author: SETH, Circuit Judge.

text:
    William James ROGERS, Appellee, v. Walter ROTH, Appellant.
    No. 72-1549.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 27, 1973.
    Decided May 8, 1973.

      Leonard 0. Thomas, Kansas City, Kan. (David K. Fromme of Weeks, Thomas, Lysaught, Bingham & Johnston, Kansas City, Kan., and Harold E. Doherty, Topeka, Kan., with him on the brief), for appellant.
    Raymond L. Dahlberg, Great Bend, Kan. (H. Lee-Turner, Great Bend, Kan., with him on the brief), for appellee.
    Before SETH, Circuit Judge, DURFEE , Judge, and McWILLIAMS, Circuit Judge.

       Judge, United States Court of Claims, sitting by designation.

   SETH, Circuit Judge.

This is an appeal in a diversity negligence action which arose in Kansas from a car-motorcycle collision. The case was tried to a jury which found for the plaintiff. The issues on appeal concern basically the use of a discovery deposition of a non-party; changes in the deposition made by the deponent after the material-was transcribed; and the motivation for the changes. By reason of the fact that basic issues were left unresolved during the course of trial, we must reverse and remand for a new trial.

Much of the argument on appeal concerns the version as to how the accident occurred as given by a young man, then seventeen years old, who was riding on the motorcycle with the plaintiff when it was struck by defendant’s car. The principal issue relates to the manner in which some asserted changes in this person’s story were used by the plaintiff’s attorney before the jury.

Jeff Jensen, who is not a party to the suit, was riding behind the plaintiff who was operating the motorcycle at the time of the collision. He was not injured in the accident, and he described what took place to several people at the-scene immediately after the collision, and to others some short time later. He also signed a written statement for the insurance adjusters a day or two after the accident. Some two years later the plaintiff took Jeff Jensen’s discovery deposition. Signing of the deposition by the witness was not waived. The reporter transcribed the questions and answers, and submitted them to counsel for both sides. The defendant’s attorney, Mr. Patterson, wrote a letter dated October 1, 1969, to Jeff Jensen’s father in which he indicated that some of the statements made by Jeff as they appeared in the transcription were not consistent with the statement the witness had theretofore given to the insurance adjusters or others. Specific references were made in the letter or attached portions of the transcription. Jeff Jensen thereafter appeared before the reporter who had taken the deposition and made some of the changes referred to in the above letter of October 1, 1969. The witness was not sent, and did not see, a copy of the letter, but he did have copies of some pages from the transcription of the deposition which apparently accompanied the letter, and whereon portions were underlined. The deposition was so changed, sworn to, and signed by the witness. Thereafter the plaintiff with the consent of the court again took or resumed, Jensen’s deposition. During this deposition, the witness was examined at length as to the reasons for the changes in his answers.

Some two years elapsed after the depositions above referred to until trial was held. The record shows that Jeff Jensen was present in the court room during the course of the trial, but neither side called him to testify. The defendant testified as to what Jeff Jensen had told him and others about the accident shortly after its occurrence. It was during the course of the cross-examination of this witness, and an expert witness, that the incidents took place, and rulings were made,, which defendant-appellant asserts as grounds for reversal.

During the course of the trial, but in chambers, the depositions were discussed by the attorneys, as were the changes, and the letter from defendant’s attorney to the father of Jeff Jensen. These conferences were at the close of plaintiff’s case and there suggestions were advanced by plaintiff’s attorney that defendant’s attorney had acted improperly in reference to the changes in the deposition of Jensen. It was pointed out that the father of the witness was a partner in an insurance agency with the defendant, and the policy covering defendant had been written by the agency.

The method used in making the changes as related to Rule 30(e), Fed.R.Civ.P., the propriety of the changes, and the propriety of the actions by defendant’s attorney in suggesting changes in the deposition were not resolved in the face of these challenges by plaintiff’s attorney. These problems were also not resolved during the course of the trial, the facts were not developed, and no inquiry was then made into the changes nor why they were made, nor the position of defendant’s attorney in relation thereto.

As indicated above, the problems came to the fore during the cross-examination of the defendant who testified as to statements made at the scene by Jeff Jensen. Also the issues arose during the cross-examination of defendant’s expert witness Stackley who sought to reconstruct the accident.

Some of the cross-examination of defendant is as follows:

“Q. (By Mr. Turner) I am talking about, you learned about Mr. Patterson’s conversations with Don Jensen about the necessity to get Jeff Jensen to change his story, didn’t you ?
“Mr. Patterson: Object to that, assuming facts not in evidence, as prejudicial.
“Mr. Turner: I am entitled to attack the credibility of Jeff Jensen, Your Honor, under the Rule.
“The Court: Well, if there is any basis for your making that statement, of course you are.
“Mr. Patterson: I might ask that it be stricken and the Jury instructed to disregard it unless and until there is some evidence of such an accusation.
“The Court: Well, let’s find out what the witness says.
“The Witness: What was the question?
“Q. (By Mr. Turner) Let me do it this way: You know that the first time Jeff Jensen testified was by deposition on August 4, 1969, Great Bend, Kansas? A. That was the same day I did. Yes.
“Q. Yes? A. Yes; that is correct.
“Q. And then you learned later that Mr. Patterson had contacted his father with a suggested list of changes that Jeff Jensen should make in his testimony; didn’t you, sir ?
“Mr. Patterson: To which I object on the ground there is no evidence to that effect.
“Mr. Turner: There will be.
“Mr. Patterson: It is improper cross-examination.
“The Court: We’ll see what his answer is. Overruled.
“The Witness: I knew that Jeff had made another deposition.
“Q. (By Mr. Turner) Well, so we are entirely clear about it. You and Don Jensen had talked extensively about this matter; hadn’t you? A. We haven’t really, no.
“Q. All right. Didn’t Don Jensen tell you that Mr. Patterson had written him a letter suggesting that the changes that Jeff Jensen should make in his sworn testimony given on August 4, 1969, because his testimony hurt you?
“Mr. Patterson: To which we object on the ground there is no — object to the form of the question. It is improper cross-examination, outside the scope of the direct examination and does not serve to impeach the declarant or the witness. It is injected purely for prejudicial purposes.
“The Court: Overruled.
“TheWitness: Yes.”

There were subsequent similar questions and objections during the cross-examination of the defendant. The court in response to one objection stated that the persons concerned with the letter and the deposition were in the court room and could be cross-examined.

During cross-examination of defendant’s expert Stackley, who reconstructed the accident, further statements and references to the changes in the deposition were made by plaintiff’s attorney, and his personal view was expressed as to the reasons for the changes. In reference to the attorney for defendant providing portions of the deposition for the use of the expert, the following cross-examination took place:

“Q. Did he point out the portions of the Jeff Jensen’s testimony that he gave before he received instructions from his father—
“Mr. Patterson: Again to which we object on the ground that Counsel assumes that this in fact occurred. I think it is prejudicial. I think I would like to have a hearing before the Court.
“The Court: I have read these depositions, Mr. Patterson. That is what happened.
“Mr. Patterson: Well—
“The Court: You are overruled.
“Q. (By Mr. Turner) Okay, sir. Were you furnished that portion of Jeffery Jensen’s deposition where he testified before he was instructed by his father as to how he should change his sworn testimony as a result of a letter he received from Mr. Patterson ? A. I read both of his—
“Mr. Patterson: I would like to object, Your Honor, for the record.
“The Court: Well, you object for the record, but you are overruled.
“The Witness: I read both of them, sir.
“Q. (By Mr. Turner) Okay. My questions are going to be directed to his testimony under oath before he was instructed to start changing his testimony. Now, sir, first of all—
“Mr. Patterson: Your Honor, I wonder if I can have a continuing objection.
“The Court: You may have a continuing objection. You will be overruled.
“Go ahead.”

This was followed by a series of questions by plaintiff’s attorney wherein he would read questions from a deposition of Jeff Jensen, and ask the expert who was on the stand to read the answers. These “questions” were extensive, and much of the deposition, which was apparently in the form before it was changed, was so read to the jury. These portions had nothing, to do with matters which concerned the expert witness nor his calculations. He had placed no reliance thereon. This was done over defendant’s objections. There was objection made also that the witness was being asked to answer from portions of the deposition which had been later changed by the witness. To this the court said: “This was his recorded testimony, Mr. Patterson. You can show that he changed it if you wish.” During the cross-examination of the expert, virtually the entire deposition of Jeff Jensen was so read to the jury, and its use went far beyond impeachment of the declarant Jensen which it purported to be. This also, as above indicated, was by using the deposition before it was changed.

Thus during the course of the trial there were repeated references by plaintiff’s attorney as to changes in the story of Jeff Jensen; to requests made by defendant’s attorney to Jeff’s father that the deposition be changed, and references that the attorney for defendant and the witness had acted improperly. All this was before the jury, and the matter was never determined by the court during the trial. The trial concluded with continued references in the closing arguments to the jury to the actions by defendant’s attorney in reference to the deposition of Jeff Jensen as being improper and an attorney of defendant was referred to as an “evidence manipulator.”

The trial was concluded, the jury retired to deliberate, and the judge then questioned under oath Donald W. Jensen and Jeff Jensen. The deposition in its original form with the changes interlined, the written statement of Jeff Jensen given to the adjuster, the letter to Donald Jensen from defendant’s attorney about the deposition with indications of portions of the deposition, and the second deposition were admitted as the court’s exhibits.

Thereafter the jury returned with its verdict for plaintiff.

Defendant made a motion for a new trial which asserted in part the improper questioning by plaintiff’s attorney in using the uncorrected deposition, in its use beyond impeachment, and in the suggestions made to the jury of improper conduct by defendant’s attorney. The motion was overruled by the court in an order which recited that the circumstances disclosed “. . . a concerted effort on the part of a witness’s father and the attorney employed by defendant’s insurer to tamper with a witness and obtain substantial changes in his testimony.” The court further said: “The Court believes that to permit the suppression of the glaring manipulations of the testimony offered by the witness Jeff Jensen in depositions which the witness Stackley says he used'in forming his opinions on how the accident happened, in reconstructing it, would have been prejudicial to the plaintiff.” Westinghouse Electric Corp. v. Wray Equipment Corp., 286 F.2d 491 (1st Cir.).

It is apparent from the above description and from the quotations that the issue as to the validity of the changes made by Jeff Jensen in his deposition, whether Rule 30 had been complied with, whether there was impropriety in suggesting the changes on the part of the father of the witness or on the part of the attorney for the defendant became a significant part of the trial. But the uncertainty continued throughout the trial, and was misused by plaintiff’s attorney. The court in a post-trial hearing heard some of the witnesses, and reached the conclusion expressed in the order denying the motion for a new trial.

Jeff Jensen never appeared as a witness before the jury, but one version of his testimony came in from the use of the unchanged deposition as read by plaintiff’s attorney through the expert witness Stackley. The deposition as changed by Jeff Jensen before he signed it was not before the jury, nor was the second or continuation deposition taken some months later. We find no objection in the record by plaintiff’s attorney as to the manner in which the deposition was changed by the witness several months after it was transcribed nor a motion to suppress the changes. He did, however, ask the court if he could again take the witness’s deposition, and this was done.

If a witness gives a deposition and signature is not waived, he may later make changes under Rule 30(e), and give reasons. This is contemplated and on occasion is obviously necessary. The references during the trial before the jury to the original version as being under oath were misleading and prejudicial since only portions of the answers were used. There was but one deposition, this was the original transcription with the interlined changes plus the continuation. Usiak v. New York Tank Bridge Co., 299 F.2d 808 (2d Cir.), refers only to statements by parties and contains no other holding. Rule 32(a)(4), Fed.R.Civ.P., requires the use of other portions when only part is used to present a fair picture. Westinghouse Electric Corp. v. Wray Equipment Corp., 286 F.2d 491 (1st Cir.). This rule should be applied especially when the witness has under the rules entered changes to his answer on the deposition. The party seeking to use the deposition has the burden of conforming with the rule.

The record indicates that during one of the in chambers conferences after the plaintiff had rested, the defendant’s attorney told the court that he was not going to call Jeff Jensen as a witness, but would call others who had heard his statements made shortly after the accident. The court questioned defendant’s counsel and stated that the court understood that the testimony of others would be offered under proposed Federal Rule 806. Defendant’s attorney asserted there was no response from plaintiff’s attorney, and we must assume there was consent that the matter would be so handled. The court indicated that the credibility of the declarant was subject to attack as if he had taken the stand. It was apparently under this theory that the trial court permitted what purportedly was the use as impeachment by inconsistent statement of the deposition through the expert witness. This we must hold was error as to so much of the deposition as was properly used to show a subsequent inconsistent statement, because the complete answer of the declarant in the deposition was not used, but only part. This was incomplete and misleading, and as indicated the issue was never resolved at trial. It was also error because “the deposition” was not used only to show an inconsistent statement, but was read to the jury as if it had been fully admitted in evidence. This was contrary to Rule 32.

The jury should have had properly before it sufficient facts to enable it to decide whether the subsequent statements of the declarant did in fact contradict the declarations of the eyewitness admitted as an exception to the hearsay rule as above recited. The contradiction theory was advanced by the plaintiff and he had the burden. As it turned out, the question whether the declarant was telling what he believed to be the truth in the deposition, or what someone else had influenced him to state as the truth as shown by the changes, the reason for the changes, and the circumstances surrounding them was never presented properly to the jury. All the jury had was the fact of change as to some of the answers, and the reasons expressed by counsel. The issue was raised by the plaintiff but was never put in a form suitable for proper consideration by the jury as should have been done. The motion of defendant for mistrial together with the objections made preserved these points. See Calhoun v. United States, 384 F.2d 180 (5th Cir.). Much of the briefs of the parties and the authorities argued relate to the manner in which depositions may be changed, but as indicated we do not reach this question.

The trial judge, in the statement quoted above following a reference by plaintiff’s attorney as to the changes instructed by the witness’s father, said: “The Court: I have read these depositions, Mr. Patterson. This is what happened.” The court so expressed to the jury its conclusion that the witness’s father had instructed him to make changes in the deposition. This position of the court was expressly based on the depositions which were not before the jury. The jury was again precluded from properly passing on the truth of the statements of Jeff Jensen, and was left to speculate or rely solely on the court’s statement of its conclusion, and the attorney’s views. Straub v. Reading Co., 220 F.2d 177 (3d Cir.).

As indicated above, there were repeated references to the impropriety of defendant’s counsel in reference to the depositions. This culminated in the description of defendant’s attorney as an “evidence manipulator” by plaintiff’s attorney in his closing argument. This issue of the propriety of the actions of defendant’s attorney is somewhat different from the truth of the depositions or changes considered above. This issue was also improperly brought forward from time to time during the trial, and it also was not resolved or otherwise handled by the court to enable the jury to put it in its proper place. The issue was an obviously inflammatory and prejudicial one, and was so used by the plaintiff. It was and is in reality unrelated to the merits of the case. The defendant should not have been required to take the risk or certainty of a penalty from the jury for wrongdoing by his attorney (if there was such, which we, of course, do not decide) in connection with a deposition taken some two years before. This was a matter for the court to resolve, and to separate from the issues properly before the jury so that the defendant was not tried with the attorney on the basis of the subjective views of the attorneys. This matter loomed large unfortunately in the presentation of the facts.

The combination of these circumstances requires us to reverse, and to remand for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: KENNEDY, District Judge.

license: Public Domain

text:
    WESTWOOD CHEMICAL, INC., Plaintiff-Appellant, v. JOHNS-MANVILLE FIBER GLASS, INC., Defendant-Appellee. WESTWOOD CHEMICAL, INC., Plaintiff-Appellant, v. CERTAIN-TEED PRODUCTS CORPORATION, Defendant-Appellee. WESTWOOD CHEMICAL, INC., Plaintiff-Appellant, v. FERRO CORPORATION, Defendant-Appellee.
    Nos. 72-1743, 72-1744, 72-1803.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 30, 1973.
    Decided May 4, 1973.

      Marshall I. Nurenberg, Cleveland, Ohio, Theodore A. TeGrotenhuis, Olmsted Falls, Ohio, C. D. Lambros, Cleveland, Ohio, on brief; Paul Weick, Akron, Ohio, Walter J. Blenko, Pittsburgh, Pa., of counsel, for plaintiff-appellant.
    C. Willard Hayes, Washington, D. C., and John Lansdale, Jr., Cleveland, Ohio, for defendants-appellees.
    Robert W. Poore, Barry L. Springel, Jones, Day, Cockley & Reavis, Cleveland, Ohio, for Johns-Manville, Fiber Glass, Inc.; Robert M. Krone, Denver, Colo., C. Willard Hayes, Cushman, Darby & Cushman, Washington, D. C., Warren Daane, Cleveland, Ohio, William Webb, Pittsburgh, Pa., of counsel.
    John Lansdale, Jr., James M. Phemister, Cleveland, Ohio, on the brief for Certain-Teed Products Corp. and Ferro Corporation; Squire, Sanders & Dempsey, Cleveland, Ohio, of counsel.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and KENNEDY, District Judge.

       The Honorable Cornelia G. Kennedy, United States District Judge, Eastern District of Michigan, sitting by designation.

   KENNEDY, District Judge.

These consolidated appeals arise out of protracted patent litigation beginning in 1962. In two cases (Nos. 72-1744 and 72-1803), plaintiff-appellant West-wood Chemical, Inc. seeks review of the refusal of the District Court to set aside consent judgments dismissing patent infringement actions against defendantsappellees Certain-Teed Products Corporation and Ferro Corporation. In the third case (No. 72-1743), Westwood appeals from the District Court’s entry of a judgment of dismissal of its patent infringement action against defendant-appellee Johns-Manville Fiber Glass, Inc.

An understanding of the issues raised by these appeals requires a brief review of the history of these cases. Over a period of several years, Westwood brought multiple patent actions alleging infringement of its patents Nos. 2,742,378 and 2,841,566. Both patents are in the nature of process and product patents relating to “treating fillers, pigments and fibers with unsaturated organo-silanes for use in reinforcing polyester resin bodies.” Westwood Chemical, Inc. v. Owens-Corning Fiberglas Corp., 445 F.2d 911, 912 (6th Cir. 1971), cert. denied, 405 U.S. 917, 92 S.Ct. 941, 30 L.Ed.2d 786 (1972). In each instance Westwood generally alleged infringement of the patents without specifying particular claims, although it appears that the two patents together comprised 42 claims. The earliest such action was filed against Ferro on September 12, 1962. On June 10, 1963, a second action was brought against Owens-Corning Fiberglas Corporation and Johns-Man-ville. Shortly thereafter, the claims against Owens-Corning and Johns-Manville were severed for trial by the District Court. On October 25, 1967, a third suit was begun against Certain-Teed. Three additional actions were later brought against other corporations, none of which is involved on these appeals.

In 1967, Westwood moved to have the actions against Ferro, Owens-Corning and Johns-Manville consolidated for trial, on the basis that the questions of law and fact raised by each of the defendants as to both non-infringement and validity were identical. Early in 1968, Westwood filed further motions to consolidate all seven actions. These motions were opposed by the defendants, four of whom were direct competitors, because they feared that consolidation would require disclosure to one another of trade secrets relating to manufacturing processes. Ferro pointed out, furthermore, that Ferro, Owens-Corning and Johns-Manville had been cooperating in their preparations for their defense with the understanding among counsel that the Owens-Corning case would be tried first, although in the ordinary course of events the suit against Ferro, which was the oldest, would have been tried first, and that the parties had relied upon that understanding. Ferro also argued that consolidation would unreasonably delay trial of the then approximately six-year-old case against it.

With the proceedings in this posture, Westwood, Ferro, Johns-Manville and later Certain-Teed entered into a stipulation providing in relevant part:

1. The case of Westwood Chemical, Inc. v. Owens-Corning Fiberglas Corporation, Civil Action No. C63-460, as severed, shall be the first case of the above enumerated cases to be tried.
2. The final decision (including appeals) as to the validity of the United States Patents Numbers 2,742,378 and 2,841,566, in the case of Westwood Chemical, Inc. v. Owens-Corning Fiberglas Corporation, Civil Action Number C63460, as severed, shall be final and binding upon all parties hereto, the same as if each defendant were a party to said case.

Plaintiff then withdrew its motions to consolidate.

At the trial of the Owens-Corning case, only certain of the claims under the patents were placed in issue by plaintiff. This election of claims was made subsequent to the filing of the stipulation. The District Court held both patents to be totally invalid for obviousness to one having ordinary skill in the art. On appeal, this Court modified the judgment of the District Court by restricting the determination of invalidity to the claims actually in issue at trial, since Owens-Corning had not sought declaratory relief as to the remaining claims. Owens-Corning, supra, 445 F.2d at 913.

Following denial by the Supreme Court of Westwood’s petition for certiorari, 405 U.S. at 917, 92 S.Ct. 941, the attorneys for appellees Ferro and Certain-Teed sent proposed forms of judgments of dismissal of those cases to Westwood’s trial counsel, who, while still counsel of record, had been relieved of active management of the Westwood cases. He endorsed the judgments with his approval and forwarded them to T. A. TeGrotenhuis, the patentee and an officer of Westwood, who also was (and is still) an attorney for the corporation, requesting that he review them. Mr. TeGrotenhuis, in turn, forwarded the judgments to counsel for Ferro and Certain-Teed, and they were entered by the District Court on March 20, 1972. These judgments, entered by consent of the parties, referred to the parties’ stipulation, by which “it was agreed that the final decision (including appeals) as to the validity of the United States Patents Nos. 2,742,378 and 2,841,556, in the case of Westwood Chemical, Inc. v. Owens-Corning Fiberglas Corporation, should be final and binding upon all the parties hereto, the same as if the defendant were a party to said case.”

Thereafter, Westwood’s present counsel filed motions to set aside these consent judgments. Westwood argued that the judgments should be limited to dismissal of those claims under the patents whose validity had actually been adjudicated in the Owens-Corning case, and that as to the remaining claims the actions against Ferro and Certain-Teed should be reinstated. The District Court declined to reinstate any portion of the actions or to modify the previous judgments, and it is from this ruling of the District Court that Westwood appeals in two of the cases before us for review (Nos. 72-1744 and 72-1803).

In Johns-Manville (No. 72-1743), Westwood appeals from an order and judgment of the District Court, entered June 7, 1972, upon motion of the defendant, dismissing the complaint. In dismissing the suit against Johns-Manville, the District Court relied upon the stipulation, supra, which was the basis for the consent dismissals in Ferro and Certain-Teed.

As already indicated, the parties stipulated that as to the validity of the patents in suit, the final decision in the Owens-Corning case would be final and binding upon all parties, the same as if each defendant were a party to that case. Insofar as Owens-Corning is concerned, the decision in its case is res judicata as to all of the claims under the two patents belonging to Westwood, not simply those actually litigated and found to be invalid, since Westwood cannot litigate such claims piecemeal. Appellees take the position that the same prohibition against piecemeal litigation must be applied in the actions brought against them in order to give effect to the language in the stipulation “the same as if each defendant were a party to said case.” Westwood argues, on the other hand, that the stipulation is limited to the validity of the patent claims actually asserted against Owens-Corning, that it is, therefore, entitled to assert against appellees infringement of the balance of the claims under the patents, and that dismissal should accordingly be limited to the claims actually declared invalid in Owens-Corning.

No evidence has been offered as to the intent of the parties in entering into the stipulation, although numerous arguments have been made as to what must have been intended. In his order in the Certain-Teed case denying plaintiff’s motion to set aside the consent judgment of dismissal, the District Judge, who was familiar with the entire litigation, found the stipulation to be “quite direct and uncomplicated.” He accorded to the stipulation its literal meaning treating Certain-Teed as if it were a defendant in Owens-Corning. The District Judge found support for this construction of the stipulation in the conduct of West-wood’s trial counsel, who, “[bjased upon his clear understanding of the case,” had approved the judgment dismissing the complaint. Counsel had signed the stipulation, and was fully familiar with the facts and issues involved in the cases since he had tried, and handled the appeal of, the Owens-Corning case.

The District Court’s construction of the stipulation is a sound one. If West-wood’s interpretation were correct, there would have been no reason to use the language “the same as if each defendant were a party to said case.” Perhaps the parties did not and, indeed, could not anticipate all of the circumstances which might arise (and in fact did arise) subsequent to the signing of the stipulation. They agreed, however, to confer a certain status upon all defendants signing the stipulation with the intention of achieving finality in the Owens-Corning trial. If it was Westwood’s intent to reserve certain patent claims to assert against the remaining defendants, it should have said so. Clearly, none of the parties contemplated having the issue of validity tried piecemeal, which is the interpretation urged by Westwood.

The orders and judgment of the District Court are affirmed.

      . Quoting from the judgments entered by the District Court. The essential wording of the two judgments is the same.


author: BRIGHT, Circuit Judge.

text:
    John GIERINGER, Appellant, v. CENTER SCHOOL DISTRICT NO. 58 et al., Appellees.
    No. 72-1535.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1973.
    Decided April 20, 1973.
    Rehearing Denied May 23, 1973.
    Irving Achtenberg, Kansas City, Mo., for appellant.
    R. Lawrence Ward, Kansas City, Mo., for appellees.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Sitting by designation.

   BRIGHT, Circuit Judge.

John Gieringer, in this civil rights action under 42 U.S.C. § 1983, seeks reinstatement to his teaching position in the appellee-school district and compensatory and punitive damages against members of the appellee-school board in their official and private capacities. The district court denied any relief, finding that Gieringer had not been dismissed for a constitutionally impermissible reason nor, since he was nontenured, denied procedural due process.

On this appeal, Gieringer asserts that he was dismissed for the exercise of his right of free speech and that the findings of the trial court in support of its conclusion to the contrary were clearly erroneous. He further argues that the failure to provide him with notice of cause and a hearing on his dismissal denied him due process and equal protection guaranteed by the Fourteenth Amendment. Finally, he contends that the court erred in admitting a letter and certain testimony which were hearsay. We reverse the judgment, disposing of this case on First Amendment grounds.

The school board employed Gieringer for the 1969-1970 school year as an elementary physical education teacher assigned to classes in two schools in the district. During the 10 years prior to this assignment, Gieringer had served as a guidance counselor in the same school district. Over the latter portion of this 10-year period, friction had developed between Gieringer and his superiors as a result of several incidents. The school superintendent concluded from these incidents that Gieringer’s attitude toward his superiors and fellow employees was insubordinate, rude, and abrasive. For these reasons, in the spring of 1969, the superintendent recommended that Gieringer’s contract not be renewed. The school board rejected the recommendation but, as we have noted, transferred Gieringer to a different position at other schools in the district.

During the next school year, Gieringer appears to have gotten along well professionally with his superiors, receiving satisfactory or better ratings from the principals at both new schools. The sole exception to this apparent rapport arose out of an impromptu report delivered by Gieringer at a meeting of the Center Community Teachers Association in October, 1969. The subject of this report related to the school district’s financial ability to raise teachers’ salaries.

The district court related the following background to this incident:

The “out-of-class speech” contention arises out of a report plaintiff made at a meeting of the Center Community Teachers Association. The background of the incident is that a tract of federally owned land is located in the School District. Under Section 521 of Title 40, U.S.C.A., the agency occupying these premises was obliged to pay an amount equal to the local real estate taxes to the local authority. This Act expired in 1968. G.S.A., the Government agency, had withheld payments, however, for the years 1966-68, inclusive, on the ground that the assessed valuation was too high. The county brought suit to collect for these years. The law providing for such payments was not reenacted upon its expiration, and, although bills were introduced for that purpose, the School Board was informed throughout 1969 by the Congressman representing the district that passage appeared very doubtful.
Meanwhile, the teachers were seeking higher salaries for the 1969-70 school year. The Board submitted a larger tax levy to the voters to increase salaries,. but it was defeated. In the fall of 1969 the County Counselor’s office announced a settlement of the suit with G.S.A., which would result in a lump sum payment to the Board for the past three years of payments which had been withheld. The teachers immediately asked for a salary increase, and the Board refused on the grounds that this was a “one-shot” payment, and there would be no way to finance the increased salaries in the following years.
The plaintiff was delegated by an officer of the C.C.T.A. to investigate this contention of the Board and report to the Association.

The basis for Gieringer’s report to the Teachers Association lay in his conversations with the county attorney regarding the settlement agreement, Gieringer’s impression was that even if the necessary enabling legislation failed, an alternative source of funds might be found. The essence of the report, as preserved in the Association’s minutes, was that “John Gerringer [sic] reported that due to a court case over disputed property that a substantial amount of money should come into the district this year and in the next few years.” Based on Gieringer’s report, the Teachers Association resolved to study and investigate the matter of teachers’ salaries further.

The school superintendent, upon receiving word of Gieringer’s report from a teacher who had attended the meeting, concluded that the report had been deliberately designed to undermine the credibility of the school administration in the eyes of the teachers. The incident was considered evidence that the history of difficulties between Gieringer and the administration would continue. The superintendent, therefore, in March, 1970, renewed his recommendation that Gieringer’s contract not be renewed for the following school year. The school board this time voted unanimously to approve the superintendent’s recommendation.

In support of this action, the appellees argue that Gieringer’s dismissal rested upon the entire history of his inability to get along with his superiors rather than simply upon the report which he had made to the Teachers Association. The record serves to belie this argument. The school board’s transfer of Gieringer in 1969 to different schools and a different position eliminated earlier frictions and cleared the air. Thereafter, the only criticism of Gieringer’s performance as a teacher emanated from his report given to the Teachers Association. It is clear from the record that this report served as a catalyst and that without it no discharge would have occurred.

Thus, the precise question before us narrows to whether the school board dismissed Gieringer for the exercise of his First Amendment right of free speech or, as the administration urges, because his report was in fact a deliberate misrepresentation or otherwise so insubordinate or provocative as to justify his dismissal. The district court deemed the report to be constitutionally unprotected :

The plaintiff was not simply criticizing Board practices or policies, but was accusing them of deliberately withholding or misrepresenting important and material facts. Such a report would naturally cause serious dissension among the teachers, and similarly cause a lack of confidence in the Board by all taxpayers in the district. The facts, as represented by plaintiff, were completely untrue, as the most cursory investigation would show. The statements were irresponsible and obviously made to create consternation and dissension. The constitutional guaranty of free speech does not apply to statements such as these, and the Court finds this point against the plaintiff.

The controlling law is to be found in the Supreme Court’s decision in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The teacher in Pickering, in a letter to a newspaper, publicly criticized the school board’s allocation of funds between educational and athletic programs and the way in which the real reasons for seeking additional tax revenues had been glossed over by the board and superintendent. The board dismissed the teacher on the ground that his letter was deliberately false and misleading and therefore an unjustifiable attack upon the board and the school administration, disruptive of the operations of the school district. The dismissal was sustained by the state courts.

In reversing, the Supreme Court held (1) that a teacher retains the right as a citizen to comment on matters of public concern; (2) that to the degree such commentary is substantially accurate, it provides no grounds for dismissal absent a showing of disruption of the teacher’s classroom duties or the regular operation of the school, and (3) that, even if the commentary is inaccurate, a showing of disruption is still required unless it can be proved that the statements in question were knowingly or recklessly made. The Court determined that Pickering’s letter contained inaccuracies but that these were not knowing or reckless and that no disruptive effect had been shown.

Here, the settlement agreement was a matter of public concern. Nothing in the evidence suggests that Gieringer’s report in any way interfered with his teaching. It does not appear to have jeopardized his relationship with fellow teachers with whom he had to work closely. It did not result in disruption of the district’s operations. While the report evidenced optimism that the agreement might provide enough money to support a salary increase for teachers, it was couched in possibilities. There is no evidence that Gieringer deliberately sought to misrepresent his conversations with the county attorney in order to embarrass the administration. Gieringer’s inference, from the background circumstances reported to him, that the school board would continue to receive federal monies was at least as permissible as the pessimistic pronouncements by the administration that any amount received from the federal government would represent only a “one shot” payment.

In short, none of the indicia recounted in Pickering, which would take expression out of the sphere of protected activity, appear in this case. We, therefore, conclude that Gieringer’s report was protected within the constitutional standards delineated in Pickering and hold that Gieringer was dismissed for a constitutionally impermissible reason.

The judgment of the district court is reversed. The case is remanded for the entry of judgment reinstating Gieringer and awarding him loss of backpay, subject to mitigation by Gieringer’s earnings since his dismissal and without any award for punitive damages. Cooley v. Board of Educ., 453 F.2d 282, 287 (8th Cir. 1972); Ramsey v. Hopkins, 447 F.2d 128 (5th Cir. 1971).

      . The district court opinion has not been reported.

      . Even assuming' Gieringer’s report may have been only partially a factor in his dismissal, if that report was protected activity, then the dismissal was still constitutionally impermissible. Cook County Teachers Union, Local 3600, AFT v. Byrd, 456 F.2d 882, 888 (7th Cir.), cert. denied, 409 U.S. 848, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Fluker v. Alabama State Bd. of Educ., 441 F.2d 201, 230 (5th Cir. 1971).

      . Congress, in fact, did authorize continued in-lieu-of-tax payments for 1969 and 1970 pursuant to 40 U.S.C. § 523. The legislation, however, was repealed effective January 1, 1971. Pub.L. No. 91-466, § 2 (Oct. 17, 1970).


author: PER CURIAM.

text:
    The WASHINGTON POST COMPANY et al. v. Richard G. KLEINDIENST, Acting Attorney General of the United States, et al., Appellants.
    No. 72-1362.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 30, 1972.
    Decided Sept. 6, 1972.
    Leonard Schaitman, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellees. John A. Terry, Joseph M. Hannon, Michael A. Katz, and Robert D. Zsalman, U. S. Attys., also entered appearances for appellants.
    Joseph A. Califano, Jr., Washington, D. C., with whom Charles H. Wilson, Jr. and Richard M. Cooper, Washington, D. C., were on the brief, for appellees.
    Melvin L. Wulf, New York City, and Hope Eastman, Washington, D. C., filed a brief on behalf of Tom Wicker and others as amici curiae urging affirmance.
    Before McGOWAN, LEVENTHAL and ROBINSON, Circuit Judges.
   ORDER

PER CURIAM.

This case came on for hearing on an appeal from a ruling by the District Court, reflected in a memorandum opinion dated April 9, 1972, 357 F.Supp. 770, that the policy of the Federal Bureau of Prisons in denying all requests by the press to interview designated prisoners violated the First Amendment. The Court directed the Bureau to modify its rules within 30 days to permit such interviews under terms and conditions appropriately reflective of administrative and disciplinary considerations. That decision is presently subject to a stay by the Supreme Court, issued May 13, 1972, pending appeal in this court.

At the oral argument, the Government pressed upon us a supervening decision by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, decided June 29, 1972, as representing a significant limitation by the Supreme Court of the reach of the First Amendment in relation both to the precise issue immediately involved in the three cases then decided, and to the general area of press guarantees. Branzburg, unlike the case before us, compelled revelation by reporters to grand juries of information gathered by them, but the First Amendment claim rested heavily upon the assertion that access to information would be restricted if such compulsion was exerted. One of the cases heard by the Supreme Court with Branzburg and reversed by it, Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), was cited by the District Court as relevant to the scope of press access.

Since the case before us deals with the scope of First Amendment rights to access, Branzburg supplies a new element to be considered in the decisional process' which was not in existence at the time the record was made and the conflicting claims resolved in the District Court. It seems obvious that considerations of sound judicial administration suggest that any record for future appellate consideration be made in awareness of it, if that is feasible under the circumstances, as it is here.

Accordingly, we have concluded, while retaining jurisdiction of this appeal, to remand the record for such further consideration as the District Court may wish to give the case in the light of Branzburg and, in any event, for specific findings (which may follow upon further evidentiary proceedings) with respect to the following:

1. The extent to which the accurate and effective reporting of news has a critical dependence upon the opportunity for private Dersonal interviews.
2. The extent to which the so-called, “big wheel” justification has any tangible footing in a significantly wide spectrum of experience in prison administration.
3. The factual foundations for any other asserted justifications for blanket prohibition of private personal interviews.
4. Whether there may be a valid basis for a ban, in the interest of avoiding impairment of good order, as to a particular prisoner or prisoners, even in the absence of a prior history of unruliness or disruptiveness.
5. Whether it is unfeasible to pursue a flexible approach to the allowance of private personal interviews, with appropriate scope for the judgment of the responsible prison officials and their consideration of administrative, convenience or necessity.
6. Any other matters which, in the view of the District Court, by reference to Branzburg or otherwise, would further refine and illuminate the competing claims and assertions made by the parties so that ultimate resolution of the news access right under the First Amendment claimed in this instance may be as informed as possible.

By reason of the foregoing, it is hereby

Ordered that the record in this case is remanded to the District Court for the purposes hereinabove stated and, upon the conclusion of proceedings held hereunder, shall as supplemented be returned to this court for further consideration of the pending appeal.


author: TAMM, Circuit Judge: WILKEY, Circuit Judge,

text:
    “AMERICANS UNITED” INC., et al., Appellants, v. Johnnie M. WALTERS, Commissioner of Internal Revenue.
    No. 71-1299.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 11, 1972.
    Decided Jan. 11, 1973.
    Certiorari Granted June 4, 1973.
    See 93 S.Ct. 2752.

      Mr. Alan Morrison, with whom Mr. Franklin C. Salisbury, Washington, D. C., was on the brief, for appellants.
    Mr. Leonard J. Henzke, Jr., Atty., Tax Div., Dept. of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and Grant W. Wiprud, Atty., Tax Div., Dept. of Justice, were on the brief, for appellee.
    Before FAHY, Senior Circuit Judge, and TAMM and WILKEY, Circuit Judges.
   TAMM, Circuit Judge:

This case comes to us on appeal from an order in the district court denying appellants’ (plaintiffs below) petition to convene a three-judge district court pursuant to the provisions of 28 U.S.C. § 2282 (1970), and granting appellee’s motion to dismiss. For the reasons stated at length below we affirm the action of the district court as it pertained to the individual appellants involved, but as to the corporate appellant reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Appellant Americans United, incorporated as “Protestants and Other Americans for Separation of Church and State,” is organized under the laws of the District of Columbia and is a nonprofit educational corporation. On July 3, 1950, the Commissioner of Internal Revenue issued a ruling that Americans United qualified as tax exempt under § 101(6) of the Internal Revenue Code of 1939, the predecessor to § 501(e)(3) of the 1954 Code. Consequently, for a period of nearly twenty years not only was Americans United free from taxation upon its income, but also contributors to the corporation were entitled to the deductions provided under § 170 of the 1954 Code (§ 23(q) of the 1939 Code). On April 25, 1969, a letter ruling from the Service revoked the 1950 ruling, holding that Americans United had violated §§ 170(c)(2)(D) and 501(c)(3) of the Code by devoting a substantial part of its activities to attempts to influence legislation. More particularly, the letter ruling stated that although part of Americans United’s activities could be classified as “educational” or “charitable” within the meaning of § 501(c)(3) of the Code, it was, nonetheless, an “active advocate of a political doctrine.” The majority of the corporation’s activities were held to be in furtherance of the following goals: “the mobilization of public opinion; resisting every attempt by law or the administration of law which widens the breach in the wall of separation of church and state; working for the repeal of any existing state law which sanctions the granting of public aid to church schools; and uniting all ‘patriotic’ citizens in a concerted effort to prevent the passage of any federal law allotting, directly or indirectly, federal education funds to church schools.”

While Americans United still retained a tax exempt status as an organization described in § 501(c)(4) of the Code, the removal of its § 501(c)(3) exemption allegedly proved to be most damaging. Americans United states that its resulting removal from the list of § 170 corporations to whom tax free contributions could be made dried up its well of contributory resources to such an extent that it operated at a deficit for the first time in its history during fiscal year 1970. Consequently, on July 30, 1970, this action was commenced in the United States District Court for the District of Columbia. Two individual plaintiffs, Archer and Lowell, apparently suing as taxpayers who intended in the future to contribute to Americans United, joined with Americans United in bringing the class action.

The amended complaint in the district court averred violations of various first and fifth amendment liberties and guarantees: (1) §§ 170 and 501, and the action of the Commissioner in giving force and effect thereto, were unconstitutional and void insofar as they denied § 501(e)(3) status to the corporate appellant by reason of its exercise of first amendment rights, and likewise denied individual appellants the privilege of deducting the contributions used as a vehicle to exercise their first amendment rights. (2) Since what was a “substantial part” in the case of Americans United was not a “substantial part” in the case of other, larger organizations opposed to appellants’ viewpoint, the change of status because of the substantiality of the activities of one organization as opposed to another in expressing opinions and influencing legislation was an unreasonable classification against Americans United, and by reason thereof Americans United and other organizations similarly situated were being discriminated against and denied equal protection of the laws in violation of the fifth amendment of the United States Constitution. (3) Appellants claimed that their tax dollars were being used by reason of §§ 170 and 501 in a manner that aided and strengthened churches whose size permitted their influencing of legislation to be “relatively less substantial than that of the corporate [appellant],” and that appellee’s actions in enforcement thereof constituted violations of the establishment and free exercise clauses of the first amendment. (4) The exemption clause of § 501(c)(3) amounted to an invalid delegation of legislative power “in that the statutory standards of ‘substantiality’ and ‘propaganda’ [were] lacking in specificity for the carrying out of the purpose of Section 501(c)(3).” (5) Finally, the defendant acted arbitrarily and capriciously in abuse of his discretion in applying, in this situation, the “substantial influencing” clause of the statutory exemption of § 501(c) (3).

Appellants’ complaint founded jurisdiction for the action upon 28 U.S. C. § 1331 (1970) (civil action where amount in controversy exceeds $10,000 and which arises under the Constitution and laws of the United States), 28 U.S. C. § 1340 (1970) (whereby jurisdiction is bestowed in the federal district court in any civil action arising under an Act of Congress providing for internal revenue), and § 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1970) (making final agency action subject to judicial review). Appellants also sought the convention of a three-judge district court pursuant to 28 U.S.C. §§ 2282 and 2284 (1970), and requested the following relief: (1) Declaratory judgment that the “exemption clauses of Section 501(c)(3) [were] separable from the remainder of the section and [were] null and void” as unconstitutional under the first and fifth amendments, and as an invalid delegation of legislative power. (2) Judgment “requiring” the appellee to “reevaluate” corporate appellant as a § 501(e)(3) charitable corporation and to reinstate corporate appellant on the Cumulative List, Organizations Described in Section 170(c) of the Internal Revenue Code of 1954, if found to be eligible under the newly constituted § 501(c)(3). (3) Judgment restraining the appellee from enforcing §§ 170(c) and 501(c)(3) so as to deprive the individual appellants “of the benefit of tax advantages in the exercise of their First Amendment rights by reason of the unconstitutionality of those sections.” (4) Judgment that appellee acted in an arbitrary and capricious manner in changing the status of corporate appellant. (5) In the alternative, judgment requiring appellee to reopen the revocation proceedings and reevaluate the corporate appellant “in the light of the final decision in this case.”

Appellee filed a motion to dismiss, based essentially on 28 U.S.C. § 2201 (1970), which prohibits declaratory judgments “with respect to Federal taxes,” and 26 U.S.C. § 7421(a) (1970), which prohibits suits “for the purpose of restraining the assessment or collection of any tax.” The trial court denied appellants’ petition to convene a three-judge court, finding that no substantial constitutional question was raised, and granted appellee’s motion to dismiss, citing National Council on the Facts of Overpopulation v. Caplin, 224 F.Supp. 313 (D.D.C.1963).

Alleging error in both aspects of the trial court’s order, appellants 'bring this appeal. Contending that no taxes have been assessed or collected, that this is a civil rights rather than tax case, and that they have no other adequate remedy, appellants maintain that the provisions of 26 U.S.C. § 7421(a) (1970) and 28 U.S.C. § 2201 (1970) cannot be used to prohibit the declaratory and injunctive relief sought. They further contend that they have raised substantial constitutional questions meriting the invoking of a three-judge court under the standards established in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). Appellee’s posture on appeal is somewhat different, of course, and in addition to the grounds listed by the trial judge for dismissing the action he relies upon the doctrine of governmental immunity, claiming this to be an unconsented suit against the United States. Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506 (1914).

II. JURISDICTION

1. Introduction

The statutes providing for three-judge “constitutional” courts, adopted to avoid impolitic action on the part of lone federal district judges in matters of broad regulatory scope, are procedural rather than substantively jurisdictional in nature. A complaint which raises substantial constitutional questions and otherwise meets the requirements of § 2282 can and should be dismissed if independent district court jurisdiction is found wanting. “[T]he provision requiring the presence of a court of three judges necessarily assumes that the District Court has jurisdiction.” Ex Parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933). This court has held that a dismissal for want of jurisdiction is properly a matter for a single district judge without considering the question of convening a three-judge court. Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611 (1960), cert. denied, 364 U.S. 891, 81 S.Ct. 222, 5 L.Ed.2d 187 (1960). Accord, National Council on the Facts of Overpopulation v. Caplin, 224 F.Supp. 313 (D.D.C.1963). The first order of business for the single district judge is simply put (although, as here, not so simply decided): Does the district court have jurisdiction even to consider the applicability of a three-judge panel, or are the plaintiffs out of court for lack of subject matter jurisdiction?

The anti-injunction statute (26 U.S.C. § 7421 (1970)) by its terms denies jurisdiction to “any court” in actions seeking to enjoin the assessment or collection of taxes. If such a statute is applicable here the appellants cannot be afforded the relief requested, regardless of the substantiality of the constitutional questions raised. See, e. g., Harvey v. Early, 160 F.2d 836 (4th Cir. 1947).

Although its legislative history may be “shrouded in darkness,” the raison d’etre of § 7421(a) was illuminated by Chief Justice Warren in Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962):

The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. (Emphasis added, footnote omitted.)

See also State Railroad Tax Cases, 92 U.S. 575, 613-614, 23 L.Ed. 663 (1875). Section 7421(a) was thus born of administrative and governmental necessity, used to prevent intermeddling in the tax collection process. An offspring of the equity rule that a suit to enjoin the collection of taxes was not maintainable unless an adequate remedy at law was lacking, its language is much stronger and more encompassing in scope. Even if it can be shown that irreparable injury will result if the collection is effected, § 7421(a) bars a suit for an injunction in the absence of very special circumstances. See Enochs, supra, 370 U.S. at 6, 82 S.Ct. 1125.

The history of the Declaratory Judgments Act and § 2201 is somewhat different. When initially promulgated in 1934, the phrase “except with respect to Federal taxes” was absent from § 2201. Consequently, federal taxpayers (innovative as they are) quickly utilized it to obtain declaratory judgments holding various tax statutes unconstitutional, something they were barred from accomplishing under the anti-injunction statute. Congress (innovative as it is) quickly reacted and amended § 2201 to include the contentious phrase. The Senate Finance Committee, in reporting out the amended version, stated that the “application of the Declaratory Judgments Act to taxes would constitute a radical departure from the long-continued policy of Congress [as represented today by § 7421(a)] with respect to the determination, assessment, and collection of Federal taxes.” Literally broader than § 7421(a) in its preclusion of tax oriented remedies, the § 2201 exception has literarily been found coterminus with that provided by § 7421(a). McGlotten v. Connally, 338 F.Supp. 448 (D.D.C.1972). See also Bullock v. Latham, 306 F.2d 45 (2d Cir. 1962), and Tomlinson v. Smith, 128 F.2d 808 (7th Cir. 1942). We believe that to be a correct interpretation, one soundly based on the history of the exception and on the paradoxicalness of authorizing injunctive relief while depriving courts the authority to declare the rights of the parties in connection with the injunctive relief. The breadth of the tax exception of § 2201 is eo-extensive with the effect of § 7421(a), and so the applicability of the latter to our situation is determinative of jurisdiction.

2. Individual Appellants

The springboard of the action before us — namely that the removal of Americans United from the status of those corporations to whom tax deductible contributions can be made has wreaked havoc upon its financial stature — is the same for both the individual and corporate appellants. They seek to keep Americans United afloat. However, the posture of the appellants and the effect that the relief sought would have upon them is distinctively different. Stripped to its barest essentials, the individual appellants’ relief relates directly to the assessment and collection of taxes. They seek, despite their averments that no taxes have been assessed and that this is a civil rights rather than tax case, to enjoin the appellee from assessing or collecting taxes on those dollars contributed by them to Americans United. In paragraph 3 of the relief portion of appellants’ amended complaint this becomes evident:

[Plaintiffs pray that the following relief be granted:] Judgment enjoining defendant Thrower from enforcing Sections 170(c) and 501(c)(3) of Title 26 U.S.C.A., so as to deprive the individual plaintiffs and others similarly situated of the benefit of tax advantages in the exercise of their First Amendment rights by reason of the unconstitutionality of those sections.

The allegations that the tax will be assessed and collected in violation of their constitutional rights is to no avail. See Dodge v. Osborn, 240 U.S. 118, 36 S.Ct. 275, 60 L.Ed. 557 (1916); Harvey v. Early, 160 F.2d 836 (4th Cir. 1947); Moon v. Freeman, 245 F.Supp. 837 (E.D.Wash.1965); National Council on the Facts of Overpopulation v. Caplin, 224 F.Supp. 313 (D.D.C.1963). The allegation that no tax has as yet been assessed, and that therefore the action is somehow without § 7421(a), we find to be equally without merit. In the words of Chief Judge Sirica in National Council, supra, 224 F.Supp. at 314, “[t]he Court cannot agree that the immunity of a tax assessment from court-imposed restraint has anything to do with the timing of that restraint.” Finally, the individual appellants have not shown the high probability of success on the merits that warrants the non-application of § 7421(a) under the standards enunciated in Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962):

[I]f it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, under the Nut Margarine case, [Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932)], the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in “the guise of a tax.” Id., [284 U.S.] at 509 [52 S.Ct. at 263].
We believe that the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained.

The action brought and the relief sought by the individual appellants directly ranges within the ambit of § 7421(a), and as to them the action of the district court in dismissing the case was correct.

3. Corporate Appellant

Americans United, at the present time exempt from taxation on income by virtue of 26 U.S.C. § 501(c)(4) (1970), does not seek in this lawsuit to enjoin the assessment or collection of its own taxes. Because of the “tax breaks” attendant to contributions to corporations qualifying under § 170(c) of the Code, qualification thereunder is a precious possession and removal from the Cumulative List, Organizations Described in Section 170(e) of the Internal Revenue Code of 1954 is a damaging — sometimes fatal — injury to the financial status of any "charitable” organization. Potential contributors with a minimum of business acumen are careful to get the most for their contributed dollar, and one certain way not to do so is to contribute to non-§ 170 corporations. Appellant, therefore, presented with the dollar dilemma of finding prospective contributors closing their wallets, seeks to have the court restrain the Commissioner from meting § 501(c)(3) and § 170(c) qualifications in the alleged unconstitutional manner. A necessary side effect of any relief, of course, will be to allow contributions which otherwise would be made with after tax dollars to become deductible. Consequently, the appellee alleges that this is in essence a suit to restrain the assessment or collection of a tax and barred by § 7421(a).

McGlotten v. Connally, 338 F.Supp. 448 (D.D.C.1972), involved a class action brought by a black American denied membership in an Elks Lodge because of his race. The plaintiff sought to enjoin the Secretary of Treasury from granting tax benefits to fraternal and nonprofit organizations which excluded nonwhites from membership. The statutes involved were similar to those in the case before us, granting various exemptions both to the organizations and their contributors. The plaintiff alleged that the statutes were either unconstitutional, unconstitutonally interpreted, or that the benefits granted thereby were in violation of Title VI of the Civil Rights Act of 1964. The defendant moved to dismiss citing §§ 2201 and 7421(a), but a three-judge district court denied the motion. Chief Judge Bazelon, writing for the court, stated:

Plaintiff’s action has nothing to do with the collection or assessment of taxes. He does not contest the amount of his own tax, nor does he seek to limit the amount of tax revenue collectible by the United States. The preferred course of raising his objections in a suit for refund is not available. In this situation we cannot read the statute to bar the present suit. To hold otherwise would require the kind of ritualistic construction which the Supreme Court has repeatedly rejected. Even where the particular plaintiff objects to his own taxes, the Court has recognized that the literal terms of the statute do not apply when “the central purpose of the Act is inapplicable.” In the present case, the central purpose is clearly inapplicable. It follows that neither § 7421(a) nor the exception to the Declaratory Judgment Act prohibits this suit.

Id. at 453-454 (footnotes omitted).

A case from the opposite side of the restraint coin, wherein the Commissioner threatened to remove the tax exempt status of an organization because of racially discriminatory policies, is Bob Jones University v. Connally, 341 F.Supp. 277 (D.S.C.1971). Fearing that a drop in its level of contributions would cause irreparable harm, the University sought a preliminary injunction restraining the Commissioner from removing its § 501(e)(3) qualification. Faced with identical §§ 2201 and 7421(a) arguments, the district judge granted the injunction. The court found that the gravamen of the plaintiff’s complaint was not to ask the court to substitute its views for that of the Commissioner, see Jolles Foundation, Inc. v. Moysey, 250 F.2d 166 (2d Cir. 1957), but rather to prevent the Commissioner from acting “beyond the authority granted by the constitution or by the Congress, and to read into the Internal Revenue Laws powers that are not expressly given and that were never intended by Congress.” 341 F.Supp. at 282-283. The court went on to state:

If there were no contest as to the legality or the power of the defendants to revoke under existing law plaintiff’s tax exempt status because of its admitted racial discriminatory admissions policy, but was instead a case involving the applicability of such a rule to the plaintiff, it would then appear to be a case where this court was asked to preempt discretionary power of a federal officer which it would be powerless to do. . . . Plaintiff is not challenging the applicability of the rule, but the legality of the rule itself.
Bob Jones University is not seeking a declaratory judgment, but rather seeks to enjoin the defendants from exercising alleged illegal and ultra vires power and authority. Consequently, it is concluded that the levy, assessment, and collection of a tax is not the main issue. Plaintiff does not contest the amount or method of any levy, assessment, or collection, or evidence to be used in making such determination of taxes that might become due. Plaintiff is seeking to enjoin what it contends to be illegal and unconstitutional actions or threatened actions on the part of officials of the United States Government which it claims would lead to irreparable harm . . . .

Id. at 283.

Here, as in Bob Jones, the essence of appellants’ attack is not against the applicability of a test or their ability to qualify under presently existing standards. As the appellee correctly points out in his brief, “[appellants] do not seriously contend that Americans United qualifies under Section 501(c)(3) as written. Rather, they contend that the clause disqualifying organizations which devote a substantial part of their activities to political propaganda and lobbying should be elided as unconstitutional, and they seek a declaratory judgment to that effect.”

Appellee principally relies upon Jolles Foundation, Inc. v. Moysey, supra. Although there is language in Jolles regarding § 2201 we believe it to be distinguishable and not persuasive. In Jolles the appellant alleged that the Commissioner erred in his determination of its tax exempt qualification, and brought an action which the court correctly viewed as in the nature of mandamus “against the Commissioner to compel him to reverse his position based upon the activities of the Foundation already held not to come within the exemption . . . . ” 250 F.2d at 169. We submit that the Jolles case did not involve the alleged unconstitutionality of a taxing statute, but a challenge respecting the judgment of the Commissioner, and manifestly “the court cannot presume to speak for the Commissioner or take over his duty to pass upon the tax status of organizations applying for exemption.” Id.

Here, as in McGlotten and Bob Jones, no tax has been or will be assessed against the corporate appellant. The restraint upon assessment and collection is at best a collateral effect of the action, the primary design not being to remove the burden of taxation from those presently contributing but rather to avoid the disposition of contributed funds away from the corporation. The corporation, alleging constitutional violations of an identical nature to that of the individual appellants, irreparable injury, and an inadequate legal remedy, does so in a posture removed from a restraint on assessment or collection. We find, as did the courts in Bob Jones, McGlotten, and impliedly the court in Green v. Kennedy, 309 F.Supp. 1127 (D.D.C.1970), on permanent injunction, Green v. Connally, 330 F.Supp. 1150 (D.D.C.1971), aff’d per curiam, Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971), that it would be an all too encompassing interpretation of § 7421(a) to consider it as precluding a suit of this nature, and refuse to so hold.

We do not adopt the doctrine that § 7421(a) is inapplicable so long as a party does not seek to restrain the collection or assessment of its own taxes. Our holding is much narrower. In those situations where a non-taxpayer sues in the stead of the taxpayer, e. g., the shareholder suits brought on behalf of a reluctant corporation, Corbus v. Alaska Treadwell Gold Mining Co., 187 U.S. 455, 464, 23 S.Ct. 157, 47 L.Ed. 256 (1903), cf., Helvering v. Davis, 301 U.S. 619, 639-640, 57 S.Ct. 904, 81 L.Ed. 1307 (1937), or where the tax itself directly operates to place a financial burden upon the non-taxpayer, e. g., where the valuation of an estate for estate tax purposes would affect the tax liability of a non-taxpayer at a future date, West Chester Feed & Supply Co. v. Erwin, 438 F.2d 929 (6th Cir. 1971), when a tax levied upon processing oil would directly affect one about to enter the processing business, Gardner v. Helvering, 66 App.D.C. 364, 88 F.2d 746 (1936), cert. denied, 301 U.S. 684, 57 S.Ct. 784, 81 L.Ed. 1342 (1937), au fond it is a suit to restrain the collection or assessment of a tax “indirectly” levied upon the plaintiff, and within the purpose and proscription of § 7421(a).

What we have then is a hybrid sort of fellow. The challenge upon which we reverse runs not to the exercise of discretion or the everyday working affairs of the Commission, something we feel history and good sense implore us to leave alone, nor is it concerned with taxes levied either directly or “indirectly” upon the corporate appellant, something which § 7421(a) mandates us to leave alone. Finally, an alternate legal remedy in the form of adequate refund litigation is unavailable. The lack, of a meaningful alternate form of relief is important herein for two reasons: first, its absence solidifies our belief that the situation sub judice is without the purpose and expected scope of § 7421(a), and second, its absence renders equitable relief most appropriate. We suspect that the birthrate of such a hybrid will be so low that the proverbial “flood gates” to judicial review of Internal Revenue Service action will remain closed.

4. Sovereign Immunity

Appellee, relying chiefly upon Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506 (1914), urges the court to recognize this suit as one against the United States to which consent has not been given, and hence barred by the doctrine of sovereign immunity. We feel that the appellee has failed to recognize this suit as rightly falling within the exceptions to the doctrine as reiterated by the Supreme Court in Dugan v. Rank, 372 U.S. 609, 622, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Those exceptions relate to (1) actions by officers beyond their statutory powers, and (2) actions within the scope of their authority, when the powers themselves or the manner in which they are exercised are constitutionally void. The appellants do not challenge the right of the Commissioner to adopt rules and regulations, but they do challenge his right to enforce a statute which they assert violates various constitutional liberties. This clearly falls within the “exception” almost as broad as the “rule,” that “sovereign immunity does not prevent a suit against a state or federal officer who is acting either beyond his authority or in violation of the Constitution.”

III. SUBSTANTIAL CONSTITUTIONAL QUESTION

The single district court judge below denied appellants’ motion to convene a three-judge panel pursuant to 28 U.S.C. § 2282 (1970), for the stated reason that the challenge raised no substantial constitutional questions. We reverse and remand with respect to the only remaining appellant in this litigation, Americans United, with instructions to promptly convene a § 2282 panel.

In Bulluck v. Washington, 152 U.S.App.D.C. 39, 468 F.2d 1096 (1972), rehearing en banc, July 14, 1972, we have recently had an opportunity to restate the scope of a district court’s inquiry (and consequently our scope of review) when confronted with an application for a § 2282 panel. The court is limited to questioning (1) whether the constitutional questions raised are substantial, which in turn is limited to a determination of whether they are “obviously without merit” or so clearly unsound by reason of previous decisions of the Supreme Court “as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933); (2) whether the complaint at least formally alleges a basis for equitable relief; and (3) whether the case presented otherwise comes within the requirements of the three-judge panel. Idlewild Bon Voyage Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962).

As our discussion of the case to this point has shown, what appellant effectively seeks here is a restraint on the enforcement of the “substantial part” clause of § 501(c)(3). It accomplishes this by seeking a declaratory judgment that the section is unconstitutional, and by requesting injunctive relief to force the Commissioner to reclassify it and other similarly situated corporations as tax exempt if they are found to qualify. This type of action, affecting legislation of broad regulatory scope and amounting to a restraint on its enforcement as written and interpreted, is within the § 2282 mandate. Satisfied that the other requirements for the three-judge panel are present, and that equitable relief is properly requested, we turn to the substantiality question.

Although as can be seen from our earlier listing appellants originally raised a multitude of possible constitutional violations, at oral argument and in its Reply Brief it has narrowed its focus, and we believe wisely so, to the “discriminatory” aspects of § 501(c)(3). Basically, this is that since larger, wealthier organizations can engage in conduct identical to that of appellant without, because of their size, falling within the “substantial part” category of § 501(c)(3) and thereby losing their precious tax exempt status (and more precious listing among those corporations to whom tax free contributions can be made), § 501(c)(3) is unconstitutionally discriminatory in violation of the equal protection ramifications of the due process clause of the fifth amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 844 (1954). We find such a claim, novel as it may be, neither obviously without merit nor foreclosed by previous Supreme Court decisions.

Appellee relies chiefly upon Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462 (1959), but Cammarano, while disposing of appellants’ claim that first amendment rights are violated by the questioned statute, does not attempt to deal with possible discriminatory conduct. In Cammarano liquor dealers had expended funds in advertising campaigns against statutory resolutions in Washington and Arkansas which would have effectively closed their businesses, and sought to deduct their costs as ordinary business expenses. The lower courts ruled that “the payments . . . were ‘expended for . the . . . defeat of legislation’ within the meaning of Treas.Reg. 111, § 29.23(0)-1 and were therefore not deductible as ordinary and necessary business expenses under § 23(a)(1)(A) of the Internal Revenue Code of 1939.” Id. at 501, 79 S.Ct. at 527. The court, per Justice Harlan, continued:

Petitioners are not being denied a tax deduction because they engage in constitutionally protected activities, but are simply being re°quired to pay for those activities entirely out of their own pockets, as everyone else engaging in similar activities is required to do under the provisions of the Internal Revenue Code. Nondiscriminatory denial of deduction from gross income to sums expended to promote or defeat legislation is plainly not “ ‘aimed at the suppression of dangerous ideas.’ ”

Id. at 513, 79 S.Ct. at 533. Americans United, on the other hand, alleges just that discriminatory conduct found lacking in Cammarano. This discrimination relates solely to the “size” of the organization, which appellants allege is directly related to its wealth and power structure, and comes into play during and because of the exercise of first amendment protected liberties. By allowing larger, richer organizations more “dollar punch” in terms of “propagandizing” and “influencing legislation” before their respective activities are considered “substantial,” the Commissioner is accused of following the mandate of § 501(c)(3) and treating identical activity differently, solely on the basis of the size, or wealth, of the acting party.

Nearly every jurist and attorney today is aware of the flood of cases before the bench raising important questions, at least in the context of the fourteenth amendment equal protection clause, concerning the interpretation of “fundamental rights,” “suspect categories,” and their resultant “compelling state interest test.” A case similar to the redoubtable Serrano v. Priest, 5 Cal.3d 584, 96 Cal. Rptr. 601, 487 P.2d 1241 (1971), which struck down California’s system of public school financing as violative of the fourteenth amendment, and straightforwardly classified both “wealth” and “education” as categories calling for stricter justification in terms of equal protection, is presently submitted before the United States Supreme Court. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1972). The Court’s decision in that case should prove most instructive in an area of concern before us —“discrimination” of this type as within the “wealth” category, and the status of “wealth” as giving rise to the compelling interest test.

If discrimination exists here it relates to the exercise of the most fundamental of rights, those protected by the first amendment, and raises questions concerning the directness of its relationship to wealth. We are aware that the various tests of which we speak have arisen in the context of the fourteenth amendment, but find that they are nonetheless relevant to the consideration of whether the government has exercised its taxing powers in such a discriminatory fashion as to violate the due process guaranties of the fifth amendment. This is neither a frivolous challenge nor one which, as of the writing of this opinion, has been foreclosed by the Supreme Court.

We want to stress that our opinion is in no way meant to state our views of the merits of this case beyond that required: namely, that the possibility of success is not so certain as to merit the Enochs exception with respect to § 7421(a), yet not so frivolous or foreclosed as to merit denial of the § 2282 motion. The discrimination problem may ultimately prove to be a mirage, or even a muddle, but it certainly is not maggot-pated.- The question merits a three-judge panel.

Reversed and remanded for further proceedings consistent with this opinion.

WILKEY, Circuit Judge,

concurring:

I concur unreservedly in Judge Tamm’s opinion for the court, all the more willingly because his opinion is a model of lucidity in a field of law — taxation — in which that quality is as rarely found iii either judicial decisions or legislation as sunlight on the dark side of the moon.

Since we have decided no issue on the merits, except that the constitutional issues are sufficiently serious to require decision by a three-judge court, I believe it appropriate to raise a question for the consideration of the three-judge court which was not briefed by the parties and is not dealt with by our court’s opinion.

As I see it, the basis of our decision here is that there is a substantial constitutional question because the challenged tax provision discriminates on the basis of wealth (size), and because the Supreme Court is currently considering cases which may say that such distinctions need to be closely analyzed. Although other statutes are relevant, the vital statute at issue is 26 U.S.C. § 501(c)(3) (1970), quoted in footnote one of the court’s opinion. Making a careful analysis of this statute, the first part states why tax exemption is granted — and that relates to the purpose of the organization. Thereafter are listed several factors which will nullify the tax-exempt status granted by the first part of § 501(c)(3). One of the disqualifications for tax-exempt status is expressed in the phrase, “. . .no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, . . . ”

And this disqualification phrase is what this case is all about. 26 U.S.C. § 501(c)(3) first ties tax status to the purpose of the organization — and the “no substantial . . . influence legislation” disqualification test (like the disqualification reference to private earnings or political campaigns) is aimed at assuring some purity in that purpose.

It is arguable that a small organization that spends almost all of its funds lobbying is not organized or conducted for the same purpose as a large organization, which may spend quantitatively as much, but which proportionately devotes most of its activities to unquestionably exempt purposes. If we make an analysis by following the impact of the donor’s dollar, a gift to “Americans United” has “more punch” on the legislative front than a gift to a large church organization which spends only 1% of its income on lobbying activities.

In that sense, the large organization is not engaged in what can reasonably be called “identical conduct.” The statute does not give any greater privilege of speech to large organizations — other than the greater amount of impact any group can have if it raises more money. Rather, the interpretation of equal protection sought by “Americans United” would give a greater right of speech — by emasculating the “purpose” rationale of § 501(e)(3) — to small organizations. We cannot ignore the “purpose” rationale, because purpose is the only ground for tax exemption under § 501(c)(3).

Furthermore, if the larger groups are seen as engaged in “identical conduct” —what is to be the bench mark? If the purpose of the tax statute is to be preserved at all, then the large church organizations probably must hold to devoting a small percentage of their resources to lobbying. Is that quantitative amount then to guide — so that a small organization, with total funds amounting only to the tiny percentage which the large organization devotes to this purpose, could devote 100% of its funds to lobbying and still be exempt?

In short, it is certainly arguable that small groups are not being treated differently by § 501(c)(3) because they are small, but because they are obviously operating for a different purpose if they devote their comparatively small funds on a much different proportionate basis to propaganda for legislation.

I have raised the issue above by stating only one side of the argument. There are, of course, counterarguments. We are not here deciding this or any other issue on the merits, but since neither party has seen fit to bring this issue to the courts’ attention, I feel it of sufficient importance to raise it for such consideration as the three-judge court and parties may wish to give it.

      . 26 U.S.C. § 501(c) (3) (1970):
      Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.

      . Organizations which have secured rulings that they are tax exempt under § 501(c)(3) are described in I.R.S. Publication No. 78, Cumulative List, Organizations Described in Section 170(c) of the Internal Revenue Code of 1954. The requirements for §§ 501(c)(3) and 170(c)(2) are nearly identical in every respect.

      . 26 U.S.C. § 501(c) (4) (1970) :
      Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.

      . 28 U.S.C. § 2282 (1970) :
      An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.

      . In this manner the appellants seek to continue the viability of § 501 (c) (3) without the challenged “substantial part” exception to the exemption. As the Court of Appeals for the Tenth Circuit has recently stated: “Where a court is compelled to hold such a statutory discrimination invalid, it may consider whether to treat the provisions containing the discriminatory underinclusion as generally invalid, or whether to extend the coverage of the statute.” Moritz v. Commissioner, 469 F.2d 466 at p. 470 (10 Cir. 1972). Cf. Welsh v. United States, 398 U.S. 333, 361, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring), and Skinner v. Oklahoma, 316 U.S. 535, 542-543, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

      . 28 U.S.C. § 2201 (1970) :
      In a ease of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

      . 26 U.S.C. § 7421(a) (1970) :
      Except as provided in sections 6212 (a) and (c), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.
      The exceptions provided are not applicable to this case.

      . See Note, Enjoining the Assessment and Collection of Federal Taxes Despite Statutory Prohibition, 49 Harv.L.Rev. 109 (1935).

      . Act of June 14, 1934, ch. 512, 48 Stat. 955.

      . See, e. g., Penn v. Glenn, 10 F.Supp. 483 (W.D.Ky.1935), app. dismissed per curiam, 84 F.2d 1001 (6th Cir. 1936), and F. G. Vogt & Sons, Inc. v. Rothensies, 11 F.Supp. 225 (E.D.Pa.1935). Although both courts refused to grant injunctive relief, they expected the tax collector to “respect the decision.” If he did not do so and the taxpayer was forced to sue for a refund, “the trial court would probably be justified in refusing him a certificate of probable cause, and thus he and his bond would be liable for the judgment obtained.” 11 F.Supp. at 231. This was a neat circumvention of the anti-injunction statute, but one that Congress did not appreciate.

      . Act of August 30, 1935, ch. 829, § 405, 49 Stat. 1027.

      . S.Rep. No. 1240, 74th Cong., 1st Sess. 11 (1935).

      . Since Americans United qualifies as a tax exempt organization pursuant to § 501 (c)(4) of the Code, the normal avenue of challenge, tax refund litigation, is not available. Appellee in his Supplemental Memorandum and at oral presentation has for the first time suggested two additional “adequate” legal remedies available to the appellant corporation. These are the federal social security and unemployment tax refund litigations, since § 501(c)(3) organizations are exempt from both taxes while § 501(c)(4) organizations are exempt from neither.
      Appellant points out that although not required to pay social security taxes while exempt under § 501(c) (3), it elected to do so. A termination of such an election requires two years advance notice and cannot be made if the election has been in effect more than eight years, as it was here. Moreover, under 26 U.S.C. § 3121 (k) (3) (1970), an organization which once terminates its election to pay those taxes voluntarily cannot renew the election. Although the unemployment tax refund litigation is not fraught with perils of equal magnitude, it is subject to certain conditions and, we feel, is so far removed from the mainstream of the action and relief sought as to hardly be considered adequate.

      . Green, involved a class action brought by black students and their parents to enjoin the Secretary of Treasury from granting tax exempt status to private schools discriminating against blacks. A three-judge district court was convened and, Judge Leventhal writing, determined that the Internal Revenue Code could not be interpreted as granting a tax exempt status to such organizations. Although faced with governmental insistence that the relief sought was barred by §§ 2201 and 7421(a), the court did not address the problem but granted the injunctive relief. The ease was affirmed per curiam and without opinion by the Supreme Court, but as by that time the Commissioner had “voluntarily” altered the rules to comply with the decision, and the government did not press the appeal, the precise force and effect of the affirmance is questionable.

      . The ultimate effect of the Green and McGlotten litigations was to increase the tax revenue of the United States, while at least theoretically the effect of Bob Jones and the case at hand is to decrease the tax revenue. We do not believe, and ajjpellee has in fact agreed, that such a fact is of distinguishable merit. It is untenable that a party seeking to have an entire section declared unconstitutional, thus removing the exemption and theoretically increasing the tax revenue, should be treated differently from one seeking to remedy the discriminatory underinclusion by striking the unconstitutional clause, and thus theoretically decreasing the tax revenue.
      In reaching our conclusion regarding the applicability of § 7421(a) we have considered, and found unpersuasive, the decisions in Liberty Amendment Committee of the U.S.A. v. United States, Civ.No.70-721-HP (C.D.Cal. June 19, 1970), aff’d per curiam, No. 26,507 (9th Cir. July 7, 1972), and Crenshaw County Private School Foundation v. Connally, 343 F.Supp. 495 (M.D.Ala.1972).

      . Arguably Americans United’s purpose could be that of “representing” its remaining contributors who now face the assessment of taxes on their contributed dollars —a sort of “end run” maneuver to avoid the proscriptions of § 7421(a) that we have found to apply to suits brought by those contributors — but we do not believe such to be a realistic appraisal of the situation. Americans United is concerned about its own preservation which is threatened not by the indirect burden of the tax upon them, but by the “unconstitutional” action of the Commissioner resulting in the driving of prospective contributors to other “charities.”

      . Standing to sue and ripeness problems, neither of which we find to preclude the lawsuit before us, could also work to prevent other litigation which arguably would be without the scope of §§ 2201 and 7421 (a).

      . K. Davis, Administrative Law Treatise 522 (1958). Professor Davis treats Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) as the “foundation case” for such a rule :
      If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.

        Id. at 159-160, 28 S.Ct. at 454. See also Georgia R. R. & Banking Co. v. Redwine, 342 U.S. 299, 304-305, 72 S.Ct. 321, 96 L.Ed. 335 (1952).

      . See p. 1173, supra.

      . It is true that in Helvering v. Lerner Stores Co., 314 U.S. 463, 468, 62 S.Ct. 341, 343, 86 L.Ed. 343 (1941), Justice Douglas wrote that “[a] claim of unreasonable classification or inequality in the incidence or application of a tax raises no question under the Fifth Amendment which contains no equal protection clause.” The great weight of authority today, however, as exemplified by Bolling, Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964), and Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), is that “[w]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.’ ” 377 U.S. at 168, 84 S.Ct. at 1190.

      . See dissent of Marshall, J., in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), for discussion of classifications based on speech. See also Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), a case which although decided on procedural due process grounds discussed the effect of tax exemptions:
      To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The appellees are plainly mistaken in their argument that, because a tax exemption is a “privilege” or “bounty,” its denial may not infringe speech.

        Id. at 518, 78 S.Ct. at 1338.

      . Some counterarguments may be derived from William G. Ilalby’s article, “Is the Income Tax Unconstitutionally Discriminatory?”, 58 A.B.A.J. 1291 (December, 1972). Others may be inspired by the reflection that, if 200 years ago men revoltecl on the principie that “Taxation without representation is tyranny”, then today men may rise in righteous wrath because taxation with representation but beyond human comprehension is even worse.