instructor, and you have made it impossible for others to meet their assigned responsibilities. Your conduct, therefore, has been reprehensible, unbecoming a member of the profession, and inimical to the welfare of this college.
Should you violate the provisions of this notice and attempt to disrupt any authorized lecture or classroom of this college, full and immediate action will be taken. In the interim, I expect to receive from you, within five days, a full and a complete accountability of your actions on this campus since the start of this semester. Your salary will be continued until a final determination is made.”

Although this letter demanded from Skehan within five days, “a complete accountability of your actions on this campus since the start of this semester,” it was not received by him until October 12, 1970. On October 14 Skehan replied that the suspension had not been preceded by the procedures called for in the College’s policy. On October 19, 1970 Nossen wrote Skehan:

“Once again you have willfully and flagrantly failed to respond to my directive: this time an accountability requested on October 9, 1970. You were given five (5) days in which to make your response detailing your professional actions since the start of this semester.
You have failed to comply and I have no alternative but to remove you from the payroll effective October 17, 1970 subject to final approval by the Board of Trustees.”

Skehan promptly wrote to the Board requesting a hearing. On October 24, 1970 Nossen wrote Skehan:

“The Board of Trustees, at its regularly scheduled meeting on October 23, 1970, confirmed prior dismissal action taken by this office; you are, therefore, fully and finally terminated at this College effective October 17, 1970.”

Skehan went off the College payroll as of October 17, 1970. On December 1, 1970 the Committee on Academic Affairs convened to hold a hearing concerning Skehan’s dismissal. He appeared but declined to participate. On the basis of correspondence and records submitted by the administration the Committee approved the dismissal action.

The defendants do not now dispute that Skehan had a contract of employment for the 1970-71 academic year. Skehan contends, but the defendants dispute, that he had a contract right to a hearing, pursuant to article 5(e), with respect to the reasons for the terminal year decision, which had the effect of depriving him of the opportunity for tenured faculty status after three years. The parties agree that the contract for the academic year 1970-71 was such as under Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), gave Skehan a property interest which could not be terminated without a due process hearing. The defendants contend, but Skehan disputes, that the December 1, 1970 meeting satisfied the requirements of Perry v. Sindermann, supra. The report of the hearing committee on the December 1, 1970 hearing discloses that it dealt only with the October 17, 1970 dismissal, and not with the May 1970 demand for an article 5(e) hearing on the reasons for the terminal year decision. Finally Skehan contends, but the defendants dispute, that both the terminal year decision and his discharge were motivated by the administration’s dislike of his exercise of first amendment rights. Violations of these rights, Skehan contends, entitle him to relief despite the limitation of any property interest in his contract. See Perry v. Sindermann, supra, at 598; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

Skehan filed his complaint in the district court in August 1972, seeking preliminary and permanent injunctive relief of reinstatement and backpay, declaratory relief that his dismissal violated the Constitution, punitive damages, and attorneys fees. A preliminary injunction was denied on January 31, 1973. Skeh-an v. Board of Trustees of Bloomsburg College, 353 F.Supp. 542 (M.D.Pa.1973). Subsequently the parties stipulated that a final hearing could be held on the record developed at the hearing on the preliminary injunction. The district court filed its opinion on May 9, 1973, 358 F.Supp. 430, and a final judgment “that the Plaintiff recover of the Defendants the sum of one dollar ($1.00), together with costs.” Timely motions to amend the judgment to award more than nominal damages and to assess counsel fees were denied. This appeal followed.

The District court found:

(1) that Skehan had a contract of employment for the 1970-71 academic year which was a property interest within the meaning of Perry v. Sin-dermann, supra, and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972);
(2) that the December 1, 1970 hearing before the Committee on Academic Affairs, held a month and a half after termination, did not fulfill the constitutional due process requirements for the termination of his property right in the 1970-71 contract;
(3) that Skehan was discharged because of his refusal to follow directives of the administration with respect to scheduling disputes, and not for the prior exercise of his first amendment rights.

The district court made no finding:

(1) as to whether Skehan had a contractual right to an article 5(e) hearing to determine the reason for the terminal year decision; or
(2) as to whether the terminal year decision was made in retaliation for his exercise of first amendment rights.

In considering the remedy for the due process violation which it found, the district court concluded that it would not be appropriate to order reinstatement and backpay, either to the end of the 1970-71 academic year or to the date of a hearing. The Court reasoned:

“While Plaintiff was deprived of his constitutional right to a hearing prior to dismissal, the deprivation was technical in nature. By such a classification I do not wish to demean a state employee’s right to procedural due process. However, the circumstances surrounding this particular case indicate that had Plaintiff been afforded a hearing prior to his discharge, in all probability the outcome would have been the same. Plaintiff’s discharge was based upon facts rationally determined and for reasons unrelated to Plaintiff’s exercise of constitutional rights. The Plaintiff has not proven any actual damages arising from Defendant’s failure to give him a hearing. However, nominal damages are proven by proof of a deprivation of a right to which the Plaintiff is entitled. . . .” 358 F.Supp. at 436.

We reverse and remand for further proceedings.

I. GOVERNING LEGAL PRINCIPLES

In Board of Regents v. Roth, supra, and Perry v. Sindermann, supra, the Supreme Court considered the various Constitutional rights which might be affected by the dismissal of a college teacher, and the source of those rights. It recognized a dichotomy between employment rights of property based upon a contract between the institution and the teacher, the source of which is the state law of contracts, and rights of liberty based upon provisions of the federal constitution such as the first amendment. As to property rights the appropriate analysis is to determine, under applicable state law, the nature and extent of the contract right and, if the contract right has been terminated other than by expiration of its term, to consider whether the method of termination comported with fourteenth amendment procedural due process. If a procedural due process violation has occurred, the court proceeds to fashion a remedy. With rights of liberty, such as the right of a faculty member to be free from disability imposed for engaging in speech protected by the first amendment, the analysis starts with an inquiry into the substantive reasons for whatever action is complained of. If it is found that either termination or nonrenewal was because of the exercise of protected speech (as an example), the procedural due process of the decision is irrelevant because the substantive decision is illegal as a matter of federal constitutional law. If such a substantive violation of a right of liberty has occurred, the court proceeds to fashion a remedy which, depending on the circumstances, may be the same as or different from the remedy for a procedural due process violation in the property context.

II. THE PROPERTY-PROCEDURAL DUE PROCESS CLAIM

As we pointed out above, the defendants do not dispute that Skehan’s contract for the academic year 1970-71 gave him such a state law property interest as required procedural due process for termination. They urge, however, that the district court erred in concluding that the December 1, 1970 hearing did not suffice. If we were to accept that position, there would be no occasion to reach Skehan’s claim that the district court remedy was inadequate. But there is a substantial difference in the position of the parties once termination has actually occurred. First, the employee, cutoff from the payroll, is greatly disadvantaged in his ability to pursue the hearing remedy. He may be forced -by the necessity for survival to seek other employment which will foreclose the pursuit of reinstatement. Second, the institution will have made substitute teaching arrangements, thus introducing into the hearing consideration of the interests of other faculty members. This inevitability will increase whatever tendency may already exist for the hearing officials to defer to the administration’s decision. We agree with the district court, therefore, that a hearing after the fact is not the due process equivalent of the pretermination hearing required by Perry v. Sindermann, supra. See 358 F.Supp. at 434-435. The termination of Skehan’s 1970-71 contract violated procedural due process.

Skehan presented another contractual claim upon which the district court made no finding — that under article 5(e) he was entitled to a hearing on the reasons for the decision to make the 1970-71 contract his terminal year. The court did make a finding that the October 17, 1970 termination was not the result of Skehan’s earlier constitutionally protected speech. This finding does not dispose of the claim that the terminal year decision was made for reasons prohibited by principles of academic freedom. Within the meaning of the Statement of Policy for Continuous Employment and Academic Freedom, academic freedom may have a meaning broader than, the equivalent of, or narrower than, the protection afforded by the first amendment. That meaning must be determined under Pennsylvania law. It must also be determined whether, as a matter of interpretation, article 5(e) confers a contractual right or is solely a matter of administrative grace, or is a noncontractual administrative procedure designed to avoid the possibility of violation of the first amendment. Certainly for tenured faculty the Statement of Policy for Continuous Employment and Academic Freedom of Blooms-burg State College appears to confer contract rights with respect to the hearing procedures outlined in article 9. The cross-reference from article 5(e) to article 9, while ambiguous, could well support a finding that even nontenured faculty members have a contractual right to have the renewal decision made without the taint of considerations viola-tive of academic freedom, whatever that term means. If article 5(e) does grant a contract right, Skehan has been deprived of it since the October 17, 1970 termination took place before any article 5(e) hearing was held, and the December 1, 1970 hearing was not addressed to the article 5(e) issue. In the absence of district court findings on the scope of article 5(e) under Pennsylvania law we must, as did the Supreme Court in Perry v. Sindermann, supra, at 599-603, remand. If the district court finds that article 5(e) gave Skehan a contractual interest of some kind, an appropriate remedy for its breach must be fashioned.

III. THE LIBERTY-FIRST AMENDMENT CLAIM

It is clear that nonrenewal of a nontenured public school teacher’s one-year contract, or midyear termination of that contract, may not be predicated even in part on his exercise of first amendment rights. Perry v. Sindermann, supra at 596-598; Simard v. Board of Education, 473 F.2d 988 (2d Cir. 1973). It is also clear that contract rights aside, the allegation that nonrenewal or midyear termination was based on the teacher’s exercise of first amendment rights does not give him a right to a hearing by the institution. Rather, such an allegation of a substantive violation of federal constitutional rights is heard and determined by the court in the first instance. See Perry v. Sindermann, supra at 599 n. 5; Clark v. Holmes, 474 F.2d 928, 932 n. 4 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (1973). The district court found that Skehan had not proven by a preponderance of the evidence his allegation that

“. . . he was discharged because of his stands on campus issues which were contrary to the administration’s positions, in violation of his First and Fourteenth Amendment rights to free speech. . On the contrary, I find that Plaintiff was discharged because of his refusal to follow administrative directives relating to the schedule of classes in the Fall of 1970.” 358 F.Supp. at 434.

Skehan contends this finding is clearly erroneous. But while there is ample evidence which would have supported a contrary finding, there is evidence supporting the district court finding. We cannot say that it is clearly erroneous and we cannot substitute our evaluation of the evidence for that of the district court. Thus whatever rights Skehan has with respect to the October 17, 1970 discharge depend upon the termination of his contract without procedural due process.

The terminal year decision, however, presents a separate issue. The district court finding that the October 17, 1970 termination was caused by the scheduling incident rather than by Skehan’s prior stands on campus issues does not dispose of his claim that the terminal year decision, made several months before the scheduling dispute arose, was similarly motivated. On that issue the district court made no finding. If it were to find that the decision not to renew his contract was based on stands on campus issues with which the administration disagreed, the nonrenewal decision would be substantively defective under the first amendment and the court would have to fashion an appropriate remedy.

IV. THE DISTRICT COURT’S REMEDY

The district court rejected Skehan’s claim for reinstatement and back-pay, and awarded nominal damages for the property-procedural due process violation which it found. Since we have already determined that additional findings are required with respect to the article 5(e) contract claim and the first amendment claim on the terminal year decision, the district court obviously will have to reconsider the remedy problem with respect to those claims. Even with regard to the termination claim, however, the district court’s award of nominal damages was improper. The court reasoned that “had Plaintiff been afforded a hearing prior to his discharge, in all probability the outcome would have been the same.” 358 F.Supp. at 436. This conclusion was thought to follow from the court’s finding on the liberty-first amendment claim, that the termination resulted from the scheduling dispute. But while it was proper for the court to consider that claim in the first instance, it was not proper to substitute the finding it made for the in-house hearing which the institution should have afforded prior to terminating the 1970-71 contract. Such a retrospective substitution of the district court’s judgment for that of the administrative hearing officers seriously undermines the hearing requirement. A district court cannot exercise the discretion which is vested in an administrative hearing board, nor can it bring to the dispute the same expert knowledge of the academic environment which should enlighten the deliberations of an academic hearing agency. A board of his academic peers might regard Skehan’s scheduling imbroglio as far more trivial than would a district judge. A board of his academic peers might say he is guilty of misconduct, but he should not be fired for that kind of misconduct. The district judge could not exercise such discretion. Furthermore, if we countenance the practice of making findings which the institution should have made, a substantial incentive toward affording procedural due process prior to contract termination will be removed. The result will be to place considerable unreviewable discretion in the hands of the administrators by permitting discriminatory application of the availability of pretermination hearings. Those discriminated against will be forced to the expense, inconvenience and delay of a lawsuit to get what remains of the due process hearing which should have been provided by the state at the administrative level in the first instance. If the due process protection of contract rights mandated by Board of Regents v. Roth, supra, and Perry v. Sindermann, supra, is to be meaningful, the sanction for deprivation of that protection must be something more than was awarded in this case. See, e. g., Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); Silver v. New York Stock Exchange, 373 U.S. 341, 365-366 n. 18, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Vitarelli v. Seaton, 359 U.S. 535, 545-546, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957).

V. THE APPROPRIATE REMEDY

Skehan seeks what has sometimes been characterized as the equitable remedy of reinstatement with backpay. The reinstatement remedy has been awarded frequently for terminations unlawful for procedural defects, see, e. g., Vitarelli v. Seaton, supra; McNeill v. Butz, 480 F.2d 314 (4th Cir. 1973); Cooley v. Board of Education, 453 F.2d 282 (8th Cir. 1972); Olson v. Regents of University of Minnesota, 301 F.Supp. 1356 (D.Minn. 1969); Lucia v. Duggan, 303 F.Supp. 112 (D.Mass.1969), or substantive defects, see, e. g., Stolberg v. Members of the Board of Trustees, 474 F.2d 485 (2d Cir. 1973); Rauls v. Baker County, Georgia, Board of Education, 445 F.2d 825 (5th Cir. 1971). Application of that remedy is complicated in this case by the fact that the 1970-71 contract year had already expired by the time the suit started, by the absence of a finding with respect to the article 5(e) claim which might have extended Skehan’s contract rights past June of 1971, and by the absence of a finding on the claim that non-renewal was for reasons prohibited by the first amendment. But assuming no more than the due process violation which the district court found, backpay from October 17, 1970 to the end of the contract year would seem appropriate. Skehan also seeks attorneys fees. We must first determine, however, from which of the defendants these remedies, or any other retrospective remedies the district court may deem appropriate, may be obtained.

A. The College

Bloomsburg State College is named as a defendant. The Attorney General of the Commonwealth appeared for it and all other defendants, filing a common answer for all. The status of the College in the governmental structure of the Commonwealth is somewhat ambiguous. We noted a similar ambiguity in Braden v. University of Pittsburgh, 477 F.2d 1, 6-7 (3d Cir. 1973) with respect to the status of the University of Pittsburgh, which, like Blooms-burg State College, is a part of the Commonwealth system of higher education. But unlike the University of Pittsburgh, Bloomsburg State College apparently has no separate corporate existence. Compare Pa.Stat.Ann. tit. 24, §§ 20-2002(7), 20-2003, 20-2003.1, with University of Pittsburgh — Commonwealth Act, Pa. Stat.Ann. tit. 24, §§ 2510-201 to 2510-211. In Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), decided after our opinion in Braden, the Supreme Court of Pennsylvania abolished governmental immunity for local government units — in that case a school board. That holding would seem to apply to separately chartered educational institutions such as the University of Pittsburgh carrying out the governmental function of public higher education. And if under Pennsylvania law Bloomsburg State College is a subsidiary governmental unit, it too, is amenable to suit. Thus there would be no state sovereign immunity problem with respect to backpay award assuming, as we do, subject matter jurisdiction to make such an award. If under Pennsylvania law Bloomsburg State College is in effect merely an agency of the Commonwealth rather than a subsidiary governmental unit, the Ayala case does not apply, for in Brown v. Commonwealth of Pennsylvania, 453 Pa. 566, 305 A.2d 868 (1973) the Supreme Court of Pennsylvania made clear that the Commonwealth still claimed immunity. See also Pa.Stat.Ann. tit. 17, § 211.401. The district court did not decide into which category Pennsylvania would fit Blooms-burg State College. Assuming that it would fall within Brown rather than Ayala, Skehan urges that the Commonwealth has, by not pleading sovereign immunity in the district court, waived that defense. It is well established that the defense of sovereign immunity from suit in a federal court may be waived. E. g., Missouri v. Fiske, 290 U.S. 18, 24, 54 S.Ct. 18, 78 L.Ed. 145 (1933). A general appearance in litigation in a federal court may be such a waiver. Clark v. Barnard, 108 U.S. 436, 447-448, 2 S.Ct. 878, 27 L.Ed. 780 (1883). But while the Attorney General did not plead sovereign immunity on behalf of the College in the district court he vigorously asserted it here. In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) the Supreme Court held “that the eleventh amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” That holding would seem to have overruled the Ninth Circuit decision in Lidie v. State of California, 478 F.2d 552 (9th Cir. 1973) upon which Skehan relies, and to have limited the applicability of cases such as Clark v. Barnard, supra. See Jordon v. Gilligan, 500 F.2d 701 (6th Cir., 1974), vacating as void un,der rule 60(b) a judgment awarding attorneys fees against the state. But see Jordan v. Fusari, 496 F.2d 646 (2d Cir., 1974). Edelman v. Jordan, supra, also reversed Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973) which had held that in connection with equitable relief against individual defendants a retroactive monetary award could be made from state funds. Thus if under Pennsylvania law the College is an agent of the Commonwealth, state sovereign immunity would preclude the award of any relief against it directly and any but prospective monetary relief, equitable or legal, in an order directed agáinst the individual defendants. Edelman, while not ruling on the matter specifically, appears to bar the award of attorneys fees from the state treasury as well. But if the College is a subsidiary governmental unit both as a matter of Pennsylvania law under the Ayala case and as a matter of the federal law of state sovereign immunity, nonprospective monetary relief is available. See Edelman v. Jordan, [94 S.Ct. 1347]. We do not deem it appropriate on this record to make a determination into which category Pennsylvania law places the College, especially since that record was not developed with the benefit of the Ayala and Brown eases in Pennsylvania and the Edelman case in the Supreme Court. On remand the district court should make an appropriate determination. If it concludes that the College is a subsidiary governmental unit, an appropriate decree can include retroactive pay and attorneys fees. The extent of any backpay award will depend upon the court’s findings on the article 5(e) and first amendment nonrenewal contentions.

B. The Individual Defendants

The individual defendants are not protected by sovereign immunity. Even if the College is immune, they may be ordered to reinstate Skehan at least until such time as he has been afforded such hearing as the court finds is required. As Edelman v. Jordan makes clear, that relief may include the payment of his salary prospectively out of College funds even though the College itself may be found to enjoy state sovereign immunity. As to backpay and attorneys fees, even if the College is immune there remains the question whether the individual defendants should be held liable. Such a recovery against individual defendants would be in the nature of damages, rather than as a part of the equitable remedy of reinstatement. Such a recovery of damages, as distinguished from reinstatement, must be predicated upon conduct deemed to be tortious under federal law, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), 42 U.S.C. § 1988, or state law, 42 U.S.C. § 1988. The Attorney General on behalf of the individual defendants pleaded official immunity. We have held that a resolution of that defense requires the development of the facts as to whether the defendants in question are in positions where they exercise such discretionary governmental functions as to entitle them to official immunity. Safeguard Mutual Insurance Co. v. Miller, 472 F.2d 732, 734 (3d Cir. 1973); Lasher v. Shafer, 460 F.2d 343, 348 (3d Cir. 1972); see Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967). The district court made no findings on whether the individual defendants exercise such discretionary governmental functions, but unlike Scheuer v. Rhodes, 42 U.S.L.W. 4543, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), Safeguard Mutual Insurance Co. v. Miller, supra and Lasher v. Shafer, supra, the position of each defendant is clear in the record, and the Pennsylvania statutes defining their duties establish that they exercise discretionary governmental functions. Pa.Stat.Ann. tit. 24, § 20-2008.2 (Board of Trustees); Pa.Stat.Ann. tit. 24, §§ 20-2003.1, 20-2003.2, 20-2004 (Secretary of Education) ; Pa.Stat.Ann. tit. 24, §§ 20-2004, 20-2004.1 (President). Of course, as indicated above, this official immunity from claims for damages and attorneys fees does not preclude injunctive relief. Ex parte Young, 209 U.S. 203, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Safeguard Mutual Insurance Co. v. Miller, 472 F.2d at 734-735. Thus, to the extent that the order appealed from denied recovery of backpay and attorneys fees from the individual defendants, we affirm, though for different reasons than relied on by the district court.

C. Attorneys Fees

Although it found that a due process violation had taken place and awarded nominal damages, the court refused to award Skehan attorneys fees. Such awards have repeatedly been held to be appropriate in suits seeking redress for improper dismissal. E. g., Stolberg v. Members of the Board of Trustees, 474 F.2d 485 (2d Cir. 1973); Donahue v. Stauton, 471 F.2d 475, 482-483 (7th Cir. 1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1973); Jinks v. Mays, 350 F.Supp. 1037 (N.D.Ga.1972). See Cooper v. Allen, 467 F.2d 836, 840 (5th Cir. 1972). Attorneys fees have also been awarded frequently in civil rights cases not involving dismissals from employment. E. g. Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Lee v. Southern Homes Sites Corp., 444 F.2d 143 (5th Cir. 1971); N.A.A.C.P. v. Allen, 340 F.Supp. 703 (M.D.Ala.1972); Dyer v. Love, 307 F.Supp. 974 (N.D.Miss.1969). See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). The district court refused to make such an award because “the constitutional deprivation was technical in nature; it was not the product of bad faith on the part of the Defendants.” Order of June 12, 1973 (unreported), at 2. Undoubtedly this conclusion was reinforced by the district court’s ruling, which we have reversed, that it could substitute its decision for the due process which the College should have afforded. Withholding an award of attorneys fees in a case where a constitutional violation has been established removes a substantial incentive toward efforts looking to vindicate Constitutional rights. It is true, as the district court points out, that Skehan was pursuing an individual, not a class remedy. But the public has an interest in having its' state-related institutions act in compliance with the fourteenth amendment. We therefore disapprove the reasons advanced by the district court for rejecting the attorneys fees request.

That does not end the inquiry, however. We have held that the individual defendants are covered by official immunity. If an attorneys fees award is to be made it must be made against the College. Whether such an award can be made against it will, as we pointed out above, depend upon its status.

VI. JURISDICTION

Skehan asserts jurisdiction under 28 U.S.C. § 1331 and under 28 U.S. C. § 1343(3), (4) and the Civil Rights Acts. The jurisdictional amount requisite to support jurisdiction under § 1331 is pleaded, and the claim for recovery in excess of $10,000 clearly is not frivolous. Jurisdiction over the individual defendants is clear both under § 1331 and under § 1343 and 42 U.S.C. § 1983. Because the requisite jurisdictional amount for § 1331 is pleaded, the fact that the College is not a “person” within the meaning of 42 U.S.C. § 1983 is not significant. Thus we have no occasion in this case to determine whether, in view of the Commonwealth’s abandonment of state sovereign immunity with respect to subgovernmental units in the Ayala case, those units may be sued in a federal court where, because the claim is less than $10,000, jurisdiction must be predicated on 28 U.S.C. § 1343(3), (4). But see 42 U.S.C. § 1988. There is § 1331 jurisdiction to award relief against the College if under Pennsylvania law it is not an agency of the Commonwealth covered by the Commonwealth’s immunity.

VII. CONCLUSION

The judgment of the district court will be vacated and the case will be remanded for findings of fact:

1. as to the governmental status of Bloomsburg State College;
2. as to the nature of the interest created under Pennsylvania law by article 5(e) of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College;
3. as to whether the decision not to renew Skehan’s contract after 1970-71 was based on stands on campus issues with which the administration disagreed.

Since we have held that the individual defendants are entitled to official immunity, if the court should find that the College is covered by the Commonwealth’s state sovereign immunity neither backpay nor attorneys fees could be awarded. If the court should find that the College is within the Ayala rather than the Brown case an award of back-pay should be considered. The extent of such an award will depend upon the court’s findings as to the article 5(e) claim and as to the reason for nonrenewal. If Skehan’s only contract right expired by its terms at the end of the 1970-71 academic year, and there was no first amendment violation, the back-pay award should cover the 1970-71 period only. The claim for reinstatement would then be moot. But if either the article 5(e) claim or the first amendment claim should be decided in Ske-han’s favor, the court should consider the award of backpay to date if the- College is not immune, and also prospective reinstatement, as to which there is no immunity problem, at least until appropriate college procedures have taken place. If the College is not immune the court should also reconsider its ruling on the award of attorneys fees.

      . It is common ground that there was a dispute between Skehan and other members of the economics department and the College administration over whether the department or the administration controlled class scheduling. Skehan contends this dispute provided a subterfuge for his termination because of Nossen’s hostility over his previous exercise of first amendment rights. The defendants contend Skehan’s intransigence in the scheduling dispute caused intolerable disruption.

      . See page 39 infra.

      . Skehan points to his activist position on the Vietnam war, the administration’s displeasure with his extracurricular activities, the trivial nature of the scheduling dispute, and Nossen’s intemperate utterances toward him.

      . The district court points out, for example, that there is no evidence suggesting that his views on Vietnam differed from those of the administration, or that the administration was even aware of the extracurricular activities. 358 Supp. at 432 n. 1. Certainly there was a scheduling dispute.

      . See page 44 infra.

      . The Court approved the Second Circuit’s decision in Rothstein v. Wyman, 467 F.2d 226 (2d Cir. 1972), cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973), [94 S.Ct. 1347], which had been followed in recent decisions of the Fourth and Eighth Circuits, Dawkins v. Craig, 483 F.2d 1191 (4th Cir. 1973) and Like v. Carter, 486 F.2d 552, 554 (8th Cir. 1973), petition for cert. filed sub nom. Burns v. Doe (U.S. Sept., 11, 1973) (No. 73-406). The Court overruled its decisions in Sterrett v. Mothers’ and Children’s Rights Organization, 409 U.S. 809, 193 S.Ct. 68, 34 L.Ed.2d 70 (1972), aff’g 2 CCH Pov.L.Rptr. ¶ 15,384 (N.D.Ind.1972) (3-judge court) ; State Dep’t of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803 (1972), aff’g 347 F.Supp. 1004 (S.D.Fla.1971) (3-judge court) ; Wyman v. Bowens, 397 U.S. 49, 40 S.Ct. 813, 25 L.Ed.2d 38 (1970), aff’g 304 F.Supp. 717 (S.D.N.Y.1968) (3-judge court) (see order at [1968-71 transfer binder] CCH Pov.L.Rptr. If 10,506) ; and Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), aff’g 270 F.Supp. 331, 338 n. 5 (D.Conn.1967) (3-judge court), to the extent payment of retroactive benefits was ordered in these cases. See also note 7 infra.

      . The contention could be made that, by failing to expressly overrule its summary af-firmance in Sims v. Amos, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), aff’g 336 F.Supp. 924 (M.D.Ala.1972) (3-judge court) of an award of attorneys fees against state officers which was to be satisfied from the state treasury, the Court meant to leave the issue open. See Gates v. Collier, 489 F.2d 298 (5th Cir. 1973), following Sims and quoting the jurisdictional statement raising the eleventh amendment issue before the Court. Such a conclusion would, however, be inconsistent with the Edelman Court’s rationale. We attribute the Court’s omission to inadvertence. For a listing of other decisions overruled, see note 6 supra. See also Jordon v. Gilligan, supra, finding, after Edel-man, an eleventh amendment bar to the award of attorneys fees. But cf. Jordan v. Fusari, supra.

      Skehan, pointing to language in Justice Marshall’s dissent in Edelman v. Jordan, supra, contends that the liability of the Commonwealth for retroactive benefits in his case is still open. Justice Marshall wrote:
      “It should be noted that there has been no determination in this case that state action is unconstitutional under the Fourteenth Amendment. Thus, the Court necessarily does not decide whether the States’ Eleventh Amendment sovereign immunity may have been limited by the later enactment of the Fourteenth Amendment to the extent that such a limitation is necessary to effectuate the purposes of that Amendment, an argument advanced by an amicus in this case. In view of my conclusion that any sovereign immunity which may exist has been waived, I also need not reach this issue.” 42 U.S.L.W. at 4432 n. 2 [94 S.Ct. at 1371].
      An appreciation of this cryptic comment requires some refined analysis of the issues dealt with in Justice Rehnquist’s majority opinion. Claims for money against a state can arise in three separate legal frameworks. First, the claim may be based upon state law, purely and simply; breach of contract, for example. Second, it may be based upon federal law made binding upon the states by virtue of the supremacy clause; nonpayment of benefits mandated by the Social Security Act, for example. Third, it may be based upon the fourteenth amendment, which binds the states directly and under § 5 of which Congress has the power to create remedies. Edelman involves retroactive welfare benefits withheld in violation of the Social Security Act, and thus falls in the second legal framework. A fourteenth amendment claim provided a basis for federal jurisdiction, but was not decided. See Hagans v. Lavine, 42 U.S.L.W. 4381, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). Thus Justice Marshall is technically correct that Edelman does not dispose of the third category. But the majority opinion expressly overrules Shapiro v. Thompson, supra, State Department of Health and Rehabilitative Services v. Zarate, supra, and Wyman v. Bowens, supra, all fourteenth amendment cases. We think Edelman must be read as closing the door on any money award from a state treasury in any category.

      . The district court did find, as required by Scheuer, that the constitutional deprivation was technical in nature and “not the product of' bad faith on the part of Defendants.” Order of June 12, 1973 (unreported), at 2.


author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Joseph MAURO, Defendant-Appellant.
    No. 1051, Docket 74-1270.
    United States Court of Appeals, Second Circuit.
    Argued May 3, 1974.
    Decided June 26, 1974.
    Certiorari Denied Oct. 29, 1974.
    See 95 S.Ct. 235.

      John D. Gordan III, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., S. Andrew Schaffer, Asst. U. S. Atty., of counsel; Michael C. Eberhardt, Sp. Attorney, U. S. Dept, of Justice, on the brief), for appellee.
    Arnold E. Wallach, New York City, Aaron Schaeher, Brooklyn,- N. Y., for defendant-appellant.
    Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

Joseph Mauro appeals from a judgment of conviction which was entered on January 30, 1974, in the United States District Court, Southern District of New York, after a jury trial conducted before Hon. Robert J. Ward, United States District Judge. Mauro was convicted of conspiracy to dispose of cashiers’ checks stolen from the First National City Bank in violation of Title 18, United States Code, Section 371, and of possession of the stolen cashiers’ checks in violation of Title 18, United States Code, Section 2113(c).

Mauro’s associates in the criminal venture at issue were Pasquale Coceo and Bruce Romanoff, both of whom have pleaded guilty to the conspiracy count and have been respectively sentenced to prison terms of eighteen months and six months. Mauro was sentenced by Judge Ward to concurrent terms of two-and-one-half years imprisonment on each count. He is at liberty pending this appeal.

Villano, an undercover agent of the FBI, met with Coceo on February 9, 1973, at a “social club” in Brooklyn, purporting to be interested in having Coceo dispose of some stock certificates which Villano gave him. Coceo told Villano that he was in possession of checks stolen from the First National City Bank as well as other stolen securities.

At a second meeting on February 13th, Villano was accompanied by Olds-berg, who was cooperating with the FBI and who was introduced by Villano as his banker. Coceo brought Villano to his apartment where he returned the stock certificates given to him by Vil-lano stating that they were worthless. Villano then asked Coceo if he could handle counterfeit money and also stated that his banker was willing to handle the stolen cashiers’ checks. Coceo was unwilling to do business without his partner and drove with Villano and Oldsberg to Mauro’s home in Brooklyn about a mile away. Coceo left the car and returned with Mauro. After some discussion in the automobile about disposing of the counterfeit bills, Coceo stated that he and his partner Mauro had four cashiers’ checks stolen from the First National City Bank, each in a face amount of over $2 million, totalling $10 million. Both Coceo and Mauro stated that the forgeries were perfect. Mauro inquired as to how much would be obtained for the checks and stated that their terms were that Coceo and he were to split 2 Yz percent of the face value of the checks and that their boss was to get 23 percent. Mauro further inquired as to when they could expect to be paid their share. It was agreed that Villano and his principal would meet the “boss” at a Manhattan restaurant on February 16th and see the stolen checks. At that meeting, Coceo appeared without his boss or Mauro but with a xerox copy of one of the checks. Coceo said that the matter had to be handled discreetly and that he would have to discuss the situation again with Mauro.

Finally, another meeting was fixed for February 27th at the same Manhattan restaurant, where Coceo appeared with his boss, Romanoff. Although Mauro was not then present, the percentage arrangement among Coceo, Mauro and Romanoff was again discussed. Coceo went to Romanoff’s ear, removing a briefcase which he brought into the restaurant. Romanoff took from the brief case three stolen cashiers' checks, each made out in an amount exceeding $2.6 million with forged signatures. While Romanoff was offering the checks for examination, surveilling FBI agents came into the restaurant on signal, arresting Romanoff and seizing the checks.

Although Mauro did not appear at the meeting at which the arrest and seizure of the checks took place, the testimony of his prior meeting with Villano and Oldsberg clearly established his partnership with Coceo, his knowledge of the existence of the stolen checks, and his financial stake in the proceeds of the venture. The argument on appeal that the evidence was insufficient to establish that Mauro was a participant in the conspiracy is not persuasive and need not delay us.

The only significant question of law raised on this appeal, but never raised below, is Mauro’s argument that he could not be convicted of conspiracy since he did not know that the deposits of the First National City Bank were insured by the Federal Deposit Insurance Corporation. The Government concedes that no evidence of such knowledge was offered, although it did establish that the bank’s deposits were in fact insured by the F.D.I.C. at the time of the theft.

Mauro was indicted for a conspiracy to violate Title 18, United States Code, Section 2113(c), which provides:

Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank, credit union, or a savings and loan association, in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker.

Subdivision (b) referred to in § 2113(c) provides:

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or
Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

The term “bank” used in subdivisions (b) and (c) is defined in subdivision (f) as follows:

As used in this section the term “bank” means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.

The banking institutions covered by subdivision (f) fall into three categories: (1) member banks of the Federal Reserve System; (2) banks organized or operating' under the laws of the United States; and (3) banks whose deposits are insured by the F.D.I.C. See King v. United States, 426 F.2d 278, 279 (9th Cir. 1970). It also appears that some overlap exists. Thus, state and national banks may be members of the Federal Reserve System. See 12 U.S.C. §§ 221, 222, 321 & 501a. Moreover, both state and national banks may be insured. by the F.D.I.C. whether or not they are members of the Federal Reserve System. See 12 U.S.C. §§ 1814-1815.

The second paragraph of the first count in the indictment here states :

It was part of said conspiracy that the defendants would receive, possess, barter, sell and dispose of property, money and things of value exceeding $100, to wit, three cashiers’ checks made out in the total amount of $8,410,000, knowing the said checks to have been unlawfully taken and carried away from the First National City Bank, Broadway and 56th Street, Manhattan, New York, the deposits of which are insured by the Federal Deposit Insurance Corporation.

The description of the bank as the First National City Bank is, in our view, sufficient to identify it as one organized or operating under the laws of the United States and thus within the purview of § 2113(b), (c) & (f). In Byers v. United States, 175 F.2d 654 (10th Cir. 1949), a comparable ease (although one of substantive crime and not of conspiracy) involving 12 U.S.C. §§ 588a & 588b (1940), predecessors of § 2113, a motion to vacate a judgment of conviction was made on the ground that the indictment was legally insufficient, vague and indefinite because the banks involved were simply described as the “First National Bank, LeRoy, Kansas” and the “First National Bank, Howard, Kansas.” In denying the motion the court stated:

[T]hese indictments are sufficient no matter by what standard they are gauged. An indictment is sufficient under this statute if it shows, among other things, that the bank is one organized and operating under the laws of the United States .... The instant indictments are sufficient under the above test. The name of each bank set out in the indictment contains the word “National” in the title. Only banks organized under the laws of the United States may use the word “National” in their title. [See 18 U.S.C. § 709.] And courts will take judicial notice of the fact that a bank with the word “National” in its title is one organized pursuant to the laws of the United States.

175 F.2d at 656.

It is further clear that it was not at all necessary to allege in the indictment that the deposits of First National City Bank were insured by the F. D.I.C. Since it was a national bank, it was already within the coverage of § 2113(c) & (f). Schoepflin v. United States, 391 F.2d 390, 396 (9th Cir.), cert. denied, 393 U.S. 865, 89 S.Ct. 146, 21 L.Ed.2d 133 (1968); United States v. Harper, 241 F.2d 103, 105 (7th Cir. 1957); United States v. Jones, 327 F.Supp. 1208, 1209 (W.D.Pa.1971). While the Government may certainly rely on more than one basis for jurisdiction in a prosecution under § 2113, see King v. United States, supra, 426 F.2d at 279; cf. United States v. Cioffi, 487 F.2d 492, 499 (2d Cir. 1973), the additional allegation as to the F.D.I.C. was unnecessary, and since no prejudice arises from its inclusion, it may be properly disregarded. See United States v. England, 480 F.2d 1266, 1269 (5th Cir.), cert. denied, 414 U.S. 1041, 94 S.Ct. 543, 38 L.Ed.2d 332 (1973); United States v. Archer, 455 F.2d 193, 194 (10th Cir.), cert. denied, 409 U.S. 856, 93 S.Ct. 135, 34 L.Ed.2d 100 (1972); Milentz v. United States, 446 F.2d 111, 114 (8th Cir. 1971); United States v. Goodwin, 440 F.2d 1152, 1157 (3d Cir. 1971); Gawne v. United States, 409 F.2d 1399, 1402-1403 (9th Cir. 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970).

The fact remains that the Government, which introduced evidence of F.D.I.C. insurance, did not attempt to prove that the First National City Bank was a national bank. However, as suggested in Byers v. United States, supra, we can take judicial notice of the fact that the bank was a national bank. In King v. United States, supra, there was, like here, nothing to show that the trial court had taken judicial notice of the fact that a branch of the Bank of America was within any of the three criteria of § 2113(f), and that court, on an appeal from a conviction of bank robbery, did remand- for an evidentiary hearing limited to the issue of the bank’s national character, noting: “We do not decide, however, whether circumstances could be stated under which it would be appropriate for a court of appeals to take judicial notice of the national character of a bank.” 426 F.2d at 279. We think these circumstances exist here since, like Byers and unlike King, the bank was identified in the indictment as the “First National City Bank.” See Gold v. United States, 378 F.2d 588, 592-593 (9th Cir. 1967); United States v. Ricciardi, 357 F.2d 91, 96-98 (2d Cir.), cert. denied, 385 U.S. 814, 87 S.Ct. 35, 17 L.Ed.2d 55 (1966); Jordan v. United States, 345 F.2d 302, 304 (10th Cir. 1965); United States v. Pecora, 267 F.2d 512, 515-516 (3d Cir. 1959). For over a hundred years it has been considered false advertising and unlawful to use the word “national” in the name of any banking institution not organized or operating under the laws of the United States. See Act of March 3, 1873, ch. 269, § 3, 17 Stat. 603, as amended 18 U. S.C. § 709. Moreover, since September 8, 1959, persons joining to establish a national bank must include the word “national” in its name. Pub.L. 86-230, § 25, 73 Stat. 466, codified at 12 U.S.C. § 22.

There remains, however, the question of the intent necessary to sustain a conviction for a conspiracy to violate § 2113(c). Here, the trial judge instructed the jury that in order to convict they had to find beyond a reasonable doubt that Mauro knowingly entered into an agreement “to possess, sell and dispose of cashier checks of a value of eight million four hundred ten thousand dollars, knowing the said checks to have been unlawfully taken from the First National City Bank.”

The finding of guilt here pursuant to the trial judge’s charge, to which no exception was taken, is amply established in the record. Mauro not only knew that these were cashiers’ checks of the First National City Bank, but he also knew they were stolen; he knew that the payee’s name had been forged, and he boasted of the quality of the forgery; he knew the face amount of the checks because he insisted that the 2i/2 percent cut he and his partner Coceo would share would be based on that amount. Even assuming that as a conspirator he had to have knowledge of the “national” character of the bank, we hold that this element of the crime was established by his knowledge that the bank was the “First National City Bank.” If the national character of the bank had to be established by a defendant’s literal knowledge that the bank was “organized and operating under the laws of the United States,” precious few bank robbers or receiver conspirators would ever be convicted. No case has ever so held, and, in fact, the only eases in which the question has arisen, although in jurisdictions not sharing our line of authority under United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941), see infra, have been to the contrary.

In sum, even assuming that the national character of the bank is an element of intent rather than simply a jurisdictional fact, we are satisfied that it was established here.

The Government has not made this argument on appeal. Since it is clear that no effort was made below to establish that the appellant knew that the bank was insured by the F.D.I.C., the Government urges that no such specific intent is required to prove a conspiracy to violate § 2113(c), but further seems committed to the proposition that this requires us to overrule United States v. Crimmins, supra, and its rapidly increasing tribe The decision which we have reached makes the exercise unnecessary. In our view, the strict view of Crimmins was complied with, whether necessary or not.

The position that Crimmins' invariably mandates that the Government establish the “federal” element as part of the mens rea of the conspirator, no matter what the statute he is accused of conspiring to violate, is not persuasive. Certainly there is no rule that the criminal intent required to satisfy a conviction of conspiracy to violate a statute must be greater than that necessary to commit the substantive crime. It cannot be less, but it need not be more. Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1958); United States v. Schwartz, 464 F.2d 499, 510 (2d Cir. 1972), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1973).

While the knowledge of a conspirator of the use of interstate commerce, a material and physical reality, may be readily susceptible of proof, the legal status of a banking institution (e. g. membership in the Federal Reserve, chartering by the state or the United States, insurance of deposits by the F. D.I.C.) involves more recondite areas not normally within the ken of those who undertake the activity sought to be discouraged. We would seriously doubt that Congress ever intended that knowledge of these legal and financial relationships must be proved as part of the defendant’s intent before he can be found guilty of conspiracy to violate the statute. This “federal” status seems to have been inserted in the statute only to create federal jurisdiction and not as an element of the mens rea of the conspirator. We do not pursue the matter further not only because of the position we have taken on the facts of this case, but also because on petition by the Government, the Supreme Court granted certiorari to this circuit in United States v. Feola, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285, 42 U.S.L.W. 3584 (1974) to consider our decision in United States v. Alsondo, 486 F.2d 1339 (2 Cir. 1973). This very issue is raised in that case, and we can therefore assume that the integrity of Crimmins and the legitimacy of its offspring will be determined by a higher tribunal.

Affirmed.

      . In Nelson v. United States, 415 F.2d 483 (5 Cir. 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970), the Fifth Circuit held that in a prosecution for conspiracy to possess property stolen from an F.D.I.C. insured bank, it is not necessary for the Government to prove that the defendant had knowledge of the bank’s federal connection. The court stated that “[Kjnowledge of receiving money stolen from a banking institution is sufficient to meet the substantive requirements of § 2113(c). Proving that the bank was insured by the F.D.I.C. is simply an additional element of jurisdictional proof which must be shown by the Government at the trial.” 415 F.2d at 486. See also United States v. Gallishaw, 428 F.2d 760 (2d Cir. 1970) ; Lubin v. United States, 313 F.2d 419 (9th Cir. 1963).
      With respect to the substantive crime defined by § 2113(c), while the courts have required proof that the defendant had knowledge that the property was stolen from a bank, credit union or savings and loan association, there is no suggestion in the cases that he must also be aware of the institution’s federal character. See United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972) ; United States v. Whitney, 425 F.2d 169 (8th Cir.), cert. denied, 399 U.S. 935, 90 S.Ct. 2267, 26 L.Ed.2d 808 (1970) ; United States v. Licausi, 413 F.2d 1118 (5th Cir. 1969), cert. denied, 396 U.S. 1006, 90 S.Ct. 560, 24 L.Ed.2d 498 (1970).

      . Recent cases in this circuit recognizing the Crimmins rule include United States v. Riz-zo, 491 F.2d 1235 (1974) (per curiam) ; United States v. Cangiano, 491 F.2d 906 (1974) ; United States v. Houle, 490 F.2d 167 (1973) ; United States v. De Marco, 488 F.2d 828 (1973) ; United States v. Alsondo, 486 F.2d 1339 (1973), cert. granted sub nom. United States v. Feola, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285, 42 U.S.L.W. 3584 (1974) ; United States v. Jacobs, 475 F.2d 270, cert. denied, 414 U.S. 821, 94 S.Ct. 131, 38 L.Ed.2d 53 (1973) ; United States v. Fields, 466 F.2d 119 (1972) ; United States v. Vilhotti, 452 F.2d 1186 (1971), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972).