author: THORNBERRY, Circuit Judge:

text:
    Patrick Edwin GOLDEN, Jr., Plaintiff-Appellee-Cross Appellant, v. KENTILE FLOORS, INC., et al., Defendants-Appellants-Cross Appellees.
    No. 74-2452.
    United States Court of Appeals, Fifth Circuit.
    May 12, 1975.
    Rehearing Denied June 13, 1975.

      Taylor W. Jones, Atlanta, Ga., Irving R. Krosner, New York City, for defendants-appellants-cross appellees.
    Joe T. Taylor, III, A. Orville Bracey, III, Atlanta, Ga., for plaintiff-appelleecross appellant.
    King & Spalding, Atlanta, Ga., Kelley, Drye, Warren, Clark, Carr & Ellis, New York City, for Mfg. Hanover Trust Co.
    Before BELL, THORNBERRY and GEE, Circuit Judges.
   THORNBERRY, Circuit Judge:

This appeal arises from a nonjury trial in which the plaintiff, Patrick Edwin Golden, Jr., obtained a judgment against the defendant, Kentile Floors, Inc., directing the latter to reinstate plaintiff into the company’s “Profit-Sharing Plan for Salaried Employees,” and awarding plaintiff $5,000 in penalties pursuant to former 29 U.S.C. § 308(b). Kentile appeals these portions of the judgment, and Golden cross-appeals the district court’s rejection of a Sherman Act damages claim, the court’s refusal to award some $58,000 in additional statutory penalties, and the denial of attorney’s fees. We affirm the judgment insofar as it denies relief under the antitrust laws and denies attorney’s fees. We reverse and render judgment in favor of Kentile with respect to reinstatement of Golden into the profit-sharing plan and the award of statutory penalties. Consequently, it becomes unnecessary to decide whether the district court, in its discretion, may award less than $50 per day when the court has determined that a party is entitled to a penalty award under § 308(b).

I. FACTS

Although the parties vigorously debate the range of ultimate inferences that were permissibly available to the trial court, there has never been any material dispute over the basic sequence of events that led to this controversy. Plaintiff Golden secured employment with Kentile around November 1, 1949. The employment continued until December 5, 1969, at which time his resignation became final. During his tenure with Kentile, Golden advanced from “sales representative” to the position of “Southeastern Regional Sales Manager.”

On January 1, 1953, Kentile established the Kentile, Inc. Profit-Sharing Plan for Salaried Employees, which Golden joined on November 20, 1953. At that time he executed a document, which provided in part as follows:

I have read the Kentile, Inc. Profit-Sharing Plan for Salaried Employees, and the Trust Agreement thereunder, both dated as of January 1, 1953.
I hereby agree to observe and be bound by all of the terms, conditions and provisions of the said Plan and Trust Agreement as a party, and I had [sic] subscribed my name to both of them.

The plaintiff gave unblemished deposition testimony that he had received a copy of the Profit-Sharing Plan and had read it and was familiar with its terms when he signed the document.

We mention several of the plan’s “terms, conditions, and provisions.” Since the plan’s inception, questions concerning the rights of members have fallen within the jurisdiction of a Profit-Sharing Committee. This committee, since 1953, has consisted of the same five persons, three of whom are plan members and two of whom have no interest in the plan. Also since the plan’s inception, investment management has been committed to the sole trusteeship of the Manufacturer’s Hanover Trust Company.. No persons other than the members of the commitee, its counsel and staff, and the trustee have ever exercised power or control over the plan’s assets or the rights of its members, nor have any other persons held the authority to do so. The plan has always been funded solely by Kentile, and participants have never been permitted to make contributions of their own. With respect to vesting, the plan provides that the contributions made by Kentile shall not confer any right, title, or interest upon a member until the funds are actually paid out under the committee’s authority as set forth in the plan.

This dispute focuses narrowly on one of the plan’s specific clauses. At all times since January 1, 1958, the plan has provided as follows:

Article VII, Section 12(b): '
If the Committee determines that any Member whose employment has terminated by reason of retirement or other cause, is, without the written approval of the Employer, engaged or employed in any occupation, or in a business, which, in the Committee’s sole opinion, is in competition with the Employer, and if after 5 days’ notice by Registered Mail, such Member fails to discontinue such engagement or employment, the share of such Member then held by the Trustee shall be deemed forfeited upon the certification of the Committee.

Between 1953 and 1958, the plan contained essentially the same forfeiture feature, except that a member had sixty days following notice from the committee in order to avoid forfeiture by ceasing competitive employment. The 1958 amendment does not inject a material fact into this case in that if the committee’s action which is presently challenged may not be disturbed, then the plaintiff necessarily forfeited his interest under either the original plan or the amendment, as he continued to work for the employer determined to be a competitor of Kentile for more than sixty days after receipt of the committee’s notice by registered mail.

On November 14, 1969, plaintiff tendered his formal letter of resignation to Mr. David O’D. Kennedy, who was Kentile’s president, board chairman, and a member of the Profit-Sharing Committee. In this letter the plaintiff announced that he had “joined with a small group of men to form a new carpet company, which will be called Commander Carpets. We will construct a production facility and home office in Cartersville, Georgia with plans to initially market four (4) qualities through sales agents.” Plaintiff also expressed his hope that the committee, upon receipt of this news, “would not evaluate such a new company to be classified a competitor.” Nonetheless, plaintiff admitted in his deposition that although he did not personally feel that he was going into competition with Kentile, he was aware on November 14, 1969 that he might be classified a competitor. One major reason for the plaintiff’s decision to change jobs stands out in the record, and is not subject to serious question: he simply thought he could improve his opportunities and earn more income with the new firm. Although he had mentioned his awareness of a possible competition problem in the resignation letter, plaintiff did not then request from the committee a response thereto, nor did he request such a response during his “short” time at Kentile up to December 5.

At the time of plaintiff’s resignation, Kentile was marketing floor coverings, including tufted carpeting, throughout the Southeast, and plaintiff stood in direct charge of Kentile’s sales in Alabama, Florida, Georgia, Louisiana, Mississippi, the Carolinas, and Tennessee. During plaintiff’s ensuing employment as vice president of Commander Carpets, he made carpet sales for Commander in Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee. Similarly, plaintiff made sales for Commander to several distributors who were likewise Kentile customers. He also contacted other Kentile distributors in unsuccessful attempts to sell Commander’s products. The distributors contacted by plaintiff initially on behalf of Kentile, and later on behalf of Commander, customarily handled several more or less qualitatively equivalent lines of carpet. Although he denied that these distributors were purchasing carpet from Kentile similar to the carpet he sold for Commander, plaintiff admitted in his deposition that the manufacturers of various lines of carpet competed with each other for the business of the distributors. He also testified to an awareness that, to a varying degree depending on the consumer’s intended use, all types of carpet are competitive with each other, and tufted carpets are sometimes competitive with other floor coverings manufactured by Ken-tile. This thesis was corroborated by the deposition testimony of another witness, Mr. John Shevlin, who added that “an awful lot depends on the person doing the selling job, which way he points the customer.”

There is no dispute that during plaintiff’s term with Commander, that company manufactured or marketed at least-three types of carpet, one of which (a “70/30 acrylic level loop”) was highly competitive with Kentile’s “Homestake, Pattern No. 721.” Further, uncontradicted deposition testimony by Mr. Shevlin indicated that at all pertinent times Kentile had the raw materials, equipment, and manpower to manufacture and market carpeting identical to the three types produced by Commander. In essence, the plaintiff does not and cannot contradict the overwhelming evidence that he engaged in competition with Kentile while employed by Commander. Nor has he contended during this litigation that the committee’s determination to that effect was factually erroneous; nor was such a finding made by the district court.

Following his letter of resignation, plaintiff received no official word from Kentile concerning his membership status in the profit-sharing plan for approximately four-and-a-half months. Then, around April 8, 1970, he received from the committee the registered letter, dated April 1, which called his attention to Article VII, Section 12(b) of the plan, supra, and which notified him that his share of the fund would be forfeited if he did not terminate his employment with Commander during the next five days. Despite this notice, plaintiff took no step toward terminating with Commander. Instead, he wrote a “personal” letter to Mr. Jack Clegg, a Kentile vice president, requesting that Mr. Clegg express a “sales opinion” describing Commander’s activities to Miss C. W. Kelly, Kentile’s executive vice president, and the committee member who signed the letter of April 1. Among other things, this letter expressed plaintiff’s puzzlement and hurt feelings that the committee would view Commander as Kentile’s competitor, when Commander stood comparatively as a much smaller operation, and plaintiff had rendered twenty years of service to Kentile. There is no evidence that Mr. Clegg, who was not a committee member, ever transmitted the information submitted by plaintiff to Miss Kelly or to the committee. On the other hand, plaintiff’s letter to Clegg had begun: “If you prefer not to get involved in this matter, I’ll understand.”

Apart from the letter to Clegg, there is no evidence that plaintiff made any attempt to present his case to the committee prior to receipt, on about April 20, 1970, of a copy of the committee’s formal resolution of forfeiture. Although the record contains an undisputed assertion by Kentile that plaintiff “could have submitted ... in such form that he chose, any information or evidence that he wished to have the Committee consider,” once again plaintiff’s unequivocal deposition testimony reflects his admission that he “made no further attempt to discuss this matter with any officer of Kentile or any member of the committee.”

The final brick in the road to the courthouse was laid shortly thereafter. In a letter dated April 27, 1970, plaintiff wrote to the committee requesting some twenty-four items of detailed information about the profit-sharing plan, and purportedly invoking the “federal Welfare and Pension Plan Disclosure Act.” In reply correspondence dated July 10, the committee forwarded to plaintiff a copy of the minutes of its meeting of June 15, in which the committee had determined upon the advice of counsel to refuse compliance with the request for information. As the basis for this decision, the minutes recite that the committee no longer considered plaintiff a “participant” in the plan as of April 27, the forfeiture having become irrevocable on April 20, the date of the forfeiture resolution.

Plaintiff Golden terminated his employment with Commander on June 23, 1970 by redeeming $500 worth of Commander stock he had purchased when he joined the company. Five months later he initiated this suit. In a commendably professional fashion which exemplified the virtues of skillful discovery under the Federal Rules of Civil Procedure, the parties submitted the case for trial upon the answers to interrogatories, depositions, and various exhibits. We turn now to the issues on appeal.

II. THE ANTITRUST COUNT

Seeking treble damages under § 1 of the Sherman Act, 15 U.S.C. § 1, and § 4 of the Clayton Act, 15 U.S.C. § 15, plaintiff Golden launches a broadside attack on the anti-compete provision of the Kentile plan, Article VII, Section 12(b), supra. The district court rejected this claim in the belief that the weight of authority lies against finding unreasonable restraints on trade when the employment-generated contract restriction does not preclude the employee from engaging in competitive activity, but merely provides for the loss of rights or privileges if he does so. We believe that the district court ruled correctly, both as a matter of authority and as a matter of sound judgment under the rule of reason.

Section 1 of the Sherman Act generally outlaws “[ejvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ..” Despite the statute’s expansive language, we are reminded that “no court applying the rule of reason has ever held such a contract [i. e., of the sort involved here] violative of section 1 of the Sherman Act.” Bradford v. New York Times Co., 2d Cir. 1974, 501 F.2d 51, 59.

Still the leading case applicable to this problem is United States v. Addyston Pipe & Steel Co., 6th Cir. 1898, 85 F. 271, aff’d, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899), which foreshadowed the rule of reason later reflected in the Supreme Court’s celebrated Standard Oil and American Tobacco duet. While we are mindful that Addyston Pipe established that the Sherman Act is, at the threshold, a positive Congressional restatement of the common-law’s disfavor for oppressive ancillary anticompetitive covenants, we agree with the Second Circuit’s observation in Bradford that the collective effect of the rule of reason decisions was to “effectively [overcome] any earlier intimations that all restraints of trade, whether valid or not at common law, were now literally prohibited by section 1 of the Sherman Act.” 501 F.2d at 59 — 60. Consequently, in the absence of a per se challenge, we are satisfied that the issue of Article VII, Section 12(b)’s reasonableness should be resolved by reference to its business context viewed in light of prevailing common-law principles. We utilize these principles because they constitute the connecting fabric of pertinent Sherman Act analysis, and not because— as the plaintiff mistakenly suggests — we labor under some misapprehension that by reference to them we thereby bind ourselves to the law of any particular state. Though we find guidance in precedents developed for the most part under state law, our decision of this antitrust claim is in all respects a federal one. Cf. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).

We begin with the settled proposition, noted by the district court, that at common-law

[t]he authorities . . . generally draw a clear and obvious distinction between restraints on competitive employment in employment contracts and in pension plans. The strong weight of authority holds that forfeitures for engaging in subsequent competitive employment, included in pension retirement plans, are valid, even though unrestricted in time or geogra-. phy. The reasoning behind this conclusion is that the forfeiture, unlike the restraint included in the employment contract, is not a prohibition on the employee’s engaging in competitive work but is merely a denial of the right to participate in the retirement plan if he does so engage.

Rochester Corp. v. Rochester, 4th Cir. 1971, 450 F.2d 118, 122-23 (footnotes omitted) (Virginia diversity suit). See also Brown Stove Works, Inc. v. Kimsey, 1969, 119 Ga.App. 453, 167 S.E.2d 693, 695; Van Pelt v. Berefco, Inc., 1965, 60 Ill.App.2d 415, 208 N.E.2d 858, 865.

We deem it significant that this case presents as pure an example of “employee choice” as a court could normally anticipate. While the “employee choice” doctrine, see Kristt v. Whelan, 1957, 4 A.D.2d 195, 164 N.Y.S.2d 239, aff’d, 5 N.Y.2d 807, 181 N.Y.S.2d 205, 155 N.E.2d 116, has to some degree been discredited by both the Bradford and Rochester courts insofar as it suggests that a forfeiture may never be examined for reasonableness, those cases involved more than simple forfeitures of unvested deferred compensation. In Bradford the plaintiff, a former New York Times key executive, had executed an express promise to refrain from competition with the Times throughout the period during which deferred benefits would be payable. The agreement provided for forfeiture of unpaid benefits as a measure of liquidated damages in case of breach. As an express covenant not to compete, upon which the Times might have sought - injunctive relief as well as forfeiture, the agreement was held subject to a searching (albeit unproductive) review for unreasonableness. In Rochester the company had attempted unilaterally to impose an anti-compete forfeiture amendment to a pension plan under which the plaintiff’s rights had already vested, by virtue of some nineteen years’ service. With respect to sums accrued prior to the amendment, the court held that the company’s action was unreasonable and invalid under the terms of the plan itself, which prohibited amendments that would impair the interest of any member in prior contributions. As to contributions made subsequent to the amendment, however, the Rochester court held that plaintiff’s rights were not violated by the company’s declaration of forfeiture upon his commencement of competitive employment, despite the contributions’ vestiture.

None of the factual complications found in the other cases is present in the case at bar. For purposes of our decision that Article VII, Section 12(b) is not unreasonable under § 1 of the Sherman Act, it is sufficient to emphasize several considerations: First, the forfeiture provision, though clearly part of a “contract,” in no way prevented plaintiff from retaining or continuing employment with Commander; indeed, plaintiff continued such employment without any interference from Kentile until he resigned from Commander for reasons related not to the profit-sharing plan, but to his own economic self-interest. Second, the plan imposed no restriction on any other potential employer, nor has plaintiff shown that the forfeiture provision restrained or coerced any prospective employer from hiring him. Third, the forfeiture, by the express terms of the plan, did not operate to divest a “vested” right. Finally, the forfeiture provision, in the context of the entire Kentile plan, is supported by reasonable business justifications. More specifically, the forfeiture was designed by Ken-tile to protect the company and other member employees against competition from former employees who leave the company, voluntarily engage in competitive employment, and yet simultaneously seek to obtain deferred compensation from a trust established and funded by Kentile for the benefit of personnel whom Kentile would reward for company loyalty and consequent company success. As a matter of permissible business practices under federal antitrust policy, there would perhaps have been limitations upon the degree to which Kentile lawfully could have restricted plaintiff’s right to work in a chosen field. Contrary to plaintiff’s contentions, that is not what was done. Rather, Kentile sought to insure that the plaintiff would not freely compete against it and at the same time obtain resources which the company, in its judgment, might utilize more advantageously in favor of other employees. We are unable to say that the means chosen by Kentile in furtherance of this legitimate objective were unreasonable within the proscription of § 1 of the Sherman Act and the relevant case law. We therefore affirm with respect to the antitrust claim.

III. PENSION PLAN REINSTATEMENT

This claim, arising under diversity jurisdiction and the decisional law of New York, resulted below in an order enjoining Kentile “from refusing or failing to pay plaintiff his share of the Trust Fund valued in an amount of $28,701.12. . ” Although the parties do not differ greatly over the proper legal standards, Kentile emphatically assails the trial judge’s findings of fact as clearly erroneous, F.R.Civ.P. 52(a). We, too, are “left with the definite and firm conviction that a mistake has been committed,” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), and accordingly we reverse. Since we are convinced likewise that the plaintiff failed to carry his burden of producing evidence in support of his claim, we render judgment in favor of Kentile.

Recalling the provisions of the plan concerning vesting and the timing of payment, it appears that the committee had no express contractual obligation to undertake a determination of plaintiff’s rights within a particular time period following his resignation from Kentile. Strictly speaking, the committee had at least two years in which to decide whether the plaintiff met the plan’s entitlement conditions, including that contained in Article VII, Section 12(b). This may or may not have been plaintiff’s subjective understanding of the plan, but as a bare matter of interpretation we take its words as we find them in the absence of something in the plan itself, or in the circumstances surrounding its execution, to indicate a different intention of the parties. There is nothing in either respect.

Rather, it was plaintiff’s successful contention below that the committee abused its broad discretion in the manner by which it determined his competitiveness, and hence the forfeiture. Courts naturally have shown great reluctance to sustain such challenges when the parties have freely agreed upon a comprehensive scheme for private resolution of deferred compensation disputes. E. g., Gomez v. Lewis, 3d Cir. 1969, 414 F. 2d 1312, 1314; Menke v. Thompson, 8 Cir. 1944, 140 F.2d 786, 791; Szuch v. Lewis, D.D.C.1960, 193 F.Supp. 831, 835. See, also Danti v. Lewis, 1962, 114 U.S.App.D.C. 105, 312 F.2d 345-351-52 (Bazelon, C. J., dissenting). We believe this cautious approach to be not only in accord with the weight of authority, but also the better view. Although we have discovered no decision by the Court of Appeals of New York involving precisely the situation involved here, case law concerning analogous committee determinations plainly demonstrates that court’s rejection of an ambitious supervisory role over the employment relationships reflected in these cases. See Gitelson v. Du Pont, 1966, 17 N.Y.2d 46, 268 N.Y.S.2d 11, 215 N.E.2d 336 (brokerage house employee’s retirement rights terminated for “dishonesty”; employee must prove committee exceeded authority or guilty of fraud or bad faith); Bradford v. New York Times Co., supra, 501 F.2d at 61. Cf. Matthews v. Swift & Co., 5 Cir. 1972, 465 F.2d 814, 818.

On the other hand, we have held that clauses deferring resolution to “the Committee’s sole opinion,” and making the committee’s determination “final, binding, and conclusive,” do not necessarily commit unbridled discretion to plan administrators. Marsh v. Greyhound Lines, Inc., 5th Cir. 1974, 488 F.2d 278 (Texas law). See also Hainline v. General Motors Corp., 6th Cir. 1971, 444 F.2d 1250 (apparently Michigan law). Despite their reluctance to interfere with private employment affairs, courts do not step completely aside when the party who would assume the role of sole arbiter is charged with fraud, bad faith, or a grossly mistaken exercise of judgment. E. g., Hurd v. Illinois Bell Tel. Co., N.D. Ill.1955, 136 F.Supp. 125, 154-55 and cases cited, aff’d, 7th Cir. 1956, 234 F.2d 942, cert. denied, Seybold v. Western Elec. Co., 352 U.S. 918, 77 S.Ct. 216, 1 L.Ed.2d 124. This was the thrust of our holding in Marsh, and it constitutes the standard of limited judicial review which we believe the Court of Appeals of New York would observe in this case. See Gitelson v. Du Pont, supra.

We turn now to whether the district court could justifiably have found fraud, bad faith, or grossly mistaken judgment by the Kentile committee on the basis of the evidence adduced below. At the outset, the court recognized the absence of any direct proof of wrongdoing. It reasoned, however, that the four and one-half month delay between plaintiff’s resignation letter and the committee’s warning letter of April 1, 1970 implied bad faith or a failure to exercise honest judgment. The court then concluded that in view of the time and money plaintiff had expended on behalf of Commander during that period, it “[could not] interpret such exercise of discretionary power to be free of ‘bad faith or failure to exercise an honest judgment.’ ” Although the court had previously determined that constitutional procedural due process did not apply to the profit-sharing plan, it then indicated that its findings of bad faith or dishonest judgment were predicated, at least in part, on the plan’s absence of a formal procedure for evaluating issues of competitiveness in a speedier and more open fashion. This shortcoming added, in the court’s opinion, to “an obvious implication of bad faith as well as a failure to exercise an honest judgment.”

/

We have searched the record in vain for substantial evidence of committee misconduct during the complained-of four and one-half month period which formed the principal basis for the district court’s inferences. Except for the correspondence described in Part I, supra, the only probative reflection of the committee’s activities respecting the plaintiff during that period is a letter, dated March 31, 1970, addressed to plaintiff from Mr. Irving Krosner, the committee’s counsel. In this letter Mr. Krosner apologized for the delay, explaining that plaintiff’s resignation letter to Mr. Kennedy had been forwarded to him for investigation on behalf of the committee, but misfiled by a secretary. With this letter Kentile sought to establish a defense of excusable neglect, buttressing the theory with the fact that the committee met and acted immediately thereafter. We do not believe the district court erred in refusing to accord that theory conclusive weight. Krosner’s letter, for one thing, failed to account for the letter of December 17, 1969, in which the plaintiff separately notified the committee of his resignation. On the other hand, we are unable to accept plaintiff’s thesis that proof of the mere fact of delay, from which negligence might be fairly inferable, is logically supportive of the mens rea implicit in a charge of fraud or bad faith. The district court plainly saw these logical difficulties, but sought to circumvent them by first assuming committee action based on “grossly mistaken criteria,” and then implying bad faith or dishonest judgment from the assumption.

In our role as a reviewing court, we are compelled to take a different view of the record. In the first place, the criteria by which the committee found plaintiff to be Kentile’s competitor were not put in issue. Plaintiff simply has never contended that the committee’s judgment was wrong. Nor has plaintiff alleged or shown that the period afforded the committee by the plan for this determination, i. e., two years more or less, resulted from overreaching or unfair bargaining. If the committee could have waited at least two years before reaching a final decision on plaintiff’s competitiveness, then a delay of four and one-half months, without more, was not arbitrary or unreasonable, nor did it evince fraud or bad faith. Next, plaintiff’s attempt to inject an element of detrimental reliance into the case is not well taken. The record clearly reflects that plaintiff left Kentile, went to work for Commander, bought stock in that company, and absorbed business expenses because he believed such a course of action beneficial to his long-term interests. It strains credulity to suggest that plaintiff’s activities on behalf of Commander were taken in reasonable reliance on an expectation that those activities would somehow insure his receipt of Kentile benefits. Even if we assume that the plaintiff did not consider himself Kentile’s competitor, that belief is of no avail to him now. Finally, if the plaintiff had made some showing that the terms and structure of the plan were unreasonable as formulated, or that the committee had failed to exercise the discretion granted to it, we would be more sympathetic to the district court’s suggested revisions. In short, no such showing was made. Plaintiff complains about the committee’s delegation of investigative duties to attorney Krosner, yet he makes no assertion that the delegation was forbidden or excessive under the plan’s provisions. Similarly, he does not contend that the committee lacked authority to convene informally, as long as its decisions were made with the approval of its members. Under these circumstances, it is not the province of the court to superimpose new requirements upon the mechanism adopted by the parties.

We reach our decision that the district court’s findings are clearly erroneous fully aware of the evidentiary problems that plaintiffs face in these cases. Out of this awareness we have held that fraud or bad faith may be proved circumstantially as well as directly, since “direct evidence of bad faith could be easily concealed in the Trust’s internal procedures and the Trustees’ private opinions . . ..” Marsh v. Greyhound Lines, Inc., supra, 488 F.2d at 280. We do not deviate today from that holding. The court below, also in recognition of these problems, apparently utilized the device of a procedural presumption in order to shift to the defendant a burden of going forward with exculpatory evidence. We consider the use of such a trial tool largely a matter within the discretion of the District Judge. Carefully employed, a procedural presumption can be an effective means to “smoke out” a party with peculiar knowledge of the facts, or to further a variety of other judicial and social policies. See Morgan, Presumptions, 12 Wash.L.Rev. 255, 257 (1937). Nonetheless, when correctly applied in this type of common-law civil action, the presumption is procedural only. See generally C. McCormick, Evidence § 345, at 821 (Cleary ed. 1972). It does not shift the burden of proof unless a shift is dictated by an independent rule of law. F.R.Ev. 301, 302, eff. July 1, 1975. Thus, when the time comes to enter findings, those that are based on the presumption must still follow logically and naturally from the basic proof in the lawsuit. Here they do not; hence we reverse.

IV. AWARD OF STATUTORY PENALTIES

In 29 U.S.C. § 308(b), pursuant to which the district court entered a $5,000 judgment against Kentile, Congress entrusted the ultimate propriety of such penalty awards to the court’s discretion. Congress was not silent, however, with respect to the objectives it sought to achieve. Referring to the Act as a whole, § 301(b) defined Congress’ policy as a desire

to protect interstate commerce and the interests of participants in employee welfare and pension benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto.

In a context similar to this case, it has been recognized that “the aim of the Act was narrow, that Congress intended to confine it to a disclosure and reporting function.” Moyer v. Kirkpatrick, E.D.Pa.1967, 265 F.Supp. 348, 350, aff’d, 3d Cir. 1968, 387 F.2d 955.

The text of the Act and its legislative history are entirely consistent with those limited objectives. Thus, by the Act’s express terms, only a “participant or beneficiary covered by such plan” was entitled to the disclosure sought by plaintiff in his April 27, 1970 letter to the Kentile committee. A few days earlier, however, the committee had formally notified the plaintiff that his share of the trust was forfeited. Nevertheless, plaintiff continued to work for Commander until June 23, 1970.

The sole question, then, we. believe, is whether plaintiff remained a “participant” in the plan within the meaning of the Act at the time he sought disclosure from the committee. In the words of § 302(a)(6), was he a “former employee . . . who [was] or [might] become eligible to receive a benefit of any type ... or whose beneficiaries [might] be eligible . ..”? We think not.

The critical fact in our view is the committee’s prior final notice of April 20, which plaintiff acknowledged at his deposition. We simply do not have a case in which plan administrators waited until after receipt of a request for disclosure to notify the employee of ineligibility. Such a case might present different considerations, but we need not speculate about them here. The committee’s notice of April 20, 1970, together with plaintiff’s inability to make an issue over the sixty day-five day amendment of 1958, lead us to the inescapable conclusion that the district court erred in awarding any statutory penalty. Since we base reversal on this ground, we pretermit discussion of whether we would require a showing of prejudice, and if so how much, as prerequisite to a penalty award.

V. ATTORNEY’S FEES

The court below denied plaintiff’s prayer for attorney’s fees. We affirm on the basis of this Circuit’s rule that “attorneys’ fees will not be awarded against a party who has defended successfully.” Sapp v. Renfroe, 5th Cir. 1975, 511 F.2d 172, at 178. We see no rational distinction to be drawn between a party who defends successfully at trial and one who is forced to appeal, except that in the latter instance denial of attorney’s fees to the victor below would seem all the more appropriate.

VI. CONCLUSION

We have carefully examined all other contentions and find them to be without merit. The portions of the district court’s judgment discussed in Parts II and V, supra, are affirmed. The portions discussed in Parts III and IV are reversed, and judgment is rendered in favor of Kentile Floors, Inc., et al., defendant-appellant-cross appellee, as to those portions. The costs of this appeal shall be borne by Patrick Edwin Golden, Jr., plaintiff-appellee-cross appellant.

      . This statute, one of the provisions of the former “Welfare and Pension Plans Disclosure Act” of 1958, 72 Stat. 997, as amended in 1962, 76 Stat. 35, was repealed effective January 1, 1975, by the “Employee Retirement Income Security Act of 1974,” Pub.L. 93-406, 29 U.S.C. .§ 1001 et seq. Section 308(b) was generally superseded by 29 U.S.C. § 1132(c). The new statutes are not involved in this case.

      . Former 29 U.S.C. § 308(c) provided that in an action to enforce the liability described in § 308(b), see note 3, infra, the court “may im its discretion, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the .defendant, and costs of the action.”

      . Former 29 U.S.C. § 308(b) provided:
      Any administrator of a plan [as defined, for present purposes, in § 302(a)(2) as including “any profit-sharing plan which provides benefits at or after retirement”] who fails or refuses, upon the written request of a participant or beneficiary covered by such plan, to make publication to him within thirty days of such request, in accordance with the provisions of section 307 of this title, of a description of the plan or an annual report containing the information required by sections 305 and 306 of this title, may in the court’s discretion become liable to any such participant or beneficiary making such request in the amount of $50. a day from the date of such failure or refusal.

      . The plaintiff originally named Manufacturer’s Hanover as a defendant in this suit, alleging antitrust violations and breach of fiduciary duty. On the antitrust count the district court granted summary judgment in favor of Manufacturer’s Hanover, see 344 F.Supp 807, and we affirmed at 475 F.2d 288 (1973). With respect to the count alleging breach of fiduciary duty, Manufacturer’s Hanover remains involved only indirectly, in that it represented to the earlier panel that it would cooperate with Kentile in carrying out whatever judicial mandate results from the present litigation. 475 F.2d at 291.

      . By a letter dated December 17, 1969, plaintiff gave notice to the committee of his resignation and asked that the committee consider a lump-sum method of payment of amounts contributed to his account over the years by Kentile. The method of payment was a matter committed to the discretion of the committee, and the letter on its face does not indicate that plaintiff was then under the impression that a prompt response would be forthcoming. In fact, plaintiff specifically wrote that “payment . as I understand it, will not be made until two full years have elapsed.” Nor did plaintiff include any language in the letter that might objectively be construed as a request for comment from the committee prior to the passage of the two year waiting period.

      . In addition to items specifically encompassed within the terms “description of the plan” and “annual report,” see former 29 U.S.C. §§ 308(b), 305, 306, plaintiff sought certain other information, including: copies of the annual reports for every year since the plan’s adoption; records of amounts contributed to the plan by Kentile during every year of the plan’s existence; the amount of benefits paid out during every year of the plan’s existence; and an “annual accounting period” breakdown of the number of employees covered by the plan.

      . The minutes refer specifically to Section 3, Subdivision 6 of the former Disclosure Act, 29 U.S.C. § 302(a)(6), which defined a “participant” as “any employee or former employee of an employer or any member of an employee organization who is or may become eligible to receive a benefit of any type from an employee welfare or pension benefit plan . . Section 302(a)(7), which defined the term “beneficiary,” conditioned that status upon designation by a “participant” or by the terms of the plan itself.

      . In his reply brief in this court, plaintiff expressly disclaims reliance on any per se theory of liability.

      . Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911).

      . United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663 (1911).

      . Under plaintiffs theory, the parties to this “contract,” for purposes of the Sherman Act, were himself and Kentile. We assume, of course, that in pari delicto would be disfavored as a defense, if plaintiff’s claim were otherwise meritorious. See Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968); Alders v. AFA Corp., S.D.Fla.1973, 353 F.Supp. 654, 656, aff’d, 5 Cir. 1974, 490 F.2d 990.

      . Cf. Graham v. Hudgins, Thompson, Ball & Assoc., Inc., N.D.Okla.1970, 319 F.Supp. 1335.

      . Had it done so, we might be more inclined to view the forfeiture as a liquidated damages remedy for breach of an implied covenant not to compete. As in the Bradford case, supra, the covenant itself could be examined for temporal, geographic, and economic reasonableness. Then, depending on the limitations of the covenant’s reasonable scope, the damages aspect could be scrutinized in terms of whether the contractually-set forfeiture constituted an excessive tribute for the privilege of competing. An analytical thesis which distinguishes between vested and unvested interests has more than technicality to support it. In the case of forfeiture of a vested interest, the restraint upon the employee’s freedom to follow a chosen vocation is more immediate, since it impacts directly upon what is, by the parties’ mutual agreement, his property instead of the employer’s or the trust’s.
      The only suggestion in this case that plaintiff’s interest in the Kentile plan had vested prior to the forfeiture is an argumentative assertion in the statement of facts preceding his brief. Brief for Appellee-Cross Appellant at 15. The district court rendered no opinion on the matter. In any event, as a matter of construing the written terms of the plan, we have independently satisfied ourselves that plaintiff’s interest remained entirely the property of the trust until the committee should direct payment. As pertinent, the plan provided thusly:
      Article IV, Section 6. The fact that there shall be allocated to an account of a Member a share in the contribution made by the Employer, and the forfeitures for a particular Taxable Year, shall not vest in any such Member any right, title, or interest in and to the Trust Fund or any share or part thereof, except at the time or times and upon the terms and conditions expressly set forth in this Plan, (emphasis ours). ******
      Article VII, Section 4. Upon Voluntary Discontinuance of Employment. If a Member shall voluntarily discontinue his employment with the Employer at a time more than 10 full years from the date upon which he became a Member of this Plan, his share of the Trust Fund shall become payable to him as provided in Section 9 of this Article.
      Section 9. Method of Payment. A Member’s share of the Trust Fund shall be paid or made available by the Trustee from the Trust Fund only upon direction of the Committee, and at the time and in the manner provided in this Section. . . . Section 9, subsection (e): Notwithstanding anything to the contrary contained in the preceding paragraphs of this Section, the share of a Member who voluntarily discontinues employment shall not be paid to him, in whole or in part, until at least two full years have elapsed from the date of his voluntary discontinuance of employment, or, in the Committee’s sole discretion, until such Member shall have reached normal retirement age. (emphasis ours).
      From these provisions it is clear that the plan operated by its express terms and the discretion conferred upon the committee to postpone both the vesting and payment of plaintiff’s interest prior to the declaration of forfeiture. Contrast the plans in Rochester Corp. v. Rochester, supra; Siegel v. First Pennsylvania Banking & Trust Co., E.D.Pa.1961, 201 F.Supp. 664.

      . In an effort to avoid this result, plaintiff relies heavily on Muggill v. Reuben H. Donnelley Corp., 1965, 62 Cal.2d 239, 42 Cal.Rptr. 107, 398 P.2d 147. The Muggill opinion by Justice Traynor, though enlightened and persuasive, is nevertheless distinguishable because there the employee’s rights under a pension plan had vested by virtue of his retirement. Furthermore, Muggill was decided under a California statute which prohibited devices restraining persons from pursuing a chosen trade or business. In contrast, under the sweepingly-general terms of the Sherman Act we are committed by Addyston Pipe to the common-law.

      . Plaintiff is a citizen of Georgia and Kentile is a New York corporation with principal offices there. The parties are in accord on the applicability of New York substantive law under Georgia conflicts practice, inasmuch as the profit-sharing plan was prepared in New York and administered in and from New York.

      . See note 13, supra.

      . See note 5, supra.

      . Under Article VIII, Section 6 of the Kentile plan, the committee’s decision on a matter within its authority is “final, binding, and con-elusive upon the Employer, each Employee, Member, beneficiary and the Trustee and every other person or party interested in or concerned with this Plan or the Trust Fund.”

      . This ruling was not appealed.

      . Although it appears that we are the first court to squarely so hold, other cases have refused to find misconduct on the part of plan administrators even though similar delays had occurred. These delays appeared to play no part in the courts’ decisions. See, e. g., Patterson v. UMW Welfare and Retirement Fund, E.D.Tenn.1971, 346 F.Supp. 11 (five months); Pavlovscak v. Lewis, W.D.Pa.1960, 190 F. Supp. 205, aff’d, 3d Cir. 1961, 295 F.2d 39 (three months); Szuch v. Lewis, D.D.C.1960, 193 F.Supp. 831 (five months). We have discovered no case in which a mere pre-denial delay has been held probative of fraud, bad faith, or grossly mistaken judgment.

      . In the absence of appropriate evidence and contentions, we need not and do not decide whether two years might be an unreasonably lengthy period.

      . See note 3, supra.

      . See note 7, supra.


source: Caselaw Access Project

author: PER CURIAM: LUMBARD, Circuit Judge

license: Public Domain

text:
    Peggy BURTON, Plaintiff-Appellant, v. CASCADE SCHOOL DISTRICT UNION HIGH SCHOOL NO. 5 et al., Defendants-Appellees.
    No. 73-1568.
    United States Court of Appeals, Ninth Circuit.
    March 28, 1975.

      Charles F. Hinkle (argued), Portland, Or., for plaintiff-appellant.
    Robert W. DeArmond, Salem, Or., for defendants-appellees.
    Before LUMBARD, MERRILL and WRIGHT, Circuit Judges.

       Senior Circuit Judge of the Second Circuit.

   OPINION

PER CURIAM:

This is an appeal by a non-tenured, homosexual schoolteacher from a district court order granting her damages and attorney fees for what was adjudged her wrongful dismissal, but refusing to reinstate her to her old position. We affirm.

Appellant Peggy Burton began to teach at Cascade High School in July 1970. She was in the second month of her second full year as a teacher of biology, earth sciences, ecology, consumer education, and business mathematics, and as supervisor and referee of girls’ sports activities. The defendant Federico, the school principal, confronted her with information coming to him from the mother of a student that appellant was a homosexual. At a conference with Federico and, again at an appearance before a special school board meeting, appellant acknowledged that she was a “practicing homosexual.”

At the meeting on October 18, 1971, a resolution was adopted suspending Ms. Burton upon “recommendation of the administration based on her admitting to be a homosexual.” Later, allegedly on advice of counsel, the board revised its October 18 resolution to read:

Peggy Burton be dismissed and the contract terminated as a teacher in the district because of her immorality of being a practicing homosexual.

This was done in order that the dismissal might comply more closely with Ore.Rev. Stat. § 342.530(l)(b), which before its repeal in 1973 provided:

Dismissal of teachers. (1) During the period of the contract . . . the district school board shall dismiss teachers only for:
(b) Immorality;

Plaintiff initiated this action under 42 U.S.C. § 1983, seeking declaratory relief that defendants had violated her civil rights by their dismissal of her on account of her status as a practicing homosexual. She also sought damages and reinstatement to her teaching position. The district court sustained her claim that the dismissal was improper because section 342.530(l)(b), the statute upon which it was based, was unconstitutionally vague. However, the court limited its relief to an award of money damages amounting to the balance of her salary for the teaching year 1971 — 72, one-half of her salary for the following teaching year, and $750 for attorney fees and costs, along with an order that the school expunge from its board meeting records and personnel files all references to plaintiff’s dismissal. The court refused to order reinstatement to the teaching position.

Plaintiff appealed the district court’s refusal to order reinstatement, and defendants cross-appealed from the money judgments in plaintiff’s favor. Heretofore, on November 13, 1974, we dismissed the cross-appeal for failure to file a brief within the time prescribed by rule, or at all.

This leaves only the question whether the district judge erred in refusing to order that the plaintiff be returned to her old position. In analyzing this question, we note that plaintiff had neither tenure, nor even sufficient seniority to qualify for consideration for a three-year contract after the school year ended, under Ore.Rev.Stat. § 342.508 (1971). Under Oregon law, her only “rights” respecting reemployment at the end of the 1971 — 72 school year, had the school board not wrongfully dismissed her during the period of her contract, would have been governed by Ore.Rev.Stat. § 342.513(1) (1974), which provides:

342.513 Renewal or nonrenewal of contracts for following year. (1) Each district school board shall give written notice by March 15 of each year to all teachers ... in its employ who are not under tenure or who are not eligible for a three-year contract under ORS § 342.508. . [of] the renewal or nonrenewal of the contract for the following school year. In case the district school board does not renew the contract, the material reason therefor shall, at the request of the teacher . . . , be spread upon the records of the school district and the board shall furnish a statement of the reason for nonrenewal to- the teacher . . If any district school board fails to give such notice by March 15, the contract shall be considered renewed for the following school year at a salary not less than that being received at the time of renewal. . .

Appellant was awarded the full salary she would have received for that part of her contract following her unlawful dismissal pursuant to an unconstitutional statute. We cannot say that the district judge abused his broad equitable discretion in not also ordering that Ms. Burton be allowed to return to her teaching post for a period at least equivalent to the unserved portion of her contract. The trial judge faced a difficult task of balancing the appellant’s interest in completing her wrongfully terminated one-year contract against the disruption which he may have felt her reinstatement for a few months would inevitably cause to the school district, the school’s staff, the student body, and the community in light of the long-standing nature of the controversy.

Reinstatement of wrongfully dismissed teachers has occasionally been required, without consideration of whether or not they were tenured. This extraordinary equitable remedy has commonly been imposed in factual situations involving racial discrimination, the special target of federal and state legislation (and of three constitutional amendments). See, e. g., Franklin v. County School Board, 360 F.2d 325, 327 (4th Cir. 1966) (where black teachers only were dismissed upon merger of two previously segregated schools, priority rehiring rights and damages were ordered due to the discriminatory pattern of the dismissals).

The other common factual situation in which reinstatenment has been required involves the case in which dismissal appears to have been in reprisal for the legal exercise of free expression in a manner critical of the public employer. See Pred v. Board of Public Instruction, 415 F.2d 851 at 859 (5th Cir. 1969). Cf. Stewart v. Pearce, 484 F.2d 1031 (9th Cir. 1973).

However, even courts which have ordered reinstatement have nonetheless intimated that the appropriate remedy may be influenced by a careful weighing of all facts and circumstances. On the facts presented in the case before us, we cannot say that an award limited to monetary damages was inadequate for a wrongful dismissal, under an unconstitutionally vague statute, of a nontenured teacher.

The common thread running through the cases in which reinstatement was directed after appellate review seems to be that such relief is necessary, not only to redress injury to the complainant but also to discourage school systems from taking similar action against other teachers in the future. As noted previously, we cannot say that plaintiff was denied adequate compensation for her claimed interests in finishing the school year. Nor can we say that the district judge erred in concluding impliedly that declaratory relief and damages would provide a sufficient deterrent to future board attempts to dismiss teachers serving annual appointments on the basis of “immorality.”

Our holding is not inconsistent with Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). There, the Supreme Court suggested that a refusal to rehire a nontenured teacher on the basis of “immorality” would at least require a hearing at which the teacher had an opportunity to refute this charge which might stigmatize his reputation in the community. Here, Ms. Burton was given a hearing at which she freely admitted her homosexuality, and the district court repudiated the school board’s attempt to justify its dismissal of her by characterizing this condition as “immoral.” The basis for any possible stigma has been eliminated.

Appellant was granted full pay for the loss resulting from the wrongful termination of her one-year contract. And although the parties have stipulated that Ms. Burton was an “adequate teacher,” we cannot say that her chances of reemployment were such as to warrant our finding the same type of “property interest” in reemployment which might require reinstatement of a tenured teacher, or one under longer-term contract with the district. We hold only that, given the speculative nature of any expectation of reemployment appellant may have had, the district judge’s award of an additional half-year’s salary (above and beyond the back pay award for the unserved portion of her original contract) seems generous, and well within the lower bounds of his remedial discretion.

The judgment of the district court is affirmed.

LUMBARD, Circuit Judge

(dissenting):

I dissent regarding the relief to which Ms. Burton is entitled.

Reinstatement is the appropriate remedy for an individual who has been removed from her job in violation of the Constitution. Most courts have not treated reinstatement as an “extraordinary equitable remedy.” In fact, they have ordered reinstatement as a matter of course, even in cases involving nontenured teachers. See, e. g., Gieringer v. Central School District No. 58, 477 F.2d 1164 (8th Cir.) (reversing unpublished district court decision), cert. denied, 414 U.S. 832, 94 S.Ct. 165, 38 L.Ed.2d 66 (1973); Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973), affg. 346 F.Supp. 396 (D.Neb.1972); Rolfe v. County Board of Educ., 391 F.2d 77 (6th Cir. 1968), affg. 282 F.Supp. 192 (E.D.Tenn.1966); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) (en banc) (reversing 242 F.Supp. 721 (E.D.N.Car.1965)), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (1967); Chase v. Fall Mountain Regional School Dist., 330 F.Supp. 388 (D.N.H. 1971); Hanover Twp. Fedn. of Teachers v. Hanover Community School Corp., 318 F.Supp. 757 (N.D.Ind.1970), affd., 457 F.2d 456 (7th Cir. 1972); McGee v. Richmond Unified School Dist., 306 F.Supp. 1052 (N.D.Cal.1969). Cf. Doherty v. Wilson, 356 F.Supp. 35 (M.D.Ga.1973).

The majority seems to rely on three arguments to uphold the district court’s refusal to reinstate Ms. Burton. First, it emphasizes her lack of tenure which meant that she had no right to a renewal of her teaching contract. This fact alone certainly does not preclude reinstatement, as the cases cited above amply demonstrate. Moreover, Ms. Burton did have some rights under her contract with the school system. Unlike the teacher in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), in which the Supreme Court held that a hearing was not required when a school system decided not to renew a non-tenured teacher’s contract, Ms. Burton had the right under Oregon law to demand written reasons for nonrenewal of her contract. Ore.Rev.Stat. § 342.-513(1) (1974). While the school board would have wide discretion in deciding whether to renew Ms. Burton’s contract, the statutory requirement that it provide reasons for nonrenewal precludes it from having completely unfettered discretion since the board could not give a constitutionally unacceptable reason. E. g., Perry v. Sindermann, 408 U.S. 593, 598, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972) (“[T]he nonrenewal of a nontenured public school teacher’s one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights.”); Board of Regents v. Roth, supra, 408 U.S. at 573-574, 92 S.Ct. at 2707 (certain procedural safeguards are required if state action imposes a “stigma or other disability that foreclose^] • freedom to take advantage of other employment opportunities” or puts a “person’s good name, reputation, honor, or integrity” at stake). Thus it is inaccurate to say that Ms. Burton had no rights beyond the one-year term of her contract. But even if she had no rights, that does not mean that reinstatement is inappropriate; courts have often reinstated non-tenured teachers.

Second, the majority contends that it was permissible perhaps even appropriate, for the district judge to balance plaintiff’s interest in the vindication of her constitutional rights against the disruption and antagonism her reinstatement would cause. I disagree. It is clearly inappropriate to consider community resentment in deciding whether to reinstate a person to a position from which she was unconstitutionally removed. Sterzing v. Fort Bend Independent School Dist., 496 F.2d 92, 93 (5th Cir. 1974) (per curiam) (“Enforcement of constitutional rights frequently has disturbing consequences. Relief is not restricted to that which will be pleasing and free of irritation.”); Langford v. City of Texarkana, 478 F.2d 262, 267-268 (8th Cir. 1973). If community resentment was a legitimate factor to consider, few Southern school districts would have been integrated. One of the major purposes of the Constitution is to protect individuals from the tyranny of the majority. That purpose would be completely subverted if we allowed the feelings of the majority to determine the remedies available to a member of a minority group who has been the victim of unconstitutional actions.

Finally, the majority asserts that the monetary award given to Ms. Burton by the district court is adequate. Once again I disagree. It is questionable whether a monetary award is sufficient to deter the school board from taking similar unconstitutional action in the future. After all, what the board wanted was to be rid of Ms. Burton and the district court judgment allows it to accomplish that. If a similar situation arises in the future it might well conclude that it would be willing to pay a few thousand dollars in order to be rid of an unwanted teacher.

However, the real issue is not whether the remedy imposed here will deter the school board from taking similar action in the future. The real issue is how best to vindicate Ms. Burton’s rights. She had a contract to teach for one year. The only way to restore to her what she lost is to require the school board to reinstate her as a teacher for one year. As the Fifth Circuit noted in Pred v. Board of Public Instruction, 415 F.2d 851, 856 (1969): “The right sought to be vindicated is not a contractual one . . What is at stake is the vindication of constitutional rights . . .” The Fourth Circuit has concluded: “There was no lawful basis for the . discharges, and the plaintiffs are entitled to be restored to the positions they occupied when they attempted to assert their rights. . . . Otherwise they would not be made whole, and similar discriminatory discharges would be encouraged.” Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 (1966) (en banc), revg. 243 F.Supp. 403 (E.D.Va.1965).

I would remand the case to the district court with instructions that the board be directed to reinstate Ms. Burton for a one-year period at the beginning of the next school year.

      . Judge Lumbard’s dissenting opinion finds in the language of § 342.513 a judicially cognizable interest in reemployment, since “the statutory requirement that it provide reasons for nonrenewal precludes it from having completely unfettered discretion since the board could not give a constitutionally unacceptable reason.” However, the Board could not refuse to rehire Ms. Burton for a constitutionally unacceptable reason even if it were allowed to do so by Oregon law.
      Conversely, so long as nothing under the applicable Oregon statutes prevented the Board, acting in good faith, from refusing to rehire Ms. Burton for any constitutionally acceptable reason, any interest that she might have in renewal of her contract would be purely speculative. Her “adequacy” as a teacher would be no guarantee of retention. We said recently in Burdeau v. Trustees, 507 F.2d 770, 774 (9th Cir„ 1974):
      “Appellant has pointed to nothing in the statutes, or in the Statewide rules, or in the regulations of the particular institution which state that if he meets certain standards his reemployment is guaranteed. Until tenure is obtained he may equal or exceed minimum requirements for evaluation and still the school may prefer to employ someone else for the position he seeks.” 507 F.2d at 774.
      The trial judge correctly refused to speculate whether the Board would have ultimately refused to rehire appellant for some unconstitutional reason, had she not been prematurely dismissed.

      . Of course, the grant or withholding of remedial relief is not wholly discretionary with the trial judge. Cf. e. g., Union Tool Co. v. Wilson, 259 U.S. 107, 111-112, 42 S.Ct. 427, 66 L.Ed. 848 (1922) (Brandeis, J.), “The private or public rights that the decree sought to protect are an important measure of the remedy." McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949).
      Nevertheless, the trial judge is in the better position to determine whether a remedy will adequately protect a litigant’s legally cognizable interests. See discussion in text infra.
        He is also better able to assess, in a case such as this, whether his determination that the statutory basis relied upon by the school board was constitutionally defective and demanded an award of damages to the wrongfully dismissed teacher, will be a sufficient deterrent to future board actions impairing the school district’s contractual obligations.

      . Appellant suggests that
      “[t]he district court may have made the not unreasonable assumption that some degree of personal antagonism inevitably exists where a person is discharged from his teaching assignment for reasons which are based, at bottom, on the prejudices of school officials.
      (Br. of Appellant at 16.)
      However, she argues that even assuming the correctness of the district court’s conclusion that her return to the classroom “wouldn’t work out,” this still would not justify denying her reinstatement. She notes that similar antagonism would also exist whether the teacher is fired because she criticizes the school board, because she is black, or because her religious convictions offend the majority of the townspeople. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 234, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring in part and dissenting in part). Yet in such situations, some appellate courts have found that back pay may not obviate the defendants’ obligation to reinstate plaintiff, for “[t]he right sought to be vindicated is not a contractual one, nor could it be since no right to reemployment existed. What is at stake is the vindication of constitutional rights . . .” Pred v. Board of Publ. Instruction, 415 F.2d 851, 856 (5th Cir. 1969).
      In this case, however, the nature of the constitutional right sought to be vindicated is not such as to compel reinstatement frequently ordered in response to racially motivated dismissals, or to those aimed at punishing the exercise of free speech.
      Ms. Burton challenged the vagueness of the statute which was relied upon to justify her dismissal. The district court upheld her contention and ruled the statute unconstitutional. At the same time the court awarded damages in excess of the amount due on the unserved portion of her contract. As discussed in text, infra, the district judge did not abuse his discretion in finding that his order and award afforded both adequate relief for the appellant and adequate protection against subsequent attempts to dismiss teachers under provisions such as § 342.530(l)(b).

      . See Pred v. Board of Public Instruction, supra, at 859:
      “For on the facts must rest the determination of whether the denial of a continuing contract was (a) a reprisal for these actions in expression of ideas, thoughts, or associations rather than permissible nondiscriminatory professional evaluations and, if so, (b) whether under the circumstances in relation to the reasonable demands of a system of organized responsible learning these actions were protected. On a finding of (a) and (b) the remedy (c) might well also depend on all of the facts.”

      . See Burdeau v. Trustees, 507 F.2d 770, 773 (9th Cir. 1974). We do not address the question whether the school district could refuse to rehire appellant, or whether any other school system could refuse to give her a teaching position, solely on the basis of her homosexual inclinations. Compare McKeand v. Laird, 490 F.2d 1262, 1265 .(9th Cir. 1973) (dictum) and Andrews v. Drew Municipal Separate Sch. Dist., 371 F.Supp. 27 (N.D.Miss.1973) with Wentworth v. Schlesinger, 160 U.S.App.D.C. 172, 490 F.2d 740, 754 (1973) and Safransky v. State Personnel Bd., 62 Wis.2d 464, 215 N.W.2d 379 (1974). See also Perry v. Sindermann, 408 U.S. 593, 597-598, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). But see Pettit v. State Board of Education, 10 Cal.3d 29, 36 n. 7, 109 Cal.Rptr. 665, 670 n. 7, 513 P.2d 889, 894 n. 7 (1973).

      . Cf. Jablon v. Trustees, 482 F.2d 997 (9th Cir. 1973).

      . See note 1 supra.

      . The fact that Ms. Burton was discharged pursuant to an unconstitutional statute and was not discriminated against on racial grounds or was not fired for exercising her First Amendment rights does not mean that she is entitled to a lesser sort of remedy than would be available in racial discrimination or First Amendment cases. All violations of constitutional rights should receive adequate redress, which in this case requires reinstatement.

      . The court assumes that there would be disruption and antagonism, but there is no evidence that this would be so. On the contrary, statements made by appellant’s counsel at argument indicate that this would not be so as to the student body.

      . The case cited by the majority for the proposition that all circumstances should be weighed to determine whether reinstatement is appropriate, Pred v. Board of Public Instruction, 415 F.2d 851, 859 (5th Cir. 1969), primarily holds that a careful weighing of competing interests is required to determine whether the First Amendment rights of a teacher critical of the school system have been violated when the teacher is discharged. I do not think that it is the view of the Fifth Circuit that a weighing of interests is appropriate in determining a remedy once a constitutional violation has been established. See Sterzing v. Fort Bend Independent School Dist., supra.


author: HAYS, Circuit Judge:

text:
    The NEW YORK CITY JAYCEES, INC., Plaintiff-Appellee, v. The UNITED STATES JAYCEES, INC., and New York State Jaycees, Inc., Defendants-Appellants.
    No. 343, Docket 74-1916.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 20, 1975.
    Decided March 7, 1975.

      Robert J. Corber, Washington, D. C. (Steptoe & Johnson, Washington, D. C., on the brief, Ronald S. Cooper, Virginia M. Dondy, and Howard H. Stahl, Washington, D. C., of counsel), for defendants-appellants.'
    Sheila Maura Kahoe, New York City (Doman & Beggans, New York City, on the brief, Nicholas R. Doman and Ronald E. Pump, New York City, of counsel), for plaintiff-appellee.
    Before WATERMAN, HAYS and MULLIGAN, Circuit Judges.
   HAYS, Circuit Judge:

This action was brought by the New York City Jaycees (“Local”) seeking injunctive relief to prevent revocation of its charter by the United States Jaycees (“National”) and the New York State Jaycees (“State”). The threat of charter revocation was made in response to the adoption by Local of a bylaw which admitted women to membership and was therefore inconsistent with the national bylaws restricting membership to males. Local contended that revocation of its charter for noncompliance with National’s policy of sex discrimination violated the Fifth and Fourteenth Amendments to the Constitution. The United States District Court for the Southern District of New York held that National, by virtue of its receipt of substantial government funding, its assumption of certain civic functions, and its tax exempt status, was subject to constitutional limitations prohibiting discrimination and granted plaintiff’s motion for a preliminary injunction. We reverse.

The United States Jaycees is a national organization with headquarters in Tulsa, Oklahoma. Its purpose is to provide services to affiliated state organizations and local chapters. Although originally organized for the sole purpose of promoting the business interests of its members, the Jaycees in recent years has shifted its program emphasis to providing community services. In support of its various civic projects, National receives federal funds which in fiscal year 1974 totalled $1,143,000, or 31.4% of the total Jaycee budget of $3,639,000. Approximately half of the federal funds are received in the form of direct grants to National; the remaining federal funds are obtained through contracts between the federal government and an autonomously functioning affiliate, the United Jaycees Foundation. The federal funds are earmarked for specific civic projects and none are utilized for indirect administrative costs of the United States Jaycees. Both the United States Jaycees and the United Jaycees Foundation are tax exempt.

Plaintiff concedes, as it must, that private action is immune from the restrictions of the Fifth and Fourteenth Amendments. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). However, plaintiff claims that National’s receipt of federal funds and tax exemptions, as well as its performance of civic functions, constitutes state action sufficient to subject it to scrutiny under the constitutional standard. We disagree.

The mere existence of government ties to a private organization is not sufficient to support a finding of state action. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). As this court stated in Powe, “[t]he state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury.” 407 F.2d at 81. The Supreme Court has recently reaffirmed the principle that the determination of state action must be based on a particularized inquiry focusing on whether there is “a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Company, 419 U.S. 345, 349, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). In this case the requisite connection between government and the offending activity has not been shown. Plaintiff does not charge discrimination in the operation of federally funded Jaycee programs; indeed such a could not be supported since not only do women participate both in the selection of local recipients for funding and in the implementation of programs, but also the benefits of all federally funded Jaycee programs are distributed without regard to sex or other impermissibly discriminatory criteria. Plaintiff’s constitutional challenge is addressed solely to the internal membership, policies of the Jaycees; yet plaintiff has made no showing that the government is substantially, or even minimally, involved in the adoption or enforcement of these policies.

This is not a case where “[t]he State has so far insinuated itself into a position of interdependence with [the private enterprise] that it must be recognized as a joint participant in the challenged activity . . ..” Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961). In contrast, the government in this instance has limited itself to financial support of certain Jaycee programs, leaving the responsibility for program content, administration, management and performance in the hands of the grantees and contractors. The mere receipt of public funds does not convert the activities of a private organization into state activities. Wahba v. New York University, 492 F.2d 96 (2d Cir.), cert. denied, 419 U.S 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (Oct. 15, 1974); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1973); Powe v. Miles, 407 F.2d 73 (2d Cir. 1968); Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968). The lack of government involvement in discriminatory internal policies is particularly clear in a case such as this where the funds provided by federal contracts and grants do not sustain the general operations of the organization but rather are funnelled directly into discrete projects from which benefits are extended to the public without discrimination of any kind.

Similarly the grant of tax exemptions to the Jaycees does not constitute significant government involvement in the organization’s exclusionary membership policy. As the Supreme Court has pointed out in the context of a First Amendment challenge to tax exemptions granted to religious organizations, a tax exemption does not constitute government “sponsorship” but instead “creates only a minimal and remote involvement.” Walz v. Tax Commission, 397 U.S. 664, 675-76, 90 S.Ct. 1409, 1415, 25 L.Ed.2d 697 (1970). See also Marker v. Shultz, 158 U.S.App.D.C. 224, 485 F.2d 1003, 1005 — 07 (1973). No genuine nexus between the tax exemption and the complained of internal membership policies has been shown and in its absence, there is no constitutional wrong.

Plaintiff’s reliance upon the so? called “public function” doctrine whereby private persons performing certain functions traditionally reserved to the state may become subject to constitutional restrictions is also misplaced. That doctrine is a severely limited one and “the fact that government has engaged in a particular activity does not necessarily mean that an individual entrepreneur or manager of the same kind of undertaking suffers the same constitutional inhibitions.” Evans v. Newton, 382 U.S. 296, 300, 86 S.Ct. 486, 489, 15 L.Ed.2d 373 (1966). In fact this court has expressly recognized the “value of preserving a private sector free from the constitutional requirements applicable to government institutions.” Wahba v. New York University, 492 F.2d 96, 102 (2d Cir. 1974). The public function theory applies only to those services which are “so clearly governmental in nature that the state cannot be permitted to escape responsibility by allowing them to be managed by a supposedly private agency.” Powe v. Miles, 407 F.2d 73, 80 (2d Cir. 1968). Furthermore, the Supreme Court in its recent decision in Jackson v. Metropolitan Edison Company, supra, has suggested that the service involved must not only be one which is traditionally the exclusive prerogative of the state but that it must in addition be one which the state itself is under an affirmative duty to provide. Id., 419 U.S. at 351, 95 S.Ct. at 454. In Jackson, the Court specifically declined to find state action on a public function theory despite the fact that defendant was a utility company, provided an essential public service, enjoyed a state-protected partial monopoly and was subject to extensive regulation by the state. Certainly the public function argument is far less persuasive in the situation before us here. Moreover, as has been pointed out, plaintiff’s claim does not relate in any way to the public services provided by the Jaycees, but only to the internal membership policies of the organization.

We therefore find ourselves in agreement with the Eighth and Tenth Circuits which, in reviewing suits brought by other complainants against the internal policies of the Jaycees, have similarly held that the requisite state action was lacking. Junior Chamber of Commerce of Kansas City, Missouri v. Missouri State Junior Chamber of Commerce, et al., 508 F.2d 1031 (8th Cir. 1975); Junior Chamber of Commerce of Rochester, Inc., et al. v. United States Jaycees, et al., 495 F.2d 883 (10th Cir.), cert. denied, 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301 (1974). The Jaycees is a private organization acting in connection with its own enterprise, and the federal courts have no power to grant an injunction prohibiting its discriminatory membership policies.

The order of the district court is reversed.

      . Although State has been a named defendant from the commencement of this suit, it has taken no active role in any of the proceedings; the appellants will be referred to as National unless otherwise noted.

      . Before it amended its bylaws, Local was advised by the New York Attorney General that he would construe failure to do so as a violation of N.Y. Executive Law, McKinney’s Consol.Laws, c. 18, § 296, subd. 6.
      After commencement of this action, National proceeded to revoke Local’s charter but suspended the effectiveness of the revocation pending the determination of this action.

      . Currently there are 6,500 local chapters in the 50 states and the District of Columbia with approximately 325,000 members. In addition there are international affiliates in 82 countries.

      . The remaining $2,496,000 is derived from private sources.

      . The United States Jaycees is exempt pursuant to Section 501(c)(4) of the Internal Revenue Code of 1954. The Foundation is exempt from federal taxation by reason of Section 501(c)(3) of the Internal Revenue Code of 1954.

      . Selections for funding are made exclusively by the National Advisory Council of Together, Inc., a separately incorporated consulting organization. Four of the sixteen members of the Council are women.

      . Attorneys for the Office of Economic Opportunity investigating whether there was compliance with a provision of the largest federal grant expressly prohibiting sex discrimination, similarly concluded that there was no sex discrimination in implementation of the grant.

      . Although four of the sixteen members of the National Advisory Council of the consulting organization, Together, Inc., are representatives of government agencies, the Council has no involvement in the internal membership policies of the Jaycees. See n.6 supra.


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Kenneth W. CRANFORD, Petitioner-Appellant, v. Felix RODRIGUEZ, Warden, Respondent-Appellee.
    No. 74-1223.
    United States Court of Appeals, Tenth Circuit.
    March 18, 1975.

      Jack L. Love, Federal Public Defender, Albuquerque, N. M., for petitioner-appellant.
    Andrea R. Buzzard, Asst. Atty. Gen., Santa Fe, N. M., for respondent-appellee.
    Before BREITENSTEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

In this appeal from a denial of petitioner’s application for a writ of habeas corpus, he challenges the validity of a confession which was taken in Juarez, Mexico by a New Mexico officer. (He claims that it was coerced and in violation of the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).) He also questions the sufficiency of the hearing which was given on the question of voluntariness of the confession in state trial court. He further contends that the federal district court erred in failing to hold an evidentiary hearing and in relying entirely on the transcript of the proceedings in the state court. \

It is unnecessaryNto recount the sordid facts in detail. In general, the evidence established that the defendant had shot and killed the victim after the latter had picked him up on the highway in his automobile and trailer and had paid him for the performance of certain work. The evidence showed that the petitioner forced the victim to go to a secluded area in the Sandia Mountains near Albuquerque, New Mexico. He shot him and then took the victim’s vehicle and money and proceeded to Juarez, Mexico. He was arrested there.

The homicide occurred on January 14, 1971. In the early morning of January 18, 1971, petitioner was arrested by Mexican Police in Juarez, Mexico, at the request of Albuquerque Police Officer Garcia, who was also present when the arrest was made. Originally, petitioner was taken into custody because he was in possession of a stolen vehicle. However, the investigation proceeded from the outset on the homicide. There was a series of questionings. He was first questioned on Monday afternoon, January 18, by the Mexican Police. This produced very little. On that night, according to petitioner’s testimony, he was taken out of the jail by the police and threatened. The policemen denied this. The next morning, Tuesday, January 19, two FBI officers questioned him and apprised him of his Miranda rights. They presented the waiver form to him, crossing out the line respecting appointment of a lawyer and inserting instead that if he wished to consult the American Consulate the latter would be advised of his detention and “you will be given the opportunity to talk to a Consulate representative.”

Petitioner also testified that he was beaten by the jailer on Tuesday after the interview and by Mexican Police Officers on Tuesday night and that he was subjected to burning of his person with an electrode. The confession, the validity of which is challenged, was given on Wednesday morning to New Mexico Officer Garcia. This is a lengthy question and answer statement which goes into minute detail as to the occurrences prior to, during and subsequent to the shooting of the victim.

At the state court trial a full hearing was held on the voluntariness of the confession. The testimony of all of the officers and of the defendant was taken. This fills an entire volume of our record. This hearing was incident to a motion to suppress. At the conclusion of this hearing, the trial court said: “The Court feels, however, that it cannot say, as a matter of law, that the statement which was given by Mr. Cranford should be suppressed and for that reason your motion to suppress is denied.” A formal order denying the motion provided:

This matter coming before the Court upon the Defendant’s Motion to Suppress any and all statements whether written, recorded or oral made by the Defendant, and the Court having heard testimony and argument of counsel and the Court having determined that the statements oral and written made by the Defendant were obtained in compliance with legal requirements and are therefore admissible with proper instructions to the jury.
IT IS THEREFORE ORDERED that the Motion be denied.

The Supreme Court of New Mexico affirmed the conviction of first degree murder. See State v. Cranford, 83 N.M. 294, 491 P.2d 511 (1971), cert. denied, 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98 (1972).

I.

The present petition was filed pursuant to 28 U.S.C. § 2254. The district court held a complete hearing based on the state court record. Petitioner first complained about the failure of the court to hold a new evidentiary hearing. Undoubtedly the court in its discretion could have taken evidence had it been convinced that the constitutional issues had not been fully tried in state court or that there existed relevant evidence which was not presented. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). However, we disagree with the contention that the court was compelled to hold an independent evidentiary hearing. 28 U.S.C. § 2254(d) presumes the determination of the state court to be correct unless the applicant establishes (1) that the merits of the factual dispute were not resolved in the state court hearing, or (2) that the fact finding procedure employed by the state court was not adequate to afford a full and fair hearing, or (3) that the material facts were not adequately developed at the state court hearing. A showing such as that required by the Act of Congress was not made by the applicant and so the presumption stands.

II.

We disagree with the further contention of petitioner that the state court hearing did not satisfy the standards for a fact finding hearing established in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). See Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). The exception taken is that the state trial court did not make extensive findings of fact. We view the action of the trial judge as substantially complying with the requirements of law. A ruling was given from the bench and this was later reduced to writing. The entire issue was whether at the hearing the confession was the product of compulsion. There was a conflict in the evidence on this and the trial court rejected the testimony of petitioner. The court’s failure to make detailed findings does not detract from its ruling which clearly accepted one version of the testimony and rejected another.

Based on an examination of the 179-page transcript evidencing the state court proceedings, we are of the opinion that the trial judge adequately considered and determined the voluntariness issue. The federal district court carefully considered the record of the proceedings and determined that the trial judge had complied with the law.

III.

On the issue of the inadequacy of the admonitions, the petitioner contends that the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) was violated because the warning given him did not offer to obtain counsel or to employ counsel for him if he could not afford an attorney. The New Mexico Supreme Court took the position that the Miranda doctrine did not even apply outside the United States. We disagree with this. Here the Mexican Police were acting on behalf of Officer Garcia and the State of New Mexico. We are mindful that Officer Garcia went to Juarez, a border town, in an effort to extradite petitioner to Albuquerque, New Mexico. Our assumption is that the Miranda doctrine would apply in these circumstances. At the same time, we recognize that it was not possible to get an attorney and yet this should not mean that while the defendant is in detention investigation must stop. But see United States v. Nagelberg, 434 F.2d 585 (2d Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 935, 28 L.Ed.2d 219 (1971).

In our view, there was in the present case a good faith effort to comply with the Miranda doctrine. The petitioner was admonished that he need not speak; that he was entitled to talk to a Consulate official; that anything he said could be used against him in court; and that if he decided to answer questions without a lawyer he could stop at any time.

In Miranda the Supreme Court said that the safeguards set forth in the Court’s opinion should be employed “unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it . . . ”

In a more recent case the Supreme Court has stated:

Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever.

Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

We consider the departure from the Miranda doctrine that occurred here as a variation which under the facts of this case was unavoidable and not prejudicial.

A case similar to the present one is that of the Fifth Circuit in United States v. Dopf, 434 F.2d 205 (5th Cir. 1970). There it was held that the oral statements were admissible.

Petitioner relies on United States v. Dolack, 484 F.2d 528 (10th Cir. 1973). But it bears little resemblance in either fact or law to our case. Its only similarity is that the defendant in each instance was outside the United States. It concerned the right to counsel after indictment and was based on the Supreme Court’s decision in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Petitioner’s efforts to bring himself within the mandate of Dolack are unsuccessful.

We conclude that petitioner’s constitutional rights were not violated either before indictment or afterward.

Accordingly, the judgment of the district court is affirmed.

      . The statement given to the FBI officers concerned the stolen automobile and did not include the alleged homicide.

      . He did have burns on the front of his body.

      . The case presented is dissimilar from several cases in this Circuit where the state trial court did not rule on the factual allegations underlying the habeas petitioner’s constitutional claims. See Beavers v. Anderson, 474 F.2d 1114 (10th Cir. 1973); Nolan v. United States, 466 F.2d 522 (10th Cir. 1972); Gafford v. Warden, 434 F.2d 318 (10th Cir. 1970); Pope v. Turner, 426 F.2d 783 (10th Cir. 1970); Price v. Turner, 421 F.2d 191 (10th Cir. 1970); Hall v. Page, 367 F.2d 352 (10th Cir. 1966).

      . It is, of course, fundamental that an independent evidentiary hearing need not always be given. See Moore v. Anderson, 474 F.2d 1118 (10th Cir. 1973); Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973); Reynolds v. Rodriguez, 444 F.2d 94 (10th Cir. 1971); Burke v. United States, 427 F.2d 465 (10th Cir. 1970); Garcia v. Baker, 421 F.2d 671 (10th Cir. 1970); Maxwell v. Turner, 411 F.2d 805 (10th Cir. 1969).

      . Several other courts have held that Miranda warnings which do not offer immediate access to counsel are nevertheless valid. See Wright v. North Carolina, 483 F.2d 405 (4th Cir. 1973); United States v. Carneglia, 468 F.2d 1084 (2d Cir. 1972), cert. denied, sub nom. Inzerillo v. United States, 410 U.S. 945, 93 S.Ct. 1391, 35 L.Ed.2d 611 (1973); Massimo v. United States, 463 F.2d 1171 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973); United States v. Lacy, 446 F.2d 511 (5th Cir. 1971); Mayzak v. United States, 402 F.2d 152 (5th Cir. 1968). But see United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972); United States v. Cassell, 452 F.2d 533 (7th Cir. 1971).