source: Caselaw Access Project

author: TONE, Circuit Judge.

license: Public Domain

text:
    Elvira VARGAS, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. James TRAINOR, Acting Director, Illinois Department of Public Aid, Defendant-Appellee.
    Nos. 74-1823, 74-1968.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 11, 1974.
    Decided Dec. 27, 1974.
    Motion Granted March 24, 1975.
    See 95 S.Ct. 1421.
    Certiorari Denied March 31, 1975.
    See 95 S.Ct. 1454.

      Kenneth K. Howell, Robert Lehrer, Sheldon Roodman, Jane Stevens, James Weill, Legal Assistance Foundation, Chicago, 111., for plaintiff-appellant.
    George L. Grumley, William Scott, Atty. Gen., Bonny Setker Barezky, Chicago, 111., for defendant-appellee.
    Before FAIRCHILD, SPRECHER and TONE, Circuit Judges.
   TONE, Circuit Judge.

The procedure by which the Illinois Department of Public Aid reduced or terminated certain public assistance to aged, blind, and disabled recipients is challenged under the Due Process Clause of the Fourteenth Amendment. We hold that the procedure did not conform to constitutional standards and reverse the District Court’s contrary judgment.

Until the end of the year 1973, needy, blind, and disabled persons in Illinois received cash assistance from the Illinois Department of Public Aid. The Federal Government provided 50 percent of the funds for these payments through the program of Aid to the Aged, Blind and Disabled (AABD) established pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385 (1969 ed.). To arrive at the total amount of a recipient’s grant, the Department determined how much he needed for each of a number of individual items of allowance, e. g., for food, clothing, rent, and furniture. The amounts of grants varied among recipients, depending on their needs as determined by the Department.

Effective January 1974, amendments to Title XVI of the Social Security Act established a new program, called Supplemental Security Income (SSI), which partly replaced the AABD program. Public Law 93-66, 93d Cong., 1st Sess. (1973), 42 U.S.C. § 1381 et seq. (Supp. 1973). The new law provided for a uniform federal minimum assistance grant, currently $146 per month for each recipient, which is entirely federally funded and is administered by the Social Security Administration of the Department of Health, Education and Welfare.

To assure that payments to former AABD recipients would not be reduced, the new law required the state, as a condition of participation in the federal-state Medicaid Program (Title XIX of the Social Security Act), to supplement the monthly SSI payments to persons who were receiving assistance as of December 1973 in order to keep payments to those persons at their then level so long as their needs for assistance did not change. This “mandatory state supplement” is funded by the state. Id. § 212. Under the new, combined program, an AABD recipient who was receiving, for example, $200 per month would continue to receive that amount so long as his need for assistance did not change. He would receive $146 in SSI benefits and $54 as the mandatory state supplement. If, however, his December 1973 payment included an amount for “a special need or any special circumstance,” and “a change with respect to such special need or circumstance” thereafter occurred, the mandatory state supplement could be reduced to reflect the reduction in need. Id. § 212(a)(3)(D).

The state may administer and pay the mandatory supplement itself or elect to have the Social Security Administration do so. Id. § 212(b)(1). At first the Illinois Department made this election, and from January until September 1974, the Social Security Administration’s payment to each Illinois recipient included both the $146 SSI grant and the mandatory supplement. In September 1974 the Illinois Department took over the administration and payment of the supplement, beginning with the October 1974 payment. This meant that each recipient would receive the $146 SSI grant from the Social Security Administration and the mandatory supplement from the Illinois Department of Public Aid.

To some 3,780 aged, blind and disabled recipients, approximately 10 percent of the total, the Department sent a written notice in late September advising each of them as follows:

“The amount of assistance you receive for October, 1974, will be reduced to the amount shown on the enclosed card.”

The reduction was said to be “because of changes in your needs or living arrangements which occurred between January 1, 1974, and the current month, but which were not entered on your record so as to effect your check.” No other explanation or statement of reasons was given. The “enclosed card” referred to in the notice was a computer printout which simply stated, “The amount of your grant for October, 1974 will be” a stated amount and contained a code designation and the name and address of recipient.

The notice also stated that the reduction would not be made “if you can show that it is wrong.” The recipient was advised, “You may meet with a representative from your local office to question this action,” at an informal meeting where “you may present information or evidence,” and “be represented by a person^) of your choice”; that if he wanted such a meeting he should contact his case manager; and that whether or not he had such a meeting he had a right of appeal.

In addition, the notice advised the recipient that he had a right to appeal in writing within 60 days of the date of the notice and thereby obtain a fair hearing. The Department’s local office would provide him with an appeal form and stood ready to help fill it out. If an appeal was filed within 10 days of the date of the notice, the assistance payments would not be reduced until a decision on the appeal after the hearing.

Plaintiff Elvira Vargas was one of the AABD recipients to whom the notice of reduction of assistance was sent. Upon receiving it, she filed this action on behalf of herself and other members of the class composed of all aged, blind, and disabled recipients of mandatory supplements whose benefits would be reduced in October 1974 pursuant to the form notice described above. Naming the Director of the Illinois Department of Public Aid as the defendant, her complaint alleges in substance the foregoing facts, attacks the notice as inadequate and untimely, and asserts the right of each member of the class to a fair hearing prior to the time the reduction or termination of his benefits goes into effect. Plaintiff moved for interlocutory injunc-tive relief.

The District Court held a hearing on the motion on October 4, two days after the complaint was filed. The court certified the action as a class action, denied interlocutory relief, and denied an injunction pending appeal. Upon agreement by the parties that further proceedings would be unnecessary, the court found the notice and opportunity to be heard adequate and entered a final judgment for defendant.

On October 22 this court, on motion of plaintiff, entered an order enjoining defendant, pending appeal, from reducing or terminating grants based on the notice described above. In the order the court also established an expedited briefing schedule and set an early date for oral argument.

In late November, about three weeks before the date set for argument in this court, the Department of Public Aid sent out to the members of the plaintiff class a new “Notice of Reduction (AABD).” This notice advised the recipient that the amount of the grant he would receive in December would be less than the amount received from the Department in November. In other respects the notice was the same as the September notice. The “enclosed card,” however, unlike the card accompanying the September notice, which showed only the total amount of the monthly state grant, contained a breakdown showing the amount allowed for each item, such as clothing, household supplies, rent, etc. The SSI grant of $146 was then shown as deducted from the total, and the balance was shown as the state income maintenance payment. Again neither the notice nor the enclosed card stated why the grant was being reduced.

One member of the class, Robert Collier, appealed after receiving the first notice, and, after a hearing, the Department restored his grant to the September level. One week after receiving notice of that action, however, he received his copy of the November notice and its enclosed card, which informed him that his grant had again been reduced to the October level specified in the previous notice. Defendant ■ stated in oral argument that apparently a mistake was made with respect to Collier.

After receiving the November notice, plaintiff filed a new complaint in the District Court attacking that notice. The case was assigned to the same judge who had decided the first case. He denied injunctive relief and entered judgment for defendant. Again this court granted an injunction pending appeal. The two cases were consolidated and argued together.

Due Process

The Supreme Court held in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) that a state could not, consistently with the requirements of procedural due process, terminate welfare benefits without first providing the recipient with a hearing. The New York procedure challenged in that case included a pre-termination notice stating the reasons for termination, and the adequacy of the notice was therefore not in issue. Nevertheless, the Court addressed itself to that subject, among others, in the following passage:

“ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394, [34 S.Ct. 779, 782, 58 L.Ed. 1363] (1914). The hearing must be ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manxo, 380 U.S. 545, 552, [85 S.Ct. 1187, 1191, 14 L.Ed.2d 62] (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” 397 U.S. at 267-268, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287.

Although the statement that the notice must be an “adequate notice detailing the reasons” may be considered dictum, we are hardly at liberty to ignore it. There is, moreover, other authority to the same effect. This court, in Brooks v. Center Township, 485 F.2d 383, 385 (7th Cir. 1973), held the Indiana “poor relief” statute invalid, stating:

“We hold that the statute is constitutionally infirm facially for want of due process in failing to provide, inter alia, a pre-termination hearing, an effective opportunity for Brooks to defend, and want of due notice of reasons for termination. Goldberg v. Kelly, 397 U.S. 254, 264-268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).”

Similarly, the Second Circuit found a denial of due process in a state agency’s procedures for terminating the leases of public-housing tenants for “non-desirable conduct” in Escalera v. New York City Housing Authority, 425 F.2d 853, 862-863 (2d Cir. 1970), because, inter alia, the notices did not advise the tenants of the reasons for the termination. Three-judge courts have held that failure of state authorities to inform a public assistance recipient of the reason for reducing or terminating his benefits before taking that action is a denial of due process. Pregent v. New Hampshire Department of Employment Security, 361 F.Supp. 782, 795-797 (D.N.H.1973), vacated and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2595, 41 L.Ed.2d 207 (1974); Sims v. Juras, 313 F.Supp. 1212, 1215 (D.Ore.1969); see Caldwell v. Laupheimer, 311 F.Supp. 853, 856 (E.D.Pa.1969). It has also been held that a tenant in publicly-subsidized housing who has a statutory right not to be terminated except for good cause has a right to pre-termination notice stating the reasons for the proposed action. McQueen v. Druker, 317 F.Supp. 1122, 1128-1131 (D.Mass.1970) (Wyzanski, J.), aff’d, 438 F.2d 781 (1st Cir. 1970). A student faced with expulsion is also entitled to a notice containing a statement of reasons. Dixon v. Alabama State Board of Education, 294 F.2d 150, 151-152, 158 (5th Cir. 1961). All these cases recognize that the notice of proposed action cannot be adequate if it does not include the reasons or grounds for the action.

Defendant argues that due process was satisfied in the case at bar because the notice advised the recipient that he could learn the reason for the proposed reduction or termination of benefits by inquiring of his caseworker. Such a notice does not, however, meet the requirement laid down in the foregoing authorities that before public assistance benefits can be reduced or terminated the recipient be given a notice stating the reasons for the proposed actions. See especially Escalera v. New York City Housing Authority, supra, 425 F.2d at 862.

Even if the cases were not read to impose so categorical a requirement, the notice in this case would fail to meet the requirements of due process. The notice is addressed to persons who are aged, blind, or disabled, many of whom, defendant could have anticipated, would be unable or disinclined, because of physical handicaps and, in the case of the aged, mental handicaps as well, to take the necessary affirmative action. Within what was left of the ten days after they received the notice, they were required either to manage to meet with their caseworkers and learn the reasons for the proposed action and then decide whether to appeal, or to appeal without knowing whether an appeal might have merit. If they failed to do either, their benefits were reduced or terminated without their being advised why. Under such a procedure only the aggressive receive their due process right to be advised of the reasons for the proposed action. The meek and submissive remain in the dark and suffer their benefits to be reduced or terminated without knowing why the Department is taking that action.

Defendant impliedly recognizes the likelihood that few members of the class would seek out their caseworkers when he argues that including the reasons for the proposed action in the notice would have been unreasonably burdensome to the personnel of the Department. If most of the 3,780 members of the class had sought out their caseworkers to obtain the information needed to make an intelligent decision as to whether they should elect to appeal, the burden and disruptive effect on the Department would have been intolerable. By comparison, furnishing the information in writing in an orderly way would have been a mild inconvenience. Obviously, defendant chose the summary form of notice because he expected most members of the class not to seek explanations and therefore not to be informed of the reasons for the proposed action before that action was taken.

The Collier case demonstrates “the possibility for honest error or irritable misjudgment” (Goldberg v. Kelly, supra, 397 U.S. at 266, 90 S.Ct. at 1019, quoting from the opinion of the three-judge court in that case) that underscores the need for procedural due process in the reduction or termination of welfare benefits. There the Department not only made the initial errors that were corrected after hearing an appeal, but then promptly made the same errors all over again and thus undid what had been accomplished by Collier’s appeal. Government agencies do make mistakes. Yet there is a human tendency, even among those who are more experienced and knowledgeable in the ways of bureaucracies than the aged, blind, and disabled persons before us in this case, to assume that an action taken by a government agency in a pecuniary transaction is correct. Unless the welfare recipients are told why their benefits are being reduced or terminated, many of the mistakes that will inevitably be made will stand uncorrected, and many recipients will be unjustly deprived of the means to obtain the necessities of life.

The reduction or termination of benefits to the members of the plaintiff class pursuant to the September notice was unlawful, because the notice did not state the reasons for the proposed action. The November notice was equally deficient, for it merely showed the amounts of the components of the recipient’s grant, as reduced by the proposed action, and did not state the reasons for that action. The members of the plaintiff class are therefore entitled to receive their state mandatory supplements unreduced by the adjustments reflected in the two notices, until all the requirements of due process are met.

We are not unmindful of the state’s interest in making welfare payments only to those who are eligible to receive them and only in the proper amounts. The state has every right to terminate or reduce benefits when warranted by a change in a recipient’s situation or discovery of an error of fact. We hold only that in making these adjustments the state must observe the requirements of due process.

Retroactivity

By the time this court entered its October 22 order granting an injunction pending appeal, defendant had already made the reduced October supplementary payments to the members of the plaintiff class. Interpreting our order as “apparently” requiring him to restore to class members the amounts of the October reductions, defendant sought a stay from Justice William H. Rehnquist as Circuit Justice, arguing that the Eleventh Amendment, as interpreted in Edel-man v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), made our order invalid insofar as it required such restoration. Justice Rehnquist entered a temporary partial stay and requested a response, after receipt of which he vacated his prior order and denied the stay, stating as his reasons for doing so our acceleration of the appeal and the following:

“I do not believe that the interpretation of the Court of Appeals’ injunction urged by petitioner-applicant [defendant] — that he is required by it to make retroactive payments to respondent and her class — is necessarily the interpretation which the Court of Appeals would place on its injunctive order.”

Defendant then moved here for a clarification of the injunction order. That motion was taken with the case.

Edelman v. Jordan involved claims for AABD payments for the period between the effective date of the federal regulations that were ultimately held to have been violated by the failure to make the payments and the date of the preliminary injunction. This court held that the Eleventh Amendment did not bar an order requiring the payments to be made. Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973). The Supreme Court reversed, holding that the Eleventh Amendment barred relief. Edelman v. Jordan, supra, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662.

Edelman holds that the Eleventh Amendment permits only prospective relief and bars a judgment for past liability that must be satisfied from the general revenues of the state. Plaintiff argues that the event dividing the past from the prospective is the beginning of the pay period during which the injunctive order was entered or, alternatively, the date of filing suit. We read Edelman to require rejection of both alternatives. There the District Court, in a judgment affirmed by this court, had ordered payments of amounts wrongfully withheld before the entry of the preliminary injunction. The Supreme Court reversed and in so doing necessarily held that payments that should have been made prior to the time of the preliminary injunction but after the complaint was filed were subject to the Eleventh Amendment. Also, in its analysis of the impact of the Eleventh Amendment in the light of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) and other cases, the court speaks of the period for which recovery was held barred as “a time when petitioner [was] under no court-imposed obligation to conform to a different standard.” (415 U.S. at 668, 94 S.Ct. at 1358.) We conclude that the entry of a court order or judgment requiring that payments be made divides the past from the prospective for Eleventh Amendment purposes. Accordingly, an order requiring payment of the October deficiencies in issue here would be retroactive in its application.

The October deficiencies are in all material respects comparable to those which were held to be subject to the Eleventh Amendment in Edelman. They are accrued monetary liabilities that would have to be paid from the general revenues of the state. They should have been paid but were not at a time when the defendant was not under a court-imposed obligation to pay them. They are reparations, measured in terms of monetary loss, for breach of a past legal duty. 415 U.S. at 664-665, 668, 94 S.Ct. 1347. Claims for these deficiencies are therefore barred unless the Eleventh Amendment bar was waived.

Plaintiff argues that there was a waiver. A waiver of the state’s Eleventh Amendment right must be “stated ‘by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.’ ” (Edelman v. Jordan, supra, 415 U.S. at 673, 94 S.Ct. at 1361, quoting from Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909).)

The issue to be decided is whether a statement defendant made to this court, through the Attorney General of Illinois, in a memorandum opposing plaintiff’s motion for an injunction pending appeal constitutes an unequivocal waiver. In that memorandum defendant stated:

“Plaintiff-Appellant and members of the Class she represents will not be irreparably injured if this Court does not grant an injunction pending appeal. If she is successful on the merits, she will be awarded any benefits wrongfully withheld, presumably while a new notice is sent. . . . However, if an injunction pending appeal is granted and the trial Court’s decision is affirmed the State will have no real way of recovering the monies paid out.”

There can be no doubt that the words “successful on the merits” meant successful on the merits in this court, not in an administrative appeal challenging the propriety of the reduction. And “wrongfully withheld” clearly meant wrongfully withheld by reason of denial of due process as determined by this court, not wrongfully withheld because the reason for the reduction proved to be wrong. If the latter were intended, there would have been no occasion to refer to the sending of a “new notice.” Success for plaintiff on the merits would be a holding that the procedure employed in reducing the payments was deficient, which would mean that benefits in the amount of the reductions were wrongfully withheld because they were withheld without due process. These would be paid, “presumably while a new notice is sent.” Our interpretation is confirmed by defendant’s statement in making the same point in his motion for stay presented to Justice Rehnquist: “. . . if Respondents succeed in the Appellate Court, the Department will return any monies withheld and maintain their assistance at the higher level.”

Thus defendant, in an effort to persuade this court not to enter an injunction against him, represented that if the plaintiff class was ultimately successful in its claim of denial of procedural due process, he would make the deficiency payments that had been withheld, and therefore the plaintiff class would not be prejudiced by denial of the injunction. There was no claim at that time that the Eleventh Amendment would bar recovery of such payments, or any part of them. If we had not issued the injunction, defendant could hardly, upon our rendering judgment against him in December, have repudiated his representation and invoked the Eleventh Amendment to bar recovery of the October, November and December deficiencies.

This court’s issuance of the injunction despite the representation does not change, or release defendant from honoring, the representation. The court’s action was not based on a belief that the representation could not be relied upon but on the hardship that would be visited on the welfare recipients if their benefits were reduced or eliminated while the appeal was pending, even assuming they would be restored later. A representation made in a judicial proceeding for the purpose of inducing the court to act or refrain from acting satisfies the requirements stated in Edelman. We therefore hold that defendant has deliberately waived the protection of the Eleventh Amendment.

The judgment of the District Court is reversed and the cause is remanded with directions to enter a judgment in conformity with this opinion. Upon the entry of such a judgment our injunctive order of October 22, 1974 will be vacated.

Reversed and remanded with directions.

      . Unless the recipients know the components of their former grants, and apparently most do not, they do not even know what changes were made in the components.

      . The complaint was filed January 12, 1971 under the title Jordan v. Swank, No. 71 C 70, N.D.Ill. The preliminary injunction was entered April 16, 1971.

      . At the same time defendant somewhat inconsistently argued in his motion for stay that our injunction order violated the Eleventh Amendment. As stated in the text, there had been no mention of the Eleventh Amendment point in the memorandum filed with us in opposition to an injunction pending appeal.


author: COFFIN, Chief Judge.

text:
    The ELTON ORCHARDS, INC., Plaintiff-Appellee, v. Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, et al., Defendants-Appellants.
    No. 74-1315.
    United States Court of Appeals, First Circuit.
    Dec. 19, 1974.

      Carl W. Gerig, Jr., Counsel for Manpower Litigation, U. S. Dept, of Labor, and John Edward Harris, Atty., Dept, of Justice, Washington, D. C., with whom John L. Murphy, Chief, Government Regulations Section, Crim. Div., and George W. Masterton, Atty., Dept, of Justice, were on brief, for appellants.
    Edward F. Smith, Andre J. Barbeau, and Joseph Stewart, Concord, N. H., on brief for Benjamin C. Adams, Commissioner, Dept, of Employment Security, State of New Hampshire, appellant.
    Shane Devine, Manchester, N. H., with whom Devine, Millimet, Stahl & Branch, Manchester, N. H., was oh brief, for ap-pellee.
    Katherine S. Gruenheck, Washington, D. C., on brief for Migrant Legal Action Program, Inc., Amicus Curiae.
    Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This is an appeal by the Secretary of Labor and two other allied federal defendants from a preliminary injunction entered by the District Court for New Hampshire ordering them to make available to appellee a number of foreign apple pickers. At issue is the interstate clearance system for recruitment of agricultural workers (ICS) established by 20 C.F.R. §§ 602.2 and 602.9, under authority of the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. The ICS is one element of a complex statutory structure designed to facilitate the employment of domestic workers for seasonal agricultural labor, and to permit the use of foreign nationals temporarily admitted to the United States to work for a specific employer if domestic workers are unavailable. The events leading to this appeal cannot be understood without prior explanation of the statutes and regulations involved.

The Wagner-Peyser Act authorizes the establishment of a federal employment service, and the designation of state employment services to function in conjunction with the federal service and to receive federal funding. The responsibilities of the federal service are lodged with Manpower Administration in the Department of Labor. The designated state agencies in New Hampshire and Louisiana, which figure in the events described below, are their respective Departments of Employment Security. Regulations promulgated pursuant to the Wagner-Peyser Act provide first for state agency placement of local workers with local agricultural employers. 20 C.F.R. § 602.8. If local workers are not available, the ICS may be used to recruit, through other state agencies, workers available in other states. 20 C.F.R. §§ 602.2 and 602.9. Workers recruited through the state agencies are protected by a series of regulations prescribing minimum working and living conditions. 20 C.F.R. §§ 602.9-602.11, 620.1-620.17.

The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., permits the admission of aliens to serve as temporary agricultural laborers if domestic workers are unavailable. The Act defines as a “nonimmigrant” an alien who “. is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country . . . .” 8 U.S.C. § 1101(a)(15)(H)(ii). Nonimmi-grants thus defined may be admitted upon a determination by the Attorney General after “consultation with appropriate agencies of the Government” that the pertinent requirements are satisfied. 8 U.S.C. § 1184(c). This determination is in fact delegated to the Immigration and Naturalization Service (INS). INS regulations require that an employer’s petition for the admission of nonimmigrant aliens to perform temporary service be accompanied by “. . . a certification'from the Secretary of Labor . stating that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed, or a notice that such certification cannot be made . ...” 8 C.F.R. § 214.-2(h)(3). If the Secretary of Labor states that the certification cannot be made “. . . the petitioner shall be permitted to present [to INS] countervailing evidence that qualified persons in the United States are not available and that the employment policies of the Department of Labor have been observed.” Id.

The Labor Department regulations empower the Regional Manpower Administrator to issue the certification required by the immigration regulations if the employer has first filed an offer of employment with the state employment office; and if the Regional Administrator finds that United States workers would not be adversely affected by the admission of alien workers, and that “. . . reasonable efforts have been and will continue to be made by the [state] Employment Service and the employers to obtain domestic workers . to perform the work for which the services of temporary foreign workers are requested, and for which domestic workers are not available.” 20 C.F.R. § 602.-10(d)(2). Use of the interstate clearance system may be required by the Regional Administrator as a part of the employer’s “reasonable efforts” to obtain domestic workers. 20 C.F.R. § 602.10(d)(2).

Appellee has traditionally used, and prefers to use, crews of apple pickers from the British West Indies. In past years appellee, along with other New England apple growers, has submitted to the state employment service clearance orders requesting apple pickers, and, after hiring the few workers locally available, has obtained the requisite certification for the admission of alien workers. On June 10, 1974, appellee submitted to the New Hampshire Department of Employment Security (NHDES) a clearance order requesting 50 workers. The NHDES forwarded appellee’s clearance order along with those of other New Hampshire growers to the Regional Manpower Administration with a request for the certification of 404 foreign workers, local workers being unavailable. On July 2, the Regional Manpower Administration notified all six New England state employment services that they should increase their efforts to recruit local workers, and that they were to utilize the ICS, extending the clearance orders to Puerto Rico, Ohio, Texas, and Louisiana.

On August 8, appellee was advised by the NHDES that its order would be filled by workers recruited from various parts of Louisiana who had no apple picking experience. In the ensuing five weeks appellee, through an assortment of representatives in New Hampshire and New York, changed its mind half a dozen times with respect to whether it would hire the Louisiana workers. Ap-pellee’s order and that of one small orchard were the only orders filled by interstate recruitment through the ICS. Late in August, and early in September, the Department of Labor certified the need for aliens to work in the other New Hampshire orchards. On September 12, appellee filed its complaint in district court, alleging that the certification of foreign workers to other orchards coupled with the refusal to certify them to appellee was arbitrary, capricious, invidiously discriminatory, and a deprivation of property without due process.

The district court held a hearing on September 13, received memoranda from the parties on September 16, and the following day entered an order requiring appellants to make available to appellee “its fair proportion of the foreign pickers”. Appellants, rather than attempt to take foreign workers from other orchards, certified 34 additional foreign workers for appellee.

Appellants first suggest that the district court lacked jurisdiction, and that appellee failed to exhaust the administrative remedies available to it. We find neither argument persuasive. While we agree with appellants that the district court’s reliance on 28 U.S.C. § 1346 was mistaken, Richardson v. Morris, 409 U.S. 464, 465-466, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973), we also agree with appellee’s suggestion at oral argument that, as we and a number of circuits have held, jurisdiction may properly be grounded on Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701(a), 702, 704 and 706. Bradley v. Weinberger, 483 F.2d 410, 413 — 114 (1st Cir. 1973); Pickus v. United States Board of Parole, 507 F.2d 1107, n. 4 at 1109 (D.C.Cir. 1974).

With respect to exhaustion, appellants suggest that since it is the Attorney General who is empowered to admit aliens as nonimmigrant workers under 8 U.S.C. § 1184(c), appellee should have availed itself of its right to file a petition for the admission of foreign workers, submitting to the Immigration and Naturalization Service its evidence that “. . . qualified persons in the United States are not available and that the employment policies of the Department of Labor have been observed.” 8 C.F.R. § 214.2(h)(3). Certainly appellee might have pursued such a course, but its failure to do so does not preclude judicial review. The exhaustion doctrine functions to prevent the disruption of administrative processes by withholding judicial review until the agency has developed the relevant facts, applied its expertise and exercised the discretion entrusted to it by law. McKart v. United States, 395 U.S. 185, 193-194, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972).

“Closely related to the above reasons is a notion peculiar to administrative law. The administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction. As Professor Jaffe puts it, ‘[t]he exhaustion doctrine is, therefore, an expression of executive and administrative autonomy.’ ” 395 U.S. at 194, 89 S.Ct. at 1663, citing, L. Jaffe, Judicial Control of Administrative Action, at 425 (1965).

Here the Labor Department’s disposition of appellee’s clearance order was final, the application of policies and regulations within the Department’s purview was complete. Now to review the Department’s action neither infringes upon “executive autonomy”, nor fractures the integrity of the statutory scheme under which the Department functions.

Another consideration subsumed under the concept of exhaustion is whether further resort to administrative remedies might have resolved the dispute at the administrative level, obviating the need to expend judicial resources. McKart v. United States, supra, at 195, 89 S.Ct. 1657. It is conceivable that had appellee petitioned the INS for the admission of alien workers, and had it submitted evidence supporting its petition the INS would have permitted the importation of the workers. But we regard such an outcome as too speculative to warrant the imposition of a requirement that a petition be processed before the INS prior to judicial review of the Secretary of Labor’s refusal to certify an employer’s request for alien workers.

“. . . [Tjhere are cases where the customary rationales for the exhaustion of administrative remedies doctrine — avoidance of unnecessary judicial intervention and the need for full, unhampered exercise of agency expertise on a well developed factual record of its own making, see e. g. McKart v. United States, 395 U.S. 185, 193-195, [89 S.Ct. 1657, 23 L.Ed.2d 194] (1969)— do not apply and the doctrine’s application thus becomes pointless. In some cases the doctrine is no more than ‘an exercise in futility,’ . . .” American Federation of Government Employees v. Acree, 155 U.S.App.D.C. 20, 475 F.2d 1289, 1292 (1973).

Although the submission of a petition might not be futile, we think the INS would be understandably reluctant to disregard Labor Department findings within the latter department’s field of expertise. Further, the pace of events from the blossoming of the trees in the spring when the growers can begin to estimate the size of their crops and' the concomitant need for workers, to the beginning of the harvest is relentless and rapid. The interposition of an additional exhaustion requirement would all but assure that judicial review would come too late to aid a litigant who had been treated unfairly.

We thus reach the substantive merits of this appeal. The district court premised its order on a finding that application of the pertinent regulations had resulted in accidental and unconscious, but nevertheless unconstitutional discrimination against appellee. The Department of Labor’s refusal to certify appellee’s clearance order for the admission of alien workers was a consequence of the selection of that order for recruitment by the Louisiana Department of Employment Security. Such differential treatment neither implicates a fundamental right, nor creates a suspect classification. Our inquiry need go only far enough to determine that there existed a rational basis for appellants’ actions. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

Appellee complains that the allocation to it of the Louisiana workers and of no aliens, while other orchards were granted permission to import aliens and were not required to accept domestic workers from distant states, was arbitrary and capricious. In essence appellee challenges the working of the ICS which circulates discrete offers of employment (clearance orders) from individual employers, allowing state employment services to select one or more for recruitment, as Louisiana selected appellee’s order. It may be that a system which apportioned domestic workers among the various employers submitting clearance orders would afford greater fairness to the employers, but as long as there is a rational basis for the operation of the system in its present form, inequitable or wasteful results argue for pragmatic reforms rather than adjudications of unconstitutionality. We can conceive of rational bases for the separate treatment of the clearance orders of individual employers. It may be simpler for the Department of Labor and the state employment services to handle separate orders, and more efficient to arrange for the transportation of a group of workers to a particular orchard on a particular date. Further, the present manner of operating the ICS may be the most consistent with the desire to protect domestic workers, which underlies all of the statutory provisions here at issue. Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969); NAACP, Western Region v. Brennan, supra; Digilab v. Secretary of Labor, 495 F.2d 323 (1st Cir. 1974). It is idle to assert at this time in our history that because it results in unequal benefits to different persons, a federal statute which is rationally based is unconstitutional. United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938); Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 70 S.Ct. 403, 94 L.Ed. 381 (1949).

In its memorandum submitted to the district court and on appeal appellee also argues that the Department of Labor’s refusal to certify was inconsistent with the Wagner-Peyser Act Regulations and the relevant provisions of the Immigration and Nationality Act, basing its argument on a series of cases holding improper the Secretary of Labor’s refusal to certify petitions for the admission of skilled workers. See, e. g., Digilab v. Secretary of Labor, supra; Ratnayake v. Mack, 499 F.2d 1207 (8th Cir. 1974); Reddy, Inc. v. United States Department of Labor, 492 F.2d 538 (5th Cir. 1974); Secretary of Labor v. Farino, 490 F.2d 885 (7th Cir. 1973). Each of these cases involved an application for a single immigrant visa for a skilled worker under 8 U.S.C. § 1153(a)(6), the reviewing courts finding that the Secretary of Labor had not adequately demonstrated the availability of qualified domestic workers. Appellee asserts an analogous failure here. The Louisiana workers, states appellee, since they were inexperienced, were unqualified. We find the analogy inapposite. In the cases involving § 1153(a)(6) the Secretary of Labor, in rejecting an employer’s request for certification with regard to an individual highly skilled worker, has relied on statistical data as to the availability of domestic workers with what the Secretary deemed to be similar skills. Here the Interstate Clearance System produced actual workers prepared to perform the tasks required by appellee. The Labor Department Regulations provide specific procedures, including use of the ICS to determine whether a clearance order should be certified for the use of alien workers. The use of such procedures is not inconsistent with the statutory framework erected by the immigration statutes for the admission of temporary laborers as nonimmigrants. Because of the unskilled nature of the work, the number of aliens for whom admission is annually sought, and the brief duration of the aliens’ presence in the United States the certification process is necessarily less discerning than that applied to petitions on behalf of skilled workers for immigrant visas,- but that distinction simply reflects the statutory pattern; it does not depart from it. We recognize that appellee’s business depends on the proper harvesting of its crop during the brief span of weeks when the apples are ready, and that there may be good reason for appellee’s wish to be able to rely on the experienced crews of British West Indians who have performed well in the past, but here that preference collides with the mandate of a Congressional policy. To recognize a legal right to use alien workers upon a showing of business justification would be to negate the policy which permeates the immigration statutes, that domestic workers rather than aliens be employed wherever possible.

We therefore reverse the judgment of the district court. While we have not addressed the propriety of the court’s ruling that plaintiff faced the prospect of irreparable harm, we are convinced that, at least on the basis of such evidence as was presented at the abbreviated hearing, plaintiff did not demonstrate a sufficient likelihood that it would ultimately prevail on the merits.

Reversed.

      . The president of the New England Apple Council protested to the Department of Labor that previous extensions of clearance orders outside of the New England states had yielded “disastrous” results for the growers. At oral argument the government indicated that the extension of the ICS outside of New England was, at least partially, a response to the decision of the District Court for the District of Columbia in NAACP, Western Region v. Brennan, 360 F.Supp. 1006 (D.D.C.1973), ordering the implementation of a variety of policies to protect domestic migrant farm laborers.

      . We briefly recount these events as they are described in appellants’ brief. August 8 — an Elton representative from New Hampshire would go to Louisiana to screen the workers. August 22 — representative would not go to Louisiana. August 23 — Elton representative called Regional Manpower Administration to protest requirement that Louisiana workers be hired, but, after explanation of certification process, agreed to hire them. September 4— Elton wrote letter refusing to hire Louisiana . workers. September 9 (approximately) — representative of Elton’s parent corporation, No-Irinsberg, advised Labor Department official in Washington that Elton would hire workers. September 10 — Norinsberg representative told Labor Department official that apples were dropping to the ground, and Elton could not wait for Louisiana workers. September 11— Elton foreman told Labor Department that apples would not be ready for picking until September 15. Norinsberg representative said that Louisiana workers would not be hired — to avoid subjecting them to a long bus ride. This sequence of changes of position followed immediately by this lawsuit accounts for the Labor Department’s failure to supply appellee with written notice of the reasons for the refusal to certify.

      . Allocation of alien workers was made to other orchards on a “fair share” basis. Ap-pellee received no allocation because the Louisiana Department of Employment Security had indicated that it would provide an adequate number of domestic workers to fill ap-pellee’s clearance order.

      . Appellants argue that the district court acted in such haste as to constitute a denial of due process. They point out that the district court granted them neither an opportunity to put on witnesses, nor a requested one day extension of time in which to prepare the memorandum, affidavits and exhibits which they submitted to the court. We find the district court’s actions difficult to justify. The harvest was imminent, but the loss of a day or two to permit the government to present its case could hardly be viewed as unwarranted. In light of the fact that appellants did manage, after working over the week-end, to submit a twenty page memorandum, two substantial affidavits, and several documentary exhibits, we are not inclined to dispose of the case on the basis of the district court’s precipitate treatment of appellants.

      . The government relies on two cases as authority for the proposition that appellee failed to exhaust appropriate administrative remedies: Cobb v. Murrell, 386 F.2d 947 (5th Cir. 1967) and Braude v. Wirtz, 350 F.2d 702 (9th Cir. 1965). We read neither case to involve the doctrine of exhaustion. We note also that the Fifth Circuit substantially limited Cobb in Reddy, Inc. v. United States Department of Labor, 492 F.2d 538 (5th Cir. 1974).
      Moreover, there is no indication that judicial review at this juncture is premature. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); see also Raper v. Lucey, 488 F.2d 748 n. 3 at 751 (1st Cir. 1973).

      . Witness this case. Even though treated with expedition by both the district court and this court, the opinion in this appeal arrives long after the last pippin has been left wiz-zened on the limb by the harsh November frosts. Although our decision comes too late to have any effect on the admission of aliens to pick this year’s apple crop we do not view the case as moot. Next summer the New Hampshire orchards will in all probability again seek the admission of alien workers, and the district court’s opinion in this case, if allowed to stand, would have a substantial impact on the Department of Labor’s treatment of those requests.

      . Even if we accepted the analogy appellee seeks to draw, we find the argument unpersuasive since the only relevant job specifications listed on appellee’s clearance order were ability to climb 15 to 20 foot ladders, good health, “good judgment in determining the right color of the apples ready to be picked”, and a 9 hour working day. Experience was not listed as a requirement. Moreover, apple picking is described as unskilled labor in the Dictionary of Occupational Titles published by the Department of Labor. Finally, appel-lee admits that many of its workers in the past years, both foreign and domestic, have been inexperienced,

      . The analogy would be stronger had appel-lee, as it originally said it would, sent a representative to Louisiana to screen the proffered workers, and had he then found some or all of them unqualified by reason of specific defects in their physical or mental condition. Appellee complains that the dispersion of the workers in various localities in Louisiana made individual screening burdensome. We find it difficult to credit this complaint when appellee annually makes all the arrangements to bring in a crew from the British West Indies, and this year brought in a crew from Arizona.


author: BARRETT, Circuit Judge. WILLIAM E. DOYLE, Circuit Judge

text:
    RETAIL STORE EMPLOYEES UNION LOCAL 782, Appellant, v. SAV-ON GROCERIES, Appellee.
    No. 74-1219.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 15, 1974.
    Decided Jan. 7, 1975.

      Robert L. Uhlig, Kansas City, Kan., for appellant.
    John M. Edgar, Kansas City, Mo. (Earl J. Engle and Claude L. Rice, Kansas City, Kan., on the brief), for appellee.
    Before SETH, BARRETT and DOYLE, Circuit Judges.
   BARRETT, Circuit Judge.

Retail Store Employees Union Local 782 (Union) appeals from a judgment, following trial to the court, in favor of Sav-On Groceries (Sav-On) refusing to enforce an Arbitration Award issued in favor of one of Union’s members.

Mrs. Donna Whiles, member of appellant Union, was an employee of Sav-On with the job classification of “clerk” which required her to perform both “checking” and “stocking” duties. During 1971 and 1972 her working hours were reduced (allegedly in violation of the existing labor contract), while other employees with less seniority, did not have their hours similarly reduced. Mrs. Whiles filed a grievance and the matter was submitted to an arbitrator, Mr. Ralph C. Barnhart. The particular issue submitted to the arbitrator read:

Did the company exercise fairness in judging the qualifications of Donna Whiles by not allowing her to displace less senior employees who engage in stocking and checking duties.

Following a hearing before the arbitrator, an award was issued November 29, 1972, sustaining the grievant, Mrs. Whiles. This award provided not only that Sav-On had not acted fairly in dealing with its employee, but also held that: (1) Mrs. Whiles was entitled to back pay; and (2) that Sav-On could not “assign her impossible heavy tasks (i. e., stocking heavy items) in order to reduce her hours or perhaps to eliminate her altogether . . . ” Thereafter Sav-On refused to pay the back wages as directed by the arbitrator and on January 2, 1973 discharged Mrs. Whiles.

In light of these actions, Union alleged in its complaint that Sav-On had wrongfully failed to comply with the arbitration award. Sav-On answered that the issue of back wages had not been submitted to the arbitrator and that he was, therefore, without jurisdiction to make such an award. Sav-On further alleged that that portion of the award directing it to not assign heavy tasks to Mrs. Whiles (while such tasks could be assigned to male employees in the same job classification), constituted a per se violation of Title VII of the Civil Rights Act and could not be enforced. Sav-On, in addition, counterclaimed for an order requiring the issues of back pay and the discharge of January 2, 1973 to be submitted to arbitration.

The trial court held that the arbitration award was null and void insofar as it granted back pay to Mrs. Whiles and insofar as it required Sav-On to violate the law. It also ordered the parties to submit to arbitration on the issues of back pay and the discharge of January 2.

On this appeal Union contends: (1) the trial court erred in refusing to enforce the arbitration award; (2) the issue of back pay was within the jurisdiction of the arbitrator to decide; (3) the issue of back pay should have been remanded to the original arbitrator for clarification; and (4) the trial court erred in concluding that the arbitration award requires Sav-On to violate Title VII of the Civil Rights Act.

I.

Union’s contention that the trial court erred in not enforcing the arbitration award “even if it disagreed with the arbitrator’s findings and conclusions” is misplaced. Union has misconstrued, we believe, the basis of the trial court’s holding. The trial judge did not question the merits of this award, i. e., whether Sav-On had in fact acted fairly in dealing with Mrs. Whiles, but rather only whether the arbitrator had authority (in light of the issue presented for arbitration) to make an award of back pay. The authorities cited by Union in this regard are inapposite.

II.

Union’s primary contention is that the arbitrator had authority to grant back pay to the grievant, Mrs. Whiles, even though the precise issue submitted (as set out above) did not ask the arbitrator to formulate such a specific remedy.

While we take note that there is some authority to the contrary, see, Electric Specialty Co. v. Local 1069, International Brotherhood of Electrical Workers, AFL-CIO, 222 F.Supp. 314 (D.C.Conn.1963), we hold the better rule is that adopted in Kansas City Luggage & Novelty Workers Union, Local No. 66, AFL-CIO v. Neevel Luggage Manufacturing Company, 325 F.2d 992 (8th Cir. 1964):

In granting the Company summary judgment, the trial court merely declined to enforce so much of the arbitrator’s award as related to back pay, and did so without prejudice to further arbitration proceedings to resolve that issue. While it may be doubted that the question was or is of sufficient importance to justify reviving or prolonging any part of the dispute between the parties, it is true, as the trial court said, that the back pay issue was not specifically or necessarily included in the subject matter submitted to arbitration.
It is the law that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409. See, also United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 570-571, 80 S.Ct. 1343, 4 L.Ed.2d 1403; Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462. [Emphasis added]. 325 F.2d 992 at 993-994.

Sav-On’s challenge to the arbitrator’s award is here premised upon the fact that the issue submitted to the arbitrator was a narrow one which did not encompass the back-pay “remedy” awarded. The challenge is not based upon an allegation that the bargaining agreement or the contract itself did not provide for a specific remedy for the grievance complained of (regardless of whether the arbitrator was asked to formulate a remedy by the issues submitted). Union’s cases cited for authority of what an arbitrator’s remedial subject-matter jurisdiction might be in the latter situations are not, therefore, persuasive.

Similarly, this is not a case where the issue submitted to the arbitrator is in any sense “vague”. Kroger Company v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 661, 380 F.2d 728 (6th Cir. 1967), is, accordingly, inappo-site.

Finally, Union cites to United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), for the proposition that an arbitrator “is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations.” 363 U.S. at 597, 80 S.Ct. at 1361. Any implication drawn from this language that an arbitrator has the “inherent” power to formulate a remedy despite the scope of the issue presented, is undercut, we believe, by the Court’s qualifying language in that same case:

Moreover, we see no reason to assume that this arbitrator has abused the trust the parties confided in him and has not stayed within the areas marked out for his consideration. It is not apparent that he went beyond the submission. [Emphasis added]. 363 U.S. at 598, 80 S.Ct. at 1361.

In the case at bar we think that the arbitrator clearly went beyond that area “marked out for his consideration.”

We hold that the issue of back pay was not submitted to the arbitrator here and that the trial court did not err in finding the arbitration award “null and void” insofar as it applied to that issue.

III.

Union’s contention that the issue of back pay should have been remanded to the original arbitrator is based upon its assumptions that: (1) the original arbitrator had authority to award back pay; and (2) the award should be remanded merely to clarify the specific amount owing to Mrs. Whiles. This argument fails in light of our previous determination that the arbitrator had no authority to award back pay.

Since the determination must now be made as to whether Mrs. Whiles is entitled to back pay and does not involve merely the “clarification” of the prior award, we see no harm in the issue being presented to a new arbitrator even though this procedure involves a de novo determination. The merits of the issue of back pay have never been legitimately decided. Hence, we see no threat to the “finality” of the original arbitrator’s decision. United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, is not controlling under these circumstances.

We hold that the trial court did not err in its order submitting the issue of back pay to a new arbitrator.

IV.

As discussed in Section II, supra, we have previously determined that the arbitrator was restricted to deciding only those issues submitted and was without authority to make an award of back pay. We think that the order directing Sav-On not to assign Mrs. Whiles “impossible heavy tasks” etc., was likewise beyond the arbitrator’s authority.

In light of this, we do not feel constrained to discuss the trial court’s conclusion that such order was void in that it would result in Sav-On being compelled to violate Title VII of the Civil Rights Act. We need not reach this issue. A trial court’s judgment may be affirmed by an appellate court on a basis not relied upon by the trial court. Pound v. Insurance Company of North America, 439 F.2d 1059 (10th Cir. 1971); Potter v. LaMunyon, 389 F.2d 874 (10th Cir. 1968); Texaco, Inc., v. Holsinger, 336 F.2d 230 (10th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 669, 13 L.Ed.2d 563 (1965).

We affirm.

WILLIAM E. DOYLE, Circuit Judge

(dissenting).

I must dissent, first, because it appears to me highly unreasonable to rule that the submission was technically inadequate or insufficient when the entire purpose of the submission was not only to determine the rightness or wrongness of the problem, but to achieve a monetary result. After all, they were not seeking a declaratory judgment. Each of these arbitrations is significant in terms of monetary benefit.

Secondly, it would appear that the ap-pellees agree that the collective bargaining agreement contract contemplated a monetary award in circumstances such as the present because they would resubmit the cause, but preferably to another arbitrator to obtain an answer to this questioning. Their objection is to the result.

Third, the question is not whether the arbitrator has the authority to decide issues which have not been properly submitted to him by the parties. Obviously, he does not have. See Local 791, Int’l Union of Electrical, Radio & Machine Workers v. Magnavox Co., 286 F.2d 465 (6th Cir. 1961); Textile Workers Union of America v. American Thread Co., 291 F.2d 894 (4th Cir. 1961). The issue is whether the award of money damages was within the contemplation of the submission. Only one case is cited by the majority opinion for the proposition that the arbitrator lacks the authority to award back wages where the issue presented to him does not expressly include such a request. That case is Kansas City Luggage & Novelty Workers Union, Local 66 v. Neeval Mfg. Co., 325 F.2d 992, 994 (8th Cir. 1964). This is doubtful authority. The court was reluctant in holding that the arbitrator exceeded his authority. See 325 F.2d at 994. The majority of cases reach the opposite conclusion. See for example International Union of Electrical, Radio and Machine Workers v. Peerless Pressed Metal Corp., 489 F.2d 768 (1st Cir. 1973); Kroger Co. v. International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America, Local 661, 380 F.2d 728 (6th Cir. 1967); Newark Wire Cloth Co. v. United Steelworkers of America, 339 F.Supp. 1207 (D.N.J.1972); Electric Specialty Co. v. Local 1069, Int’l Brotherhood of Electrical Workers, 222 F.Supp. 314 (D.Conn.1963).

Fourth, I object to the submission of the question whether the collective bargaining contract contemplated a back pay award being submitted to a different arbitrator. The majority’s position that it has no objection to the submission of this issue to another arbitrator is puzzling. The question arises as to what the trial court’s objection was to the old arbitrator. If an error was made, the trial court or this court could have so concluded. Perhaps the trial court was dissatisfied with the arbitrator’s decision.

Fifth, the whole purpose of arbitration of labor disputes is frustrated when procedures are continued interminably. The trial court’s order requiring the parties to rearbitrate an issue which has been decided by an arbitrator is out of harmony with the basic philosophy of arbitration.

For these reasons I disagree with the majority decision.

      . The Union has not appealed that portion of the judgment ordering the parties to proceed to arbitration over the discharge of Mrs. Whiles.


author: CRAVEN, Circuit Judge: BOREMAN, Senior Circuit Judge

text:
    John F. BELLAMY, Jr., Appellant, v. MASON’S STORES, INC., (RICHMOND), and A. Friedman, Appellees.
    No. 74-1139.
    United States Court of Appeals, Fourth Circuit.
    Argued May 8, 1974.
    Decided Dec. 27, 1974.

      Ivy P. Blue, Jr., Hanover, Va., for appellant.
    Matthew N. Ott, Jr., Richmond, Va. (Ott, Morchower, Thompson & McMul-lan, Richmond, Va., Alvin Goldstein and Berman, Paley, Goldstein & Berman, New York City, on brief), for appellees.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.
   CRAVEN, Circuit Judge:

John Bellamy sued Mason’s Stores, Inc., and its Richmond area supervisor, A. Friedman, under Title VII of the 1964 Civil Rights Act and 42 U.S.C. § 1985(3) to recover his job and damages. His complaint was that he was fired for his membership in the Ku Klux Klan. The district court dismissed his complaint. 368 F.Supp. 1025 (E.D.Va.1973). The issue on appeal is whether a private employee is protected by federal law from discharge on the ground that he belongs to an obnoxious organization, i. e., whether the right of association is protected against private interference.

We agree with the district court that the complaint states no cause of action under Title VII, 42 U.S.C. § 2000e — 2. That modern statute is directly aimed at discrimination based on the suspect classifications of race, color, national origin, sex, and religion. In his complaint Bellamy characterized the Klan as a patriotic organization. Nonetheless he argues that the Klan is also a religion because its meetings are full of “religious pomp and ceremony.” For the limited purpose of a motion to dismiss, we think Bellamy is bound by his complaint, absent a timely motion to amend. We therefore decline to consider whether ceremony is enough to make the Klan a religion for the purposes of Title VII.

Coverage under 42 U.S.C. § 1985(3) is another matter. The elements of an adequate complaint under that section are delineated by Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). First of all it is clear from Mr. Justice Stewart’s opinion that “the words of the statute fully encompass the conduct of private persons.” 403 U.S. at 96, 91 S.Ct. at 1795. He went on to say that the failure to mention state action as a requisite “can be viewed as an important indication of congressional intent to speak in § 1985(3) of a11 deprivations of ‘equal protection of the laws’ and ‘equal privileges and immunities under the laws,’ whatever their source.” 403 U.S. at 97, 91 S.Ct. at 1796. (Emphasis in original).

To come within the legislation a complaint must allege that the defendants did (1) “conspire . . . ” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” It must then assert that one or more of the conspirators (3) did, or caused to be done, “any act in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.”

Id. at 102-103, 91 S.Ct. at 1798.

Although it is clear that state action is not necessarily an essential ingredient under this statute, nevertheless we think that some state involvement is necessary in this particular application of the statute in order to maintain a cause of action.

As recently as 1965 six members of the Court were committed to the proposition that section 5 of the fourteenth amendment empowers the Congress to enact laws punishing all conspiracies, with or without state action, that interfere with fourteenth amendment rights. United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). But only a minority of the Guest Court thought that the fourteenth amendment per se secured the right to equal access to state facilities as against private invasion — absent some state involvement.

Mr. Justice Brennan, in partial dissent, stated the Court’s view to be that:

[Bjecause there exist no Equal Protection Clause rights against wholly private action, a conspiracy of private persons to interfere with the right to equal utilization of state facilities . is not a conspiracy to interfere with a ‘right . . . secured by the Constitution’ within the meaning of [18 U.S.C.] 241.

383 U.S. at 776, 86 S.Ct. at 1188.

Section 1985(3) creates civil liability against any persons who conspire to deprive any other person or class of persons of “the equal protection of the laws, or of equal privileges and immunities under the laws.” The language of the statute tracks the language of the fourteenth amendment, and we now know that included within it is a wholly private conspiracy to deny Negro citizens the right of travel and rights based upon the thirteenth amendment. Griffin v. Breckenridge, supra. But we think the language of equal protection chosen by the 1871 Congress cannot be interpreted to mean that persons who conspire without involvement of government to deny another person the right of free association are liable under this statute. This is so because the right of association derives from the first amendment — itself framed as a prohibition against the federal government and not against private persons, and because the incorporation doctrine has never been extended by the Supreme Court to apply to private persons.

In Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971), the en banc court held that § 1985(3) reached a private conspiracy, with no state action, to interfere with the plaintiff’s first amendment rights of freedom of assembly and worship. The Eighth Circuit reasoned that Congress had the power to reach this conspiracy under sections 1 and 5 of the fourteenth amendment, and that the first amendment rights of freedom of assembly and worship have long since been incorporated into the fourteenth amendment and applied as against the states. Since Griffin, supra, makes it clear that private conspiracies without state action are within the compass of § 1985(3), the court concluded that the first amendment rights of freedom of assembly and worship are protected as against wholly private action. “Thus, the Eighth Circuit . . . combined the incorporation doctrine of the due process clause, Griffin’s reading of section 1985(3) and Justice Brennan’s Guest concurrence to eliminate the ‘state action’ limitation from the Bill of Rights.” Note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 Colum.L.Rev. 449, 516 (1974). It is perfectly true that the first amendment now speaks to the states by way of the fourteenth amendment, but to say that it also speaks to private persons seems to us an innovation that must come from the Congress or the Supreme Court. It is not hard to reconcile what six members of the Court said in Guest — that Congress may punish private conspiracies to violate the fourteenth amendment guarantees — with what the Court held — that if the language of such a statute simply tracks that of the fourteenth amendment and there is no other source of the claimed “right” to be vindicated, it will be held to include the element of state action or at least some minimal state involvement.

For example, if the Congress should today become concerned about the integration of the public schools in Boston it seems reasonably clear that it could constitutionally make it a criminal offense for any person to interfere by force and violence with the attendance of children at public school. It would seem that the Congress could rationally conclude that such a statute would aid and implement the duty of the state under the fourteenth amendment to afford to all school children the equal protection of the laws. But if instead of clearly defining what was prohibited, i. e., interference with school attendance, the Congress merely reenacted § 1985(3), it would seem that an essential element of such an offense would be some involvement of the state — for the reason stated in Guest —that there are no Equal Protection Clause rights against wholly private action. Of course, if the complaint alleged a conspiracy against blacks and invoked the thirteenth amendment, it would be unnecessary to show state involvement. Griffin v. Breckenridge, supra.

Although the result achieved by the Eighth Circuit is an appealing one, we are unable to make the several jumps— without further guidance from the Supreme Court — from statutory language tracking the fourteenth amendment to the amendment itself to incorporation of the first amendment to application of that amendment to private persons, and while on our way jettison state involvement. But see Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971).

Affirmed.

BOREMAN, Senior Circuit Judge

(concurring in the result):

While I am in complete agreement with the result reached by the majority opinion, that being the dismissal of the complaint, I prefer to concur specially in order to express some fundamental differences I have with the reasoning adopted by the majority in affirming the decision of the court below.

At the outset, this complaint could have been dismissed for the reasons that the act of an agent is the act of the corporation and it is necessary to have two persons or entities in order for there to be a conspiracy; a corporation cannot conspire with itself. Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911, 914 (5 Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). A dismissal could have been achieved without reaching the constitutional question.

Turning to the constitutional issue, I have reservations concerning the broad view held by the majority as to the scope of Congressional power to punish private conspiracies. As I read the majority opinion, it implies that the Fourteenth Amendment provides Congress with the authority and power to punish purely private conspiracies that would infringe upon the right to engage in activities which are enumerated in the Constitution as rights of the people. They decline to grant relief, however, because they do not read the statute (42 U.S.C. § 1985(3)) as exercising that power and authority. They prefer to await a clear signal from Congress or the Supreme Court that this broad power has been approved and put into effect before acting to enforce it. I cannot agree with that view; Congress does not have such authority under the Fourteenth Amendment. Thus, no clear signal could properly be forthcoming from either Congress or the Supreme Court that the power had been exercised.

In my view the Fourteenth Amendment empowers Congress to protect activities commonly considered to be federal rights only from interference by governmental entities. The majority seeks to broaden that power to encompass private interference. In fact, the language pertaining to most federal rights is specifically limited to proscribing governmental interference, e. g., “Congress shall make no law . . ,” or “[n]o State shall make or enforce any law . ” The result is that the activities and conduct are protected only from governmental action; Congress has the authority to provide that protection and no other. The Fourteenth Amendment is specifically limited to protecting the citizenry from state action which impinges on the rights encompassed in that Amendment, while private infringements are not proscribed. There are some instances where Congress can reach purely private interference, such as voting in federal elections, Oregon v. Mitchell, 400 U.S. 112, 122, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970); the right to travel, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); and the rights provided by the Thirteenth Amendment, Jones v. Alfred E. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); however, they are exceptional freedoms uniquely requiring complete and absolute protection. Otherwise, and I repeat, Congress is empowered to protect the enumerated activity only from infringement by a governmental entity. In this case, it is not just the language of the statute, but the words of the Fourteenth Amendment which limit the relief to be granted.

The case of United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), relied upon by the majority, merely enunciates the fact that, under the Fourteenth Amendment, private conspiracies to cause state action which interferes with protected activities can be punished by Congress. Power to punish a private conspiracy to cause state interference is not power to punish a private conspiracy to cause purely private interference. Guest does not mean that Congress can punish all conspiracies interfering with Fourteenth Amendment activities. Since the Fourteenth Amendment rights are all guaranteed protection from infringement by state action, Congress can punish only conspiracies which seek to cause state action violative of the Fourteenth Amendment. The authority of Congress is limited by the bounds of the mantle of protection the right provides, and that protection, in the Fourteenth Amendment, is limited to preventing governmental infringements upon the activities enumerated or incorporated into that Amendment. Thus, Congress cannot punish purely private conspiracies to interfere with activities which the Constitution protects only against governmental interference.

The example given by the majority, that Congress could pass a law proscrib-, ing private interference with public school attendance, is, in my opinion, fallacious. There is no federal right to be free from purely private interference in attending school. A conspiracy to cause the state to interfere with children seeking to attend classes could be reached by Congress, but not one to cause private individuals to interfere. The power of Congress is limited by the scope of the right, and the only method whereby the scope of these protections could be extended to purely private acts is by constitutional amendment, not by a signal from Congress or the Supreme Court.

Furthermore, there is no federal right to be protected against private discrimination because of one’s patriotic affiliations. Conspiracy to cause the state to discriminate on that basis might be reached by Congress, but not acts of purely private discrimination. The relief sought by Bellamy is beyond the power of Congress or the federal judiciary to provide.

Thus, I agree that this case properly was dismissed, but not simply because the statute does not reach the discharge for membership in a patriotic organization, conduct for which the remedy is here sought. Rather, I view dismissal as proper because neither the Congress nor the federal judiciary has the authority to protect an activity (freedom of association) specifically designated as a First Amendment right from any infringement other than that proscribed (governmental infringement) by the language establishing the right. Other than the exceptions stated above, that protection is limited to preventing governmental interference and cannot reach purely private acts. Since Bellamy does not assert interference with his right to vote, right to travel, or with any right cognizable under the Thirteenth Amendment, he has not stated a claim for which relief may be granted by a federal court when he seeks redress for a purely private act of discrimination based on his affiliation with a “patriotic organization.”

      . The applicable part of § 1985(3) reads as follows:
      If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any . person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . .; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

      . Title 18 U.S.C. § 241 is the closest remaining criminal analogue of 42 U.S.C. § 1985(3). Griffin v. Breckenridge, 403 U.S. at 98, 91 S.Ct. 1790.

      . Unlike the fourteenth amendment, the thirteenth amendment is phrased positively and not as simply a prohibition against the states.

      . Nelson Radio, supra, is cited with approval in Greenville Publishing Co., Inc. v. Daily Reflector, Inc. (Craven, J.), 496 F.2d 391, 399 (4 Cir. 1974).

      . U.S.Const. amend. I.

      . U.S.Const. amend. XIV.