author: LAY, Circuit Judge.

text:
    Leslie D. WILLIS, Appellant, v. Dr. P. J. CICCONE, Appellee.
    No. 74-1294.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1974.
    Decided Nov. 15, 1974.

      Leslie D. Willis, pro se.
    Bert C. Hum, U. S. Atty., Kansas City, Mo., filed motion for remand of cause for further consideration.
    Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   LAY, Circuit Judge.

This is an appeal from a denial of injunctive relief sought in a petition for habeas corpus. The petitioner Willis was a prisoner at the United States Medical Center for Federal Prisoners at Springfield, Missouri. In his habeas petition he alleged that prison authorities had placed him in punitive isolation on the basis of a false disciplinary report and after a hearing which denied him various safeguards of procedural due process. He also charged that he was being denied access to the courts and that his freedom to associate with other prisoners was being abridged because of his race.

Pursuant to a local procedural rule then in force in the United States District Court for the Western District of Missouri, Willis’ petition was processed by a magistrate who held an evidentiary hearing and entered findings of fact and conclusions of law with a recommendation that some of the requested relief be granted and that some be denied. Under the rule, the petitioner could seek a de novo review of the magistrate’s findings by the district judge. Willis sought this review but the district judge adopted the findings and recommendations of the magistrate and entered judgment accordingly. Willis then filed this appeal contending that the magistrate was without authority to hold the evidentiary hearing.

The Director of the Medical Center, Dr. P. J. Ciccone, through his counsel the United States Attorney, has filed a motion in this court seeking a remand for the purpose of a new hearing before the district court in view of the holding in Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), that magistrates lack authority to hold evidentiary hearings in habeas cases. This court has followed this remand procedure in Williams v. Ciccone, No. 74-1320, and McFadden v. Ciccone, No. 74-1245. For the reasons which follow, however, we find a remand is not necessary and affirm the denial of the writs by the district court.

This case, along with Proffitt v. Ciccone, 506 F.2d 1020, and Frazier v. Ciccone, 506 F.2d 1022, raises substantial questions regarding the scope of the writ of habeas corpus as well as the propriety of certain procedures followed by the district court in processing such petitions. In view of the increasing number of habeas corpus actions being filed, and what we perceive to be a basic misunderstanding by both federal and state prisoners of the availability of the writ for redressing prisoner grievances relating to the conditions of their confinement, these questions are important ones.

To avoid further abuse of the writ and hopefully to obviate some of the unnecessary procedural time and paper work undertaken by district courts, we think it useful to briefly review both the substantive claims for which habeas relief is available and the procedural guidelines to be followed with prisoner petitions.

Habeas corpus was originally viewed by this circuit, and several others, as an inappropriate method for challenging prison conditions. See, e.g., cases cited in Cates v. Ciccone, 422 F.2d 926 (8th Cir. 1970). This restrictive view was premised primarily upon the same belief that gave rise to the more general “hands off" doctrine, that is, that prisoner complaints relating to conditions of confinement could only be addressed to those prison authorities who had responsibility for those conditions. See, e.g., Harris v. Settle, 322 F.2d 908 (8th Cir. 1963). As the scope of federal habeas corpus expanded to include review of constitutional deficiencies in both state and federal convictions, the Supreme Court also recognized § 1983 of the Civil Rights Act as a proper vehicle for state prisoners challenging conditions of confinement which were in violation of their federal constitutional rights.

Federal prisoners, of course, could have no remedy under § 1983 because of the absence of state action. The only recourse for federal prisoners desiring to challenge unconstitutional conditions in their confinement was the extraordinary remedy of habeas corpus. The basic inequity of providing a remedy for state prisoners while denying it to federal prisoners led to a reassessment of those cases which had held that habeas relief was unavailable in such circumstances with the result that now it is generally acknowledged that habeas corpus is a proper vehicle for any prisoner, state or federal, to challenge unconstitutional actions of prison officials. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L.Ed.2d 935 (1974); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

Contrary to the view evidenced by many prisoner petitions, however, not every aspect of prison discipline justifies review in federal court. The Supreme Court has observed that, since habeas corpus is an extraordinary remedy, “its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.” Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1575, 36 L.Ed.2d 294 (1973). In the context of challenges to prison conditions or the actions of prison authorities, we believe this means two things: (1) that habeas corpus is limited to claims involving the deprivation of substantial rights, and (2) that even where such claims are present, it is available, except in the most unusual circumstanees, only after administrative procedures which provide a real possibility for relief have been exhausted.

Exhaustion of Administrative Remedies

Administrative procedures can, where available, provide an adequate and often the most expeditious review of prisoner grievances. Federal prison administrative grievance procedures must be viewed in this light. We hold that if grievance procedures provide an adequate means for impartial review, then a federal prisoner must exhaust available administrative remedies within the correctional system prior to seeking extraordinary relief in federal court. This requirement of exhaustion for federal prisoners has been recognized by several circuits and we endorse their view. Paden v. United States, 430 F.2d 882 (5th Cir. 1970); Light v. United States, 430 F.2d 932 (5th Cir. 1970); Quick v. Thompkins, 425 F.2d 260 (5th Cir. 1970); Green v. United States, 283 F.2d 687 (3d Cir. 1960). The extraordinary nature of the writ requires this. It should not be resorted to until other more conventional remedies have failed. When proper grievance procedures exist, their utilization benefits the prisoner, the prison authorities and the courts, If such procedures are given a fair chance to succeed, not only will the prisoner receive expeditious relief when he is entitled to it, the administrative burden processing federal suits places upon prison authorities will greatly decrease as well.

Procedures in District Court

We turn now to a consideration of district court procedure as it relates to claims asserted by federal prisoners. We observed initially that while prisoners are entitled to a plenary evidentiary hearing when they state a claim which merits it, only certain claims merit such a hearing. Before a hearing is required, the petition must allege a harm resulting from the deprivation of some basic federal constitutional right. Furthermore, conclusory pleading is not sufficient. Facts must be stated which, if true, would justify relief. Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). Habeas petitions cannot seek de novo review of the facts involved in a disciplinary proceeding. A federal district judge or magistrate can never serve as final arbiter on factual disputes over the occurrence of rule infractions within a prison. In this case, as in the other two cases mentioned, the magistrate conducted lengthy evidentiary hearings and made extensive findings of facts on the events surrounding prison disciplinary actions. In effect, the facts presented in the disciplinary action were heard again by the magistrate. Such a procedure misapprehends the scope of habeas corpus. The only issue which should concern a federal court in such instance is whether the prisoner has been aggrieved by a denial of a fundamental constitutional right. A hearing is not required if one is not necessary to a determination on that issue. Often one is not. Habeas corpus is designed to provide a prompt and efficacious remedy. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). It should be kept in mind that the very nature of the writ allows it to “cut through barriers of form and procedural mazes.” Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969). Time-consuming procedures and pleadings should be kept to a minimum. The Supreme Court has observed:

Flexible provision is made for taking evidence by oral testimony, by deposition, or upon affidavit and written interrogatory. 28 U.S.C. § 2246. Cf. §§ 2245, 2254(e). The court shall “summarily hear and determine the facts, and dispose of the matter as law and justice require.” 28 U.S.C. § 2243. But with respect to methods for securing facts where necessary to accomplish the objective of the proceedings Congress has been largely silent. Clearly, in these circumstances, the habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.

Harris v. Nelson, supra at 299, 89 S.Ct. at 1090.

In many recurring instances other fact-finding procedures available to the district court are superior, and thus preferable, to the evidentiary hearing. The possibilities are aptly illustrated by this case.

In his habeas petition Willis presented grievances which are representative of those often contained in such petitions. First, he alleged a denial of procedural due process in relation to a disciplinary proceeding leading to punitive isolation, loss of good time and the denial of prison privileges. Second, he alleged a denial of due process in that disciplinary actions were based on false charges. Third, he alleged a denial of an independent constitutional right by reason of certain prison rules and the conduct of prison authorities.

An evidentiary hearing was unnecessary on the basis of these allegations in this case.

Due Process

The allegation that procedural due process was denied in a prison disciplinary proceeding should no longer require the district court, except perhaps in an extreme case, to hold an evidentiary hearing. One was clearly superfluous here. The magistrate heard evidence on factual disputes over whether the petitioner had stolen food from the prison cafeteria, whether he had in fact been found “out of bounds,” whether he had been in possession of property belonging to another, and whether he had committed homosexual acts. The hearing, however, did not focus on the federal issue, that is, whether procedural due process had been afforded in the disciplinary proceedings resulting from these alleged occurrences. Had that been recognized as the basic issue at the hearing, the records of the disciplinary proceedings themselves, if they were available, might have provided sufficient evidence of what procedures were followed. A response by prison authorities through affidavit detailing the procedures followed could have obviated the necessity for a hearing. The testimony in the record compiled by the magistrate, when viewed as ah oral affidavit, clearly establishes that the petitioner was afforded procedural due process and that a remand for the purposes of a hearing would serve no useful purpose.

The disciplinary proceedings which are challenged here occurred prior to the decision in Wolff v. McDonnell. While the due process requirements delineated there are expressly made non-retroactive, we have recently observed that this does not prevent us from reviewing past proceedings to determine whether they were compatible with basic principles of procedural fairness. Wilwording v. Swenson, 502 F.2d 844 (8th Cir. 1974). We interpret the decision in Wolff to mean simply that the specific requirements of due process set out there are not deserving of retroactive application. This does not mean that in the absence of some showing of essential fairness in pre-Wolff disciplinary procedures, this court cannot intervene. Intervention is not warranted here, however. The record shows that prior notice, although not in exact conformity with Wolff, was given. The petitioner was informed of the evidence to be presented and a hearing was held. His primary complaint is that he was not afforded the right to cross-examine the witnesses against him. Wolff, however, held that cross-examination of witnesses is not an essential element of due process in such hearings. We find from the record sufficient trustworthiness in the questioned prison proceedings and there exists no necessity for a remand for further hearings under Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974).

False Charges

We turn to Willis’ allegation that some disciplinary actions taken against him were based on false reports. Once again we question whether evidentiary hearings, except in extreme cases, are necessitated by such a claim where there has been compliance by prison officials with procedural due process. One of the requirements of Wolff is that the prisoner be given a written statement of the factfinder’s reasons for the disciplinary action. Where procedural due process has been afforded in the prison proceeding, this statement will provide prison officials with documentary proof demonstrating the factual basis of any action by the prison disciplinary board. A result can be reached at the pleading stage. As we have noted previously, the role of the district court is not to afford a de novo review of the disciplinary board’s factual findings. The district court should simply determine whether the decision was supported by some facts. The sole and only issue of constitutional substance is whether there exists any evidence at all, that is, whether there is any basis in fact to support the action taken by the prison officials. Wilwording v. Swenson, 502 F.2d 844 (8th Cir., 1974); McDonnell v. Wolff, 483 F.2d 1059 (8th Cir. 1973), rev’d on other grounds, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Otherwise the federal court would assume the task of retrying all prison disciplinary disputes. In the instant case the response by the prison authorities, as substantiated by the testimony taken by the magistrate (which we again construe as an oral affidavit), shows there was a basis in fact to the charges made and a remand is unnecessary.

Infringement of Fundamental Rights

This, then, brings us to the third general type of grievance found in prisoner complaints, i. e., the allegation that a fundamental constitutional right of the prisoner has been infringed. When such a claim is made in a petition for a writ of habeas corpus, strict judicial scrutiny is required in reviewing that claim. Preiser v. Rodriguez, 411 U.S. 475, 498-499, 93 S.Ct. 1827, 36 L.Ed.2d 235 (1973).

This type of claim often involves the alleged denial of a prisoner's First Amendment rights, see Remmers v. Brewer, 494 F.2d 1277 (8th Cir. 1974); Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972), or an alleged violation of the Eighth Amendment through cruel and inhuman punishment. See Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974). Allegations of this type will more frequently require an evidentiary hearing in federal court. Cf. Dodson v. Haugh, 473 F.2d 689 (8th Cir. 1973). However, where the allegation in itself does not set forth a claim as a matter of law, Proffitt v. Ciccone, 506 F.2d 1020, filed this date, or may be upheld as a matter of law, Mattingly v. Ciccone, 503 F.2d 502 (8th Cir. 1974), no evidentiary hearing is necessary.

In the instant case Willis’ petition might be viewed as alleging a denial of First Amendment rights. He says he, a black, was harassed for associating with white inmates and further, that he was abused by a ward officer for filing a prior habeas action concerning improper medical treatment. Willis’ petition and his own testimony show that his first allegation is based on one of the correctional officers asking him “when he began associating with whites.” Without more proof of harassment and without condoning such interrogation, we hold these facts fail to present a claim sufficient to justify habeas relief. Nor does the evidence support Willis’ second claim that he was unduly harassed for filing legal process. Obviously if true this states a proper claim for relief, since free access to the courts may never be inhibited by prison authorities. However, Willis’ allegation rests solely on the fact that after he filed a writ his ward officer filed three incident reports on him. The recoi'd shows that the ward officer had an independent factual basis for each of these charges. Without some further showing, there is not sufficient evidence to justify habeas relief. Finally, the record shows that Willis has now been transferred to another prison and the alleged harassment at Springfield has in any event ceased. These claims are therefore moot.

In conclusion, we therefore hold that prisoner petitions which seek a writ of habeas corpus and relief from prison conditions must allege (1) a substantial infringement of a constitutional right, (2) a factual statement, which if true would entitle the prisoner to relief, and (3) exhaustion of prison grievance procedures. We further suggest that the petitions be processed in as expeditious and summary a manner as possible and that evidentiary hearings be held only when a factual dispute arises as to whether the prisoner’s fundamental rights are being infringed. Where the issue is one of due process in a disciplinary action, the district court should concern itself with the question of whether procedural due process has been afforded and whether there exists a factual basis for the discipline invoked. Generally this evidence should be received in the form of documentary proof without the necessity of an evidentiary hearing. Finally, in compliance with Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), the magistrate is not permitted to hold any evidentiary hearing or make any adjudicatory findings.

The principles restated here must not be misunderstood. They do not warrant the denial of an evidentiary hearing when the pleadings clearly require one. On the other hand, we think it clear that once proper and fair grievance machinery is applied on the administrative level, prisoner petitions for habeas corpus may be summarily reviewed in ascertaining whether there has been a denial of substantive federal rights.

Judgment affirmed.

      . A significant problem arose over whether the federal courts could require a state prisoner to exhaust his state remedies when he labeled the case habeas corpus, even though if the pleadings were cast in terms of § 1983 it could not exact the same exhaustion requirement. Cf. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). Thereafter the Supreme Court in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 235 (1973), set forth definitive guidelines recognizing that suits by state prisoners for money damages and declaratory relief were cognizable under § 1983, but claims which related to loss of good time and punitive isolation went to the “core” of habeas corpus and could only be recognized in that light. Id. 411 U.S. at 500, 93 S.Ct. 1827, 36 L.Ed.2d 235.

      . This was recently illustrated when the Supreme Court observed in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), that the due process required in prison disciplinary procedures which affect loss of good time or which may result in punitive isolation is not necessary when lesser penalties, such as the loss of privileges, are threatened.

      . Our lidding concerning exhaustion of state and federal administrative remedies is confined to cases involving habeas corpus. It is well settled that state prisoners may generally seek money damages or declaratory relief concerning prison discipline under § 1983 without exhaustion of state remedies. However, as was observed in AVolff v. McDonnell and repeated here, it may well benefit prisoners to seek administrative relief first since this may be both a more expeditious and advantageous source of relief from unlawful action. Nevertheless, where a prisoner utilizes § 1983 as the means to attack the conditions of his confinement, the very nature of the suit and the rules governing its procedure remove it from any judicial requirement of exhaustion. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

      . Tlie State Court Administrator of Maryland reports that since 1971 when legislation created a grievance commission to hear prisoner complaints, prisoner petitions have decreased 66%. Maryland Inmate Grievance Commission, Profile No. 3, American Bar Association Resource Center on Correctional Law and Legal Services. See also South Carolina Correctional Ombudsman, Profile No. 2, id.; Minnesota Correctional Ombudsman, Profile No. 1, id.

      . The magistrate’s findings, as adopted by the district court, cover 10 of the 36 pages of liis report. We set forth the magistrate’s findings concerning one of several disciplinarles reviewed at the time of the evidentiary hearing;
      1. On November 9, 1973, David Roper, Clothing Services Assistant in the Medical Center, while conducting a search of petitioner’s locker, in petitioner’s presence, found therein clothes which did not belong to the petitioner; an amount of clothes in excess of that which it was permissible for petitioner to have under the Medical Center regulations; one pair of shorts from which the prison numbers had been cut out; 3 pair of shorts with other prisoners’ numbers in them; and the following items which were either not to be possessed by him or in excess of the permissible quantity: 4 pillow cases, 2 sheets, 4 wasli cloths, 1 fatigue jacket., 7 handerkerchiefs, 8 tee shirts, 11 bath towels, and 2 pairs of khaki pants.
      2. Therefore, the same date, Mr. Roper filed a disciplinary report charging petitioner with “destroying, altering, or damaging government property, or the property of another person,” and “possession of property belonging to another person.” In support of the charges, Mr. Roper stated the following particular facts :
      “While checking with this inmate on a set of special shoes to be ordered I found he had in his possession the following which I picked up. 4 pillow cases, 2 sheets, 4 wash cloths, 1 fatigue jacket, 7 handkerchiefs, 8 T shirts, 11 bath towels, 2 pr. khaki pants, 4 pr. shorts, 1 marked #962, 1 marked #832, 1 marked #90, and 1 with the number cut out. This left him in his possession 4 pr. shorts, 4 pr. khaki pants, 4 khaki shirts, 1 fatigue jacket, 1 handkerchief, 1 towel, 1 wash cloth, 1 T shirt, plus sheets and pillow case on his bed.”
      3. A copy of that disciplinary report was delivered to petitioner by Correctional officer Larry .T. Eoff, at 9:45 a.m. on November 11, 1973.
      4. Petitioner subsequently appeared before the prison disciplinary committee on November 14, 1973. There, the report of Mr. Roper was read to him and petitioner was given an opportunity to respond thereto. Petitioner stated:
      “Tes Sir I had the towels the rest of the stuff belonged to another guy I was keeping for him. I did not destroy anything. This guy left them there and I pushed them under my bed. I was in the tub when they shook it down. I’m sayinfg] that I am aware there were clothes there. I deny that I altered anything.”
      The committee found that petitioner had committed the prohibited act as charged, basing their finding on petitioner’s admission that “he had possession” and the report of Mr. Roper. The committee recommended the withholding of 10 days’ statutory good time for the month of November.
      5. In the hearing of the case at bar, petitioner denied that he had cut the numbers out of any clothing; that he had changed the numbers on any clothing; and stated that all the clothing he had bore his numbers. He admitted having excess towels, stating that he had intended them for the use of other persons. He stated that any excess of articles that he had were being possessed' by him for another prisoner, whom he did not know and who simply left the items on his locker one day.

      . With the definitive guidelines of minimal due process requirements now set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the claims concerning denial of procedural due process in prison disciplinaries should now disappear. We assume all prison authorities will establish disciplinary procedures meeting at least the basic requirements set forth there. Pursuant to a Policy Statement (No. 2001.-6) issued February 14, 1974, the United States Bureau of Prisons established an Administrative Remedy Procedure throughout the federal system, effective April 1, 1974.

      . Prior to Wolff this court had required some basic procedural due process in prison disciplinary proceedings. See, e. g., Dodson v. Haugh, 473 F.2d 689 (8th Cir. 1973); Remmers v. Brewer, 475 F.2d 52 (8th Cir. 1973).

      . The district court, based on the magistrate’s findings which the record supports, found no notice given to the prisoner for two other discijdinary charges and therefore ordered good time reinstated. No appeal was taken by the government from these rulings, and we need not pass on this part of the court’s order.

      . Where a prisoner alleges some infringement of a fundamental constitutional right, the district court, assuming a factual dispute exists, must make an independent finding of fact. When such an allegation is made the findings made by any prison administrative boards are not controlling.

      . As set forth in the statute, the magistrate may assist the district court by making recommendations to the court as to whether an evidentiary hearing is necessary. See Wingo v. Wedding, supra.

      . Our analysis as to the restricted nature of federal claims which may now arise is equally applicable in weighing the necessity of evidentiary trials under § 1983. Where documentary evidence demonstrates that prison disciplinary proceedings have comj)lied with the due process requirements under Wolff and demonstrate a factual basis for the claim, summary judgment may be the appropriate remedy obviating trial.


source: Caselaw Access Project

license: Public Domain

text:
    Wilbert Eugene PROFFITT, Appellant, v. Dr. P. J. CICCONE, Appellee.
    Nos. 74-1161, 74-1249.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1974.
    Decided Nov. 15, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 3, 1974.
    Wilbert Eugene Proffitt, pro se.
    Bert C. Hurn, U. S. Atty., Frederick 0. Griffin, Jr., and Anthony P. Nugent, Jr., Asst. U. S. Attys., Springfield, Mo., on brief for appellee.
    Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   LAY, Circuit Judge.

This is one of three cases decided this date involving the use of the writ of habeas corpus by a federal prisoner challenging conditions of his confinement. The petitioner seeks a remand to the district court because of the unauthorized procedures followed by that court in referring his petitions to a magistrate for an evidentiary hearing and subsequently adopting the magistrate’s findings as its own. See Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). For the reasons set forth in Willis v. Ciccone, 506 F.2d 1011, also filed this date, we find no necessity for remand and affirm the district court’s denial of relief.

In two separate proceedings, consolidated here for purposes of appeal, the petitioner seeks injunctive relief against (1) enforcement of prison hair regulations which allegedly infringe upon his First Amendment rights relating to religious beliefs, and (2) the denial of procedural due process in a prison disciplinary proceeding which resulted in four days of punitive isolation.

Proffitt’s first claim is that prison regulations which require him to cut his long hair force him to violate a religious vow he has taken. This allegation states a prima facie claim for relief. Prison authorities may not unreasonably interfere with the exercise of one’s religious beliefs. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1966); Evans v. Ciccone, 377 F.2d 4 (8th Cir. 1967). Since the prison authorities admit the existence of the regulations requiring petitioner to cut his hair, however, no factual dispute exists and the question presented is one of law. No evidentiary hearing was necessary to review this claim and thus no remand is required.

Although the law ' acknowledges a prisoner’s “forum of conscience” deserving of protection, Remmers v. Brewer, 494 F.2d 1277 (8th Cir. 1974), it also recognizes that a person, in or out of prison, may not, in the name of religion, become a law unto himself. As we said in Evans v. Ciccone, supra,: “Freedom of religion can never mean freedom to flagrantly disregard reasonable rules of conduct in or out of prison.” 377 F.2d at 6.

In the past this court has upheld prison regulations imposing reasonable grooming requirements on prisoners. Rinehart v. Brewer, 491 F.2d 705 (8th Cir. 1974) (Lay, J., dissenting). See also Blake v. Pryse, 444 F.2d 218, 219 (8th Cir. 1971). Until a majority of this court may disagree, the Rinehart case is the law of this circuit. Prison grooming regulations have withstood challenges under the First Amendment in other circuits as well. See, e. g., Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970).

Petitioner’s second complaint focuses on disciplinary action taken against him for being found “out of bounds.” It resulted in a loss of good time. He alleges he was denied procedural due process in his hearing before the disciplinary committee. Although the specific requirements of due process set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), are not retroactive, we have held that a prisoner’s loss of good time in cases pending at the time of Wolff must nevertheless have a factual basis and good time cannot be deprived without some showing of notice and a fair hearing on the prison administrative level. The testimony of prison officials before the magistrate shows this occurred here. Although the procedures followed did not conform with the requirements of Wolff, in our judgment they provided sufficient procedural safeguards to avoid constitutional challenge. The district court so found and the record supports this finding.

Judgment affirmed.

      . This evidence could have been submitted by written affidavit. We treat the sworn testimony before the magistrate as an oral affidavit for purposes of our determination.


text:
    Francis L. FRAZIER, Appellant, v. Dr. P. J. CICCONE, Appellee.
    No. 74-1422.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1974.
    Decided Nov. 15, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 3, 1974.
    David R. Freeman, Federal Public Defender; and Ray Conrad, Asst. Federal Public Defender, Springfield, Mo., on brief for appellant. Francis L. Frazier, pro se.
    Bert C. Hurn, U. S. Atty., and Frederick 0. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., on brief for appellee.
    Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   LAY, Circuit Judge.

Petitioner is presently serving a ten-year sentence at the Springfield Medical Center for federal prisoners. He filed a petition for a writ of habeas corpus challenging the conditions of his confinement. For the reasons discussed in Willis v. Ciccone, 506 F.2d 1011, filed this date, we find no necessity for a remand to achieve compliance with Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). We affirm the judgment of the district court.

Frazier contends there was no factual basis for a derogatory notation placed in his prison record by correctional personnel. The challenged notation concerned an alleged statement made during a conversation between the petitioner and a correctional officer. He summarized the note’s content in his petition: “Petitioner had said that he was going to take the institution over and that Petitioner had a list of names of the staff who were to be taken care of.” His claim for habeas relief seeking to have the notation expunged was based upon an allegation that the note is factually inaccurate and that its presence in his record constitutes cruel and inhuman treatment within the proscriptions of the Eighth Amendment.

When this petition was filed, the district court entered a routine order referring the case to a magistrate. After initial review the magistrate found that his claim for the expunction from his file of a notation which was not a disciplinary report was without merit. However, he ordered the government to respond and the parties to appear at an evidentiary hearing on the question of whether petitioner’s custody classification was jeopardized by the notation. The government response stated that petitioner had failed to allege a denial of any federal right. The petitioner filed an amended petition through appointed counsel alleging basically the same facts. An order continuing the hearing preceded another order setting the hearing. The district court then filed an amended order of reference. The magistrate held a full evidentiary hearing and filed a lengthy report containing his findings of fact, conclusions of law and a recommendation of the relief to be granted. The magistrate found that the note need not be expunged (since there was evidence to support it), but that a supplementary note should be filed stating that the prisoner had an improved attitude. Thereafter, in order to obtain a review by the district judge pursuant to the district court’s local rules, both the petitioner pro se and his counsel filed lengthy exceptions to the magistrate’s report. The district court entered a nine-page order on May 14, 1974, adopting the magistrate’s report and overruling the exceptions. This appeal followed.

We find the petitioner (1) failed to state a claim for relief in habeas corpus; (2) was not entitled to appointment of counsel; (3) was not entitled to an evidentiary hearing; and (4) was not entitled to any relief. This case should have been summarily decided by the district court. The unnecessary and timely procedures resorted to misapprehend the intended scope and use of the extraordinary writ of habeas corpus. See Willis v. Ciccone, 506 F.2d 1011, filed this date.

The petition alleges that the notation in the petitioner’s file constituted cruel and inhuman treatment in violation of the Eighth Amendment. We think this claim frivolous on its face. There is no allegation that the notation has resulted in the loss of good time or a change of custody. Cf. Wilwording v. Swenson, 502 F.2d 844 (8th Cir. 1974). The response by prison authorities clearly demonstrated there was evidence to support the notation. See Willis v. Ciccone, supra. Moreover, the petition should have been dismissed as failing to state a claim for habeas relief. As the magistrate observed, the notation involved is in the form of a “nurse’s note.” It was not a disciplinary report and, as the prison authorities attested, it was placed in his hospital record, a confidential file not used for parole purposes or as a basis of punishment. When it is alleged that false disciplinary reports have beén entered without due process being afforded and where loss of good time or punitive isolation results, or where the adverse impact of the disciplinary action may affect the prisoner’s eligibility for parole, the petition may well state a claim for relief. See McDonnell v. Wolff, 483 F.2d 1059, 1064 n. 7 (8th Cir. 1973); Black v. Warden, 467 F.2d 202, 204 (10th Cir. 1972); Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854, 856 (1970). This was not the ease here.

As this court observed in Sawyer v. Sigler, 445 F.2d 818 (8th Cir. 1971):

[I]t is not the function of the courts to run the prisons, or to undertake to supervise the day-to-day treatment and disciplining of individual inmates; much must be left to the discretion and good faith of prison administrators. That is not to say, of course, that the federal courts should not exercise their jurisdiction in proper cases, but the exercise of it should be sparing.

Id. at 819.

Judgment affirmed.

      . Prison hospital officials testified they would have made the latter entry in due course, and the propriety of this supplemental order is not api>ealed from by the government.


author: GEE, Circuit Judge:

text:
    In the Matter of Roy Stewart NUNNALLY, Bankrupt. Mary Elizabeth NUNNALLY, Appellant-Cross Appellee, v. Roy Stewart NUNNALLY, Appellee-Cross Appellant.
    No. 74-1361.
    United States Court of Appeals, Fifth Circuit.
    Jan. 8, 1975.
    Rehearing and Rehearing En Banc Denied Feb. 13, 1975.

      Gerard P. Nugent, Austin, Tex., for appellant-cross appellee.
    E. O. Rinehart, Jr., Austin, Tex., for appellee-cross appellant.
    Before DYER, SIMPSON and GEE, Circuit Judges.
   GEE, Circuit Judge:

In October 1972, Roy Stewart Nunnally filed a voluntary petition in bankruptcy. His principal creditor and the one pursuing this appeal is his former wife, Mary Elizabeth Nunnally, whose claim stems from earlier divorce proceedings. In granting divorce, the court had divided the separate and community property between the spouses under the authority of Section 3.63 of the Texas Family Code, V.T.C.A. In addition to various items of personal property and title to real estate, Mary Elizabeth Nunnally was awarded 60% of certain life insurance policies, $46,779.41 representing an advance to the community from her separate estate, and $5,000 in attorney’s fees incurred as a result of the divorce proceedings. The trial court granted Mrs. Nunnally a lien on Roy Nunnally’s remaining interest in his Navy retirement benefits to secure the $46,779.41.

A few months later Nunnally’s petition in bankruptcy presented Mrs. Nunnally with the possibility that parts of the divorce decree might be rendered of little worth. Those fears were reinforced by the bankruptcy referee’s decision and the district court’s affirmance. The referee found that the Navy retirement benefits becoming due after the filing of the voluntary petition in bankruptcy were not property passing to the trustee in bankruptcy. Further, he held that the $41,779.41 was a dischargeable debt, as was the award of attorney’s fees. Mrs. Nunnally’s application for a stay of the bankruptcy proceedings to permit her to proceed in state court to enforce her lien against the Navy retirement pension was denied. Mrs. Nunnally appeals these decisions, while Mr. Nunnally complains of the referee’s finding that the life insurance policies were not exempt from creditors under Vernon’s Tex.Rev.Civ.Stat.Ann. art. 3832a.

Under Section 70a(5) of the Bankruptcy Act, 11 U.S.C. § 110(a)(5), the trustee of the bankrupt’s estate is vested on appointment with title to all property of the bankrupt which could have been transferred by the bankrupt or which could have been levied upon prior to the filing of the petition in bankruptcy. This provision is a broad one, covering vested rights in property, both of corporeal and incorporeal nature. 1A Collier Bankruptcy Manual ¶ 70.11 at 946 (2d ed. rev. I. Hall & R. D, Agostino 1974) [hereinafter cited as Collier]. It is too late in the day to find that vested interests in retirement pensions are not property rights. Texas divorce courts so regard them, Busby v. Busby, 457 S.W.2d 551 (Tex.1970), and by implication the federal government does also. For example, specific federal legislation exempts benefits due under laws administered by the Veterans’ Administration from attachment, levy or seizure. 38 U.S.C. § 3101. Similar exemptions exist for railroad retirement benefits, social security payments, and military retired pay annuities. These federal exemptions are of no benefit to the bankrupt in this case. Exemption is a matter of federal or state legislative grace. Either through legislative oversight or through intentional deletion, Congress has failed to provide that Navy retirement pensions are free from levy and attachment. Nor is it provided by statute that pensions are not transferable. See Segal v. Rochelle, 382 U.S. 375, 381-385, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966).

One argument remains for the bankrupt. Some interests, though “property,” do not pass to the trustee for purposes of Section 70a(5). Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970). The pertinent considerations derive from the Bankruptcy Act itself. Section 70a(5) is defined to benefit creditors by transferring to the trustee everything the bankrupt has of value. Even if the interest is contingent or subject to postponed enjoyment, it may pass to the trustee. The interest must be “sufficiently rooted in the prebankruptcy past and so little entangled with the bankrupt’s ability to make an unencumbered fresh start that it should be regarded as ‘property’ under § 70a(5).” Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 2434, 41 L.Ed.2d 374, 379 (1974); Segal v. Rochelle, 382 U.S. 375, 379-380, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). On the other hand, if the interest is “designed to function as a wage-substitute at some future period and, during that future period, to ‘support the basic requirements of life for’ ” [the debtor], Kokoszka, supra, 417 U.S. at 648, 94 S.Ct. at 2435, 41 L.Ed.2d at 380, and removal of the interest would hamper the bankrupt’s efforts to make a new start, the property does not pass to the trustee. The pension payments here fall in the second category; they are periodic payments made during a time when the pensioner may well have no or few other sources of income.

Next, we treat the matter of whether the $41,779.41 awarded by the divorce court to Mrs. Nunnally was a dischargeable debt. All debts are dis-chargeable unless they are subject to the objections set out in Section 14c, 11 U.S.C. § 32(c) of the Act, 1 Collier ¶ 14.00, .02, or are exempt under Section 17, 11 U.S.C. § 35(a). 11 U.S.C. § 35(a)(7) provides:

A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as are for alimony due or to become due, or for maintenance or support of wife or child .

Although there is no permanent alimony in Texas, Francis v. Francis, 412 S.W.2d 29, 32 (Tex.1967), the divorce court is authorized at the time of the divorce to divide the separate and community property between the spouses in whatever manner the court deems equitable and just. Tex. Family Code Ann. § 3.63. Factors which the Texas courts may take into account in making the division and award “include the disparity of the earning power of the parties, as well as their business opportunities, the physical condition of the parties, probable future need for support, and educational background; . . . [t]he fault in breaking up the marriage and the benefits innocent spouse would have received from a continuation of the marriage . . ..” Cooper v. Cooper, 513 S.W.2d 229, 233-234 (Tex.Civ.App.— Houston [1st Dist.] 1974, writ history unknown) (emphasis added). See also Keton v. Clark, 67 S.W.2d 437 (Tex.Civ. App.—Waco 1933, writ ref’d). Thus, it is clear support in the future can play a significant role in the divorce court’s property division and that what may appear to be a mere division of assets may in fact, under a Texas decree, contain a substantial element of alimony-substitute, support or maintenance, however termed. The Texas Supreme Court has recognized that: “Support payments ordered to be made after divorce from the income from the husband’s property, although considered alimony in many jurisdictions, is not considered alimony in this State.” Francis v. Francis, 412 S.W.2d 29, 32-33 (Tex.1967). So recognizing, we should not be bound by the label which the state places on a decree; we must look to its substance. Here the award of $41,779.41 falls within the exception from discharge in Section 17.

As for the attorney’s fees awarded in the divorce proceedings, they are also protected from discharge. Courts have held attorney’s fees nondischargeable when awarded under a state statute allowing such fees as “alimony.” It is true that there is no statutory authority here; however, the Texas Supreme Court has based the award of attorney’s fees on the same factors which guide the divorce court in dividing the property on hand between the spouses. “The attorney’s fee is but a factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances.” Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1005 (Tex.1950). When put on those grounds, attorney’s fees are indistinguishable from other parts of the divorce decree. They cannot be discharged. Since these debts cannot be discharged, the matter of a stay is moot.

As a final matter, bankrupt contends that his interest in the cash surrender value of six life insurance policíes is exempt from creditors by virtue of Tex.Rev.Civ.Stat.Ann. art. 3832a. That statute provided:

The cash surrender value of any life insurance policy which has been in force more than two years, shall be exempt from liability for any debt, and shall not be subject to forced sale;, or other process to satisfy any debt, provided a member or members of the family of the insured are the beneficiaries under such policy, and in event they are only partially the beneficiaries then such policies shall be so exempt to the extent of their beneficiary interest. This act shall not apply to debts arising under the policy nor to debts secured by lawful assignment of the policy.

Under Texas law interpreting the meaning of “family” for purposes of personal property and homestead exemptions, adult children other than unmarried daughters are not part of the family unit. Givens v. Hudson, 64 Tex. 471 (1885). In order for the mother to be regarded as a member of her adult son’s family, there must be a legal or moral obligation to support on the part of one person, with corresponding dependency on the part of the other person. Stout v. Anthony, 254 S.W.2d 879 (Tex.Civ. App. — Amarillo, 1952, writ ref’d). Bankrupt has not shown himself legally or morally bound to support his mother. Likewise, he has not shown her dependence on him. Stout v. Anthony, supra. L. E. Whitham & Co. v. Briggs’ Estate, 58 S.W.2d 49 (Tex.Comm’n App.1933, holding approved). Cf. Henry S. Miller Co. v. Shoaf, 434 S.W.2d 243 (Tex.Civ. App. — Eastland 1968, writ ref. n. r. e.). The fact that bankrupt’s children are contingent beneficiaries on the policies does not change our holding that the cash surrender values of the policies are not exempt. The statute speaks in terms of beneficiaries, not contingent beneficiaries. Moreover, we decline to adopt an interpretation of the statute which would allow a bankrupt — by the device of making family members fourth or fifth contingency beneficiaries, for example — to insulate assets from creditors when there may be only a very slight chance that members of the family unit or dependents will ultimately benefit. This would not further the aims of the statute.

Affirmed in part, reversed in part.

      . The trial court gave 48% of the Navy retirement pension payments to Mrs. Nunnally. Fifty-two percent was awarded to Mr. Nunnally.

      . 45 U.S.C. § 228l.

      . 42 U.S.C. § 407.

      . 10 U.S.C. § 1440.

      . The bankrupt can only point to former 38 U.S.C. § 454a as authority for exemption. 1 Collier 1 ¶ 6.07 at 6-13. This section is no longer in the United States Code; however, the corresponding provision in the present code is 38 U.S.C. § 3101. This section applies only to benefits rendered under laws administered by the Veterans’ Administration, a requisite missing here.

      . Bankrupt contends that we cannot find the $41,779.41 an award for support since it would then be void under Texas law as permanent alimony. In order for the order to be valid, he says, we must find a debt — a dischargeable one. Although it is doubtful that this is a proper forum for bankrupt to attack the divorce decree collaterally, bankrupt’s argument founders on Texas case law. In Texas, permanent alimony is defined as “those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce.” Francis v. Francis, 412 S.W.2d 29, 33 (Tex. 1967). However, Texas courts are not quick to find that permanent alimony has been ordered, and we are ISrie-bound to follow in their tracks. If the payments ordered are “referable to any property which either spouse may have owned or claimed,” the award is valid. McBean v. McBean, 371 S.W.2d 930, 932 (Tex.Civ.App. — Waco 1963, writ history unknown). In McBean, the Waco Court of Civil Appeals held that requiring the husband to pay $100 per month to the wife for her life or until she remarried was valid as an offset against the community property awarded the husband. See also Zaruba v. Zaruba, 498 S.W.2d 695, 700 (Tex.Civ.App. — Corpus Christi 1973, writ dism’d); Gent v. Gmenier, 435 S.W.2d 293 (Tex.Civ.App. — Waco 1968, no writ); Bunker v. Bunker, 336 S.W.2d 751 (Tex.Civ.App. —San Antonio 1960, writ dism’d). The divorce court here stated specifically that Mrs. Nunnally was entitled to restoration of her separate property — $41,779.41. The sum was fixed; no periodic payments for an indefinite period of time were ordered. Mr. Nunnally received, among other items, 52% of his Navy retirement benefits. These benefits were valued at $222,000 in the voluntary petition for bankruptcy, so it is clear that there was property on hand, in Texas divorce court terms, to satisfy the debt. The cash award was made in lieu of granting Mrs. Nunnally additional property in kind. We do not think that the divorce decree suffers from the infirmity bankrupt presses upon us.

      . See 1 Collier ¶ 17.04 at 219.

      . This holding has been held to survive the enactment of the 1968 Texas Family Code. In re Marriage of Jackson, 506 S.W.2d 261, 268-269 (Tex.Civ.App. — Amarillo 1974, writ dism’d).

      . This statute was repealed effective January 1, 1974. However, it is preserved in Tex.Rev.Civ.Stat.Ann. art. 3836, pertinent sections of which are set out below :
      Art. 3836. [3785] [2395] [2335] Personal property exempt from satisfaction of liabilities
      (a) Personal property (not to exceed an aggregate fair market value of $15,000 for each single, adult person, not a constituent of a family, or $30,000 for a family) is exempt from attachment, execution and every type of seizure for the satisfaction of liabilities, except for encumbrances properly fixed thereon, if included among the following:
      •!' * * :|: sj:
      (6) the cash surrender value of any life insurance policy in force for more than two years to the extent that a member or members of the family of the insured person or a dependent or dependents of a single, adult person, not a constituent of a family, is beneficiary thereof; .


author: THORNBERRY, Circuit Judge:

text:
    Robert L. PARISH et al., Plaintiffs-Appellants, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al., Defendants-Appellees.
    No. 73-3748.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1975.

      John Gallagher, J. Peyton Moore, Shreveport, La., for plaintiffs-appellants.
    Arthur R. Carmody, Jr., Samuel W. Caverlee, Shreveport, La., George H. Gangwere, Jr., Kansas City, Mo., for defendants-appellees.
    Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.
   THORNBERRY, Circuit Judge:

Appellants, five college basketball players, challenge the constitutionality of the National Collegiate Athletic Association’s so-called 1.600 rule. This rule required that NCAA-affiliated schools grant athletic scholarships, first year eligibility for participation in athletics, and other benefits only to applicants who could “predict” — on the basis of their high school grade point average or class rank and their grade on one of two standardized achievement tests — a minimum 1.600 grade point average during their first year in college. The NCAA adopted the 1.600 rule as a means of insuring that the athlete be an integral part of the student body and to maintain intercollegiate athletics as an integral part of the education program.

Appellants attend Centenary College, a small private college situated in Shreveport, Louisiana. They were told by Centenary’s athletic department that they had been recruited by Centenary in conformance with the NCAA’s rules. In fact, however, the department almost certainly knew that appellants did not qualify under the 1.600 rule. After warning Centenary, both before and after the college admitted appellants on athletic scholarships, that the young men could not be granted athletic eligibility because of the rule, the NCAA applied sanctions against Centenary. These sanctions mean that unless the school declares appellants ineligible for basketball, Centenary cannot play in any NCAA sponsored tournaments or in any NCAA sanctioned televised games. Centenary refused to declare appellants ineligible; consequently they all continue to participate in regular season athletics.

Believing it likely in 1973 that Centenary’s basketball team would be invited to a postseason tournament, however, appellants brought this action claiming that the NCAA’s actions denied them due process and equal protection of the laws. They requested a permanent injunction forbidding the NCAA to enforce its sanctions against Centenary. The district judge granted a temporary restraining order and extended it once, but appellants permitted it to dissolve when Centenary’s team received no postseason invitations. The district court later denied the NCAA’s motion to dismiss, but after a hearing rendered judgment in its favor on the merits. We affirm.

I.

At the outset we must determine whether appellants can surmount the difficult jurisdictional barrier arguably present here. That is, we must decide whether the actions of the NCAA were taken “under color of state law” within the meaning of 42 U.S.C. § 1983 so as to confer jurisdiction on the district court under 28 U.S.C. § 1343(3). With only one exception, every federal court that has considered this question has answered it affirmatively. However, in McDonald v. N.C.A.A., C.D.Cal. 1974, 370 F.Supp. 625, a district court in California expressly addressed itself to the reasoning of the district court in this case and concluded that the activities of the NCAA did not constitute state action. Specifically, the court in McDonald rejected any reliance on the cases finding state action in the activities of statewide high school athletic associations:

No charge is made here that the NCAA is being used by any state — or group of states, for that matter — to undertake racial discrimination in college athletics .... Unlike the association in St. Augustine [Louisiana High School Athletic Association v. St. Augustine High School, 5 Cir. 1968, 396 F.2d 224], the NCAA has an existence separate and apart from the educational system of any state.

370 F.Supp. at 631. Similarly, the court concluded that a school’s voluntary adherence to the NCAA’s rules would create the necessary state action only if the school itself could be termed a state instrumentality, for even

[v]oluntary concurrence of a state in a decision of an organization (NCAA) or other body — not a state, state instrumentality, or sovereign equivalent • — does not make the acts of the organization (NCAA) “state action” in a constitutional sense.

370 F.Supp. at 631. Nonetheless, despite admitted conceptual difficulties and the initial appeal of McDonald’s reasoning, we believe that the district court in this case correctly concluded that the activities of the NCAA constitute action taken under color of state law.

We see no reason to enumerate again the contacts and the degree of participation of the various states, through their colleges and universities, with the NCAA. Suffice it to say that state-supported educational institutions and their members and officers play a substantial, although admittedly not pervasive, role in the NCAA’s program. State participation in or support of nominally private activity is a well recognized basis for a finding of state action. Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45; Smith v. Young Men’s Christian Ass’n, 5 Cir. 1972, 462 F.2d 634. Moreover, we cannot ignore the states’ — as well as the federal government’s — traditional interest in all aspects of this country’s educational system. Organized athletics play a large role in higher education, and improved means of transportation have made it possible for any college, no matter what its location, to compete athletically with other colleges throughout the country. Hence, meaningful regulation of this aspect of education is now beyond the effective reach of any one state. In a real sense, then, the NCAA by taking upon itself the role of coordinator and overseer of college athletics — in the interest both of the individual student and of the institution he attends — is performing a traditional governmental function. Cf. Evans v. Newton, 1966, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373; Terry v. Adams, 1953, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; Marsh v. Alabama, 1946, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265.

Admittedly, appellants cannot point to any one state or governmental body that controls or directs the NCAA; in this sense the present case is distinguishable from the high school athletic association cases. Nevertheless, it would be strange doctrine indeed to hold that the states could avoid the restrictions placed upon them by the Constitution by banding together to form or to support a “private” organization to which they have relinquished some portion of their governmental power. Cf. Terry v. Adams, supra. We have little doubt, in light of the national (and even international) scope of collegiate athletics and the traditional governmental concern with the educational system, that were the NCAA to disappear tomorrow, government would soon step in to fill the void. In view of these circumstances we hold that the district court correctly determined that it possessed jurisdiction to hear this suit under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).

II.

As frequently is the case, the merits of the litigation are less troublesome than the jurisdictional question. Appellants challenge the 1.600 rule on both equal protection and due process grounds. We will take up the equal protection claim first.

The district court held that “[ojbviously, the challenged action by the NCAA is not subject to strict judicial scrutiny.” 361 F.Supp. at 1226. We agree. Strict scrutiny is required only when the challenged classification either impinges upon a fundamental right or discriminates against a “suspect class.” San Antonio Ind. School Dist. v. Rodriguez, 1973, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16. Appellants concede that no fundamental right is involved here, but they do claim that the 1.600 rule impermissibly discriminates against some vaguely defined suspect class. Examination of appellants’ briefs and their contentions at oral argument suggests at least seven potential suspect classes: (1) blacks; (2) cultural minorities; (3) the educationally deprived; (4) persons of less than average intelligence; (5) late achieving students; (6) student athletes; and (7) impecunious student athletes. Except for (1) and perhaps (4), these suggested classes are neither traditionally suspect, nor do they possess the features usually associated with “suspectness.” Moreover, with regard to all of them appellants’ case labored under the same defect, i. e. a total lack of probative evidence as to actual discrimination. True, appellants offered the testimony of two witnesses to the effect that the achievement tests used to predict probable success during the first year in college were culturally biased in that they were geared for white middle class students. Conclusory allegations however, are no substitute for a factual showing of actual discriminatory intent or effect. Murray v. West Baton Rouge Parish School Board, 5 Cir. 1973, 472 F.2d 438, 444; cf. Baker v. Columbus Municipal Separate School Dist., 5 Cir. 1972, 462 F.2d 1112. Appellants having failed their burden of proving discrimination against some clearly defined suspect group, we decline “to extend . . . [the] most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class” whose members share only their failure to qualify under the NCAA’s 1.600 rule. See San Antonio Ind. School Dist. v. Rodriguez, supra, 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d at 40.

It follows that appellants are entitled to have the NCAA’s challenged classification tested only under the traditional “minimum rationality” standard. Using this test a classification will be upheld if it bears some rational relationship to legitimate state purposes. We agree with the district court’s finding that measured by this standard the 1.600 rule passes constitutional muster. Accord, Associated Students, Inc. v. N.C.A.A., supra; Howard University v. N.C.A.A., supra; cf. Schubert v. N.C.A.A., supra. See also Comment, Judicial Review of Disputes Between Athletes and the National Collegiate Athletic Association, 24 Stan.L.Rev. 903, 926 (1972).

Appellants’ due process contentions are likewise unavailing. As the district court noted, we have held that “[t]he privilege of participating in interscholastic athletics must be deemed to fall . . . outside the protection of due process.” Mitchell v. Louisiana High School Athletic Association, 5 Cir. 1970, 430 F.2d 1155, 1158. In this case, however, we need not go that far. For appellants here have lost only the opportunity to play in NCAA sponsored tournaments and televised games. Whatever the status of the alleged right to participate in interscholastic athletics, in the present circumstances we discern no “property” or “liberty” interest of which appellants have been deprived because of the NCAA’s enforcement of its 1.600 rule against Centenary. See Board of Regents v. Roth, 1972, 408 U.S. 564, 569-578, 92 S.Ct. 2701, 33 L.Ed.2d 548. Accordingly, the due process clause affords them no protection.

Affirmed.

      . In 1973 the NCAA repealed the 1.600 rule and substituted the 2.00 rule, which requires only that an entering college freshman have earned an overall 2.00 grade point average in high school. The Seventh Circuit recently upheld the constitutionality of the 2.00 rule. Schubert v. N.C.A.A., 506 F.2d 1402, No. 74-1282 (7 Cir. Oct. 22, 1974).

      . The district judge ordered Centenary joined as a party plaintiff to this action.

      . The XCAA placed Centenary on indefinite probation for incorrectly certifying appellants as eligible for basketball scholarships and other financial aid. Centenary could reduce the duration of its probation from indefinite to two years by “conducting its intercollegiate athletic program in accordance with all requirements and interpretations of NCAA bylaw 4-6-(b) [1-600 rule].” (App. at 57). The school declined to challenge this decision through the XCAA’s own appeals procedure, which is available only to the institution and not. to individual athletes.

      . Parish v. N.C.A.A., W.D.La.1973, 361 F.Supp. 1214.

      . Parish v. N.C.A.A., W.D.La.1973, 361 F.Supp. 1220.

      . The parties, as well as the district court, discuss this point in terms of the presence or absence of “state action.” The semantic distinction carries no substantive consequences, however, since the “under color of state law” requirement of 42 U.S.C. § 1983 simply reflects the state action requirement of the 14th Amendment. See United States v. Price, 1966, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267; Gibbs v. Titelman, 3 Cir. 1974, 502 F.2d 1107, 1110; Shirley v. State National Bank of Connecticut, 2 Cir. 1974, 493 F.2d 739, 741. Hut see Lavoie v. Bigwood, 1 Cir. 1972, 457 F.2d 7, 15 (“color of state law” requirement may demand greater state involvement than “state action”).
      Early in the proceedings appellants sought to establish jurisdiction under 42 U.S.C. § 1981, which of course extends to private action. Because this claim was apparently abandoned at some point during the case, we intimate no view on whether § 1981 would afford a jurisdictional base for a suit like this one. In any event it would be available here to Robert Parish alone, since it proscribes only racial discrimination.

      . Associated Students, Inc. v. N.C.A.A., 9 Cir. 1974, 493 F.2d 1251, 1254-1255; Smith v. Southern Methodist University, CA-3-74-895B (N.D.Tex.1974) (unreported order); Howard University v. N.C.A.A., D.D.C.1973, 367 F.Supp. 926, 929, appeal pending, Nos. 74-1166—1169 (D.C.Cir.); Buckton v. N.C.A.A., D.Mass.1973, 366 F.Supp. 1152, 1156-1157; Curtis v. N.C.A.A., C-71 2088 ACW (N.D.Cal.1972) (unreported opinion). The Seventh Circuit did not. reach the jurisdictional issue in Schubert v. N.C.A.A., supra.

      . In addition to the opinions cited by the district. court in this case, 361 F.Supp. at 1214, see Wright v. Arkansas Activities Ass’n, 8 Cir. 1974, 501 F.2d 25; Gilpin v. Kansas State High School Activities Ass’n, D.Kansas 1974, 377 F.Supp. 1233; Baltic Ind. School Dist. v. South Dakota High School Activities Ass’n, D.S.D.1973, 362 F.Supp. 780.

      . McDonald was decided before the Ninth Circuit issued its opinion in the Associated Students case, see note 7 supra, and is presumably overruled on the state action issue by that opinion.

      . See Parish v. N.C.A.A., supra, 361 F. Supp. at 1216-1219; Howard University v. N.C.A.A., supra, 367 F.Supp. at 928-929; Buckton v. N.C.A.A., supra, 366 F.Supp. at 1156-1157.
      In determining whether the NCAA’s activities constitute state action in the constitutional sense, it is of no significance that state-supported schools, as well as private ones, join the association voluntarily. On the other hand, because Centenary was not made a defendant here, we need not decide whether the action of a private college that voluntarily concurs in the decisions of the NCAA thereby also becomes state action.

      . As counsel for the NCAA noted at oral argument, the association was formed by persons on the strictly “educational” side of the colleges and universities, and not by the athletic departments. The large role played by the NCAA in regulating the educational effects of the mushrooming participation in, and expenditures on, intercollegiate sports is at least one factor distinguishing the association from other organizations of nationwide scope concerned with athletics. See King v. Little League Baseball, Inc., 6 Cir. 1974, 580 F.2d 264.

      . Of the five appellants, only Robert Parish is blaelc.

      . But see Comment, Equal Protection and Intelligence Classifications, 26 Stan.L.Rev. 647, 655 (1974) (“The argument that intelligence classifications are invalid because they are suspect should fail”).

      . The substance of one witness’ testimony is revealed in the following excerpt:
      Q. In your opinion, are these aptitude tests valid indicators of what a high school student might be able to do in college the first year?
      A. I don’t feel that any particular type test should be taken as absolute. I don’t feel any particular type test should stand alone in influencing the student to enter or not enter college.
      Q. What are some of the weaknesses inherent in these tests standing alone or used as predictors?
      A. First of all, this is a situation where a student may be physically or emotionally disturbed. The jierson who gives the test may confuse the student and thereby be inadequate in giving the test. Even a broken pencil point may be inadequate. Any type of learning disability would be an indication. Some students work slower than others.
      Q. Have you found in your experience any particular groups are at a disadvantage in taking them?
      A. Very definitely students who have experienced educational or environmental deprivation and are from the lower socio-economic groups, in my opinion, are at a disadvantage. Children who have attended small schools or rural schools where the curriculum offered may not be adequate are at a disadvantage. Students in these categories would suffer on the tests.
      Q. Are the tests geared to test any particular group?
      A. Generally they are geared toward middle-class white people.
      App. at 117-18. The testimony of the other witness, although bringing out other factors that might tend to skew the results of achievement tests, substantially tracked that of the first witness.

      . Because we perceive nothing “unusual” about the classification here, we have no call to embark on the “careful consideration” required by Dukes v. City of New Orleans, 5 Cir. 1974, 501 F.2d 706, 710.

      . Only Centenary has the authority to render appellants ineligible or to take away their athletic scholarships. These things the school has refused to do. Thus, the NCAA’s responsibility for actions taken by the school in voluntary compliance with the association’s mandate is not before us.

      . Appellants wisely abandoned at oral argument their attempt to create a property interest out of the alleged injury to their hoped-for careers in professional basketball from the inability to gain tournament experience and television exposure. Both the injury and the career are far too speculative to establish a property interest as defined in Iioth. Moreover, appellants concede that their athletic scholarships, assuming for the moment that these would constitute a property interest requiring due process protection, cf. Wright v. Arkansas Activities Ass’n, supra, 501 F.2d at 27, remain in full effect. Hence, the NCAA’s actions have caused no deprivation with regard to them.


author: MULLIGAN, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The NEWTON-NEW HAVEN COMPANY, Respondent.
    No. 59, Docket 74-1286.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 8, 1974.
    Decided Nov. 25, 1974.
    Michael S. Wolly, Atty., NLRB, Washington, D.C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate . Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, NLRB), for petitioner.
    Sidney A. Coven, Boston, Mass. (Le-pie & Coven, Warren D. Atlas, Boston, Mass., on the brief), for respondent.
    Before KAUFMAN, Chief Judge, ANDERSON and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

The National Labor Relations Board (Board), pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (Act), has applied to this court for enforcement of its order of December 12, 1973 against the Newton-New Haven Company (Company), requiring it to cease and desist from refusing to bargain. The decision and order of the Board are reported in 207 N.L.R.B. No. 116 (1973).

The Regional Director of the Board, on the basis of a representation petition filed by the United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO-CLC (Union), ordered an election to be held on April 13, 1973 in an appropriate unit of the Company’s production and maintenance workers. Of some 183 eligible voters in the unit, 169 cast their ballots, with 87 voting for the Union and 82 against the Union. On April 19th, the Company filed five objections with respect to the conducting of the election, all of which were denied by the Regional Director. The Company then filed an exception with the Board seeking review of the ruling on its fourth objection, which alleged that a representative of the Union acting as an official election observer engaged in prohibited conversations and improper electioneering during the period of the election while in the course of his official duties. The Board denied the request for review on June 11, 1973. The Company then refused to bargain with the Union, and, on December 12, 1973, the Board issued a cease and desist order. The denial of the request for review was rendered by a panel composed of only one Board member and two staff assistants. The Company urges here that the Board abused its discretion by failing to set aside the election allegedly tainted by the activities of the Union’s observer and by failing to order an evidentiary hearing with respect to this objection. The Company also urges that the decision of the Board was invalid and should be set aside because it was in violation of the quorum requirements of the Act. The petition for enforcement of the Board’s order is granted in full.

I

The Company has here refused to bargain with the Union which has been certified by the Board as the exclusive bargaining representative of the employees in the appropriate unit. This refusal of the Company constitutes a violation of section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) & (5), unless the Company can shoulder the “heavy burden” of establishing that the Board abused its discretion in certifying the election. Polymers, Inc. v. NLRB, 414 F.2d 999, 1004 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 570, 24 L.Ed.2d 502 (1970). We have said that “[t]he conduct of representation elections is the very archetype of a purely administrative function, with no quasi about it, concerning which courts should not interfere save for the most glaring discrimination or abuse.” NLRB v. Olson Bodies, Inc., 420 F.2d 1187, 1189 (2d Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 966, 28 L.Ed.2d 237 (1971). On the question of evidentiary hearings this court has also indicated that “[h]earings need not be held on objections to representation elections unless by prima facie evidence the moving party presents substantial and material factual issues which, if resolved in its favor, would warrant setting aside the election.” Polymers, Inc. v. NLRB, supra, 414 F.2d at 1004-1005 (footnote omitted).

The respondent here is fully conscious of the wide latitude entrusted to the Board in the conduct of representation elections and is aware of the heavy burden it has assumed in attempting to persuade this court that an election must be overturned. It argues, however, that the conduct of Juan Vega, the Union representative at the afternoon and evening voting pei’iods on April 13, 1973, constitutes a proper basis for setting aside the election or at least mandates the conducting of a full evidentiary hearing. Respondent relies principally upon Milchem, Inc., 170 N.L.R.B. 362 (1968), where the Board announced an admittedly strict per se approach to the electioneering problem. While we recognize that the result in the election here was close and that a few more votes would have changed the outcome, we must agree with the Board that there is nothing in the record before us, assuming the veracity of the affidavits of the Company witnesses, which would bring this case within the Milchem rule.

On the afternoon of the election, Vega, accompanied by the Company representative, visited the Die Casting Department to advise foremen that employees should be released to vote. While Vega improperly spoke to individual workers for about 5 minutes, his conversations were not overheard, or were with employees ineligible to vote, or were simply to remind them to vote without any indication as to how they should vote. While he was overheard speaking briefly in Spanish, which the Company representative did not understand, it is significant, as found by the Regional Director, that at least one foreman who spoke Spanish and was interviewed was available to the Company to ascertain the content of the conversation.

During the evening session of voting, Vega was observed at the door of the polling place, the cafeteria, but according to the affidavit of the Company observer, his only conversation was with an employee who had already voted. The employee was advised to leave and he did. Vega returned to the cafeteria but was later observed wandering down the hallway outside the polling place. He eventually returned permanently to the cafeteria, but only at the request of the NLRB official supervising the election.

While Vega was hardly an ideal observer, there is no proof here and no offer of proof that Vega ever suggested to any employee how he should vote. In Milchem, the Board announced its strict rule that any conversation, irrespective of its tenor, is suspect and can constitute an abuse which will avoid the election. However, the rationale of Milchem is to eliminate the last-minute advantage given a party who intrudes upon the privacy of the employee while he is in the polling place or is standing on line to vote. There is no indication here that Vega conducted any conversation with anyone in the polling place or polling area except perhaps to speak to one employee who had already voted.

Milchem involved activity by a party to the election and the rule was extended by the Board in General Dynamics Corp., 181 N.L.R.B. 870 (1970) to official representatives of the parties. We do not interpret General Dynamics to extend the polling area to a plant’s production areas. As Appendix A in that case establishes, the Union observer there stationed himself between the observers’ table and the voting booth. In his own testimony he admitted that he had misled voters by incorrectly pointing out to inquiring employees the position of a rival union’s place on the ballot. 181 N.L.R.B. at 875. The Board has elsewhere limited the Milchem rule to polling place conversations. Harold W. Moore & Son, 173 N.L.R.B. 1258 (1968); Marvil Int’l Security Serv., Inc., 173 N.L.R.B. 1260 (1968).

We conclude that, in view of the broad latitude vested in the Board over this purely administrative activity, it would be inappropriate for this court to extend the metes and bounds of Milchem to cover conversations outside the designated polling area. We find no abuse of discretion here on the part of the Board and no specific evidence which would warrant an evidentiary hearing. Bausch & Lomb Inc. v. NLRB, 404 F.2d 1222, 1226 (2d Cir. 1968).

II

The Board here has admitted that the Company’s request for a review of the decision of the Regional Director upholding the validity of the election was decided by a panel consisting of one Board member and two staff attorneys, a practice which this court in KFC National Management Corp. v. NLRB, 497 F.2d 298 (2d Cir. 1974) held to be a violation of section 3(b) of the Act, 29 U.S.C. § 153(b). The Company now argues that enforcement should be denied because of the violation of the quorum requirements and requests instead a remand to the Board in accordance with the decision in KFC National Management Corp. We decline to give the decision in that ease retroactive effect.

The Company here did not raise the question of the adequacy of the Board’s review procedure either in the representation proceeding or in the subsequent unfair labor practice case. The Board sought enforcement of its order in this court on March 1, 1974 and filed its certified list on April 11, 1974 and its brief on May 20, 1974. The Company first raised the issue with the Board by letter dated June 4, 1974.

As this court pointed out in KFC, “objections to administrative procedures must be timely made with the agency,” and this rule is “intended to preclude parties from raising their objections for the first time in the reviewing courts.” 497 F.2d at 300 n.1, and cases cited therein. Moreover, section 10(e) of the Act, 29 U.S.C. § 160(e), precludes court consideration of objections not urged before the Board unless the failure is excused by “extraordinary circumstances.” The only circumstance urged here is that KFC was decided on May 8, 1974, after the administrative proceedings had terminated. However, in United States v. Tucker Lines, Inc., 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952), the Supreme Court held that, in seeking a statutory review in the district court of the Interstate Commerce Commission’s denial of an application for a certificate of convenience, Tucker could not appropriately raise for the first time in the court the issue that the examiner presiding at the hearing was not appointed pursuant to the Administrative Procedure Act. Tucker’s objection was prompted by a decision of the Court in Riss & Co. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345 (1951) (per curiam), decided after Tucker’s administrative proceeding but before the federal court procedure. In Tucker, the Court disposed of the objection by noting:

Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice. 344 U.S. at 37, 73 S.Ct. at 69.

That consideration is controlling here.

In any event, the Company has already moved this court for the remand now sought and the motion was denied by order dated August 13, 1974. Since no opinion was written at the time, we deemed it appropriate to give some explication of our position in view of the large number of representation contests before the Board and the significant and unjustified administrative burden which would be placed upon the Board were we to rule otherwise.

Petition for enforcement granted.

      . Counsel for the respondent also argues that the Board practice of utilizing staff assistants in representation cases came as a great surprise and was not known to him, although he was a seasoned labor attorney with ten years’ experience as a field attorney for the Board. However, in KFC, supra, this court noted that a law review article in 1968 had described the practice. 497 F.2d at 301 n. 4. Moreover, the Board’s decision in KFC, wherein the challenge had been made in the administrative proceeding, was filed on June 29, 1973 and was published on August 13, 1973 (83 LRRM 1534), long before the enforcement procedure was initiated in this court.

      . Our decision that KFC should not lxex-e be applied retrospectively is supported by two further considerations. Although the enforcement of the three-member board rule in that case did not ignore the effect which its application would have in insuring the reliability of NLRB decisionmaking, the court recognized that Board practice had been to give “proxies” only in routine cases. 497 F.2d at 301. Prospective application would thus result in enforcement of unreliable orders only in exceptional cases. It is obvious, however, that the claim of electioneering here is little more than routine.
      Moreover, some weight should be given to the reliance of the Board on the legality of its practice, which at least arguably seemed supported by United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), and Eastern Airlines, Inc. v. CAB, 271 F.2d 752 (2d Cir.), cert. denied, 362 U.S. 970, 80 S.Ct. 954, 4 L.Ed.2d 901 (1959).


author: PER CURIAM:

text:
    Herbert P. CAPLAN et al., Appellants, v. John H. ROBERTS et al., Appellees.
    No. 73-2040.
    United States Court of Appeals, Ninth Circuit.
    Nov. 6, 1974.

      Raymond E. Ball, of Friedman, Collard & Kauffman, Sacramento, Cal., for appellants.
    Glen H. Ehlers, of Bullen, McKone & McKinley, Sacramento, Cal., for appellees.
    Before CHAMBERS and GOODWIN, Circuit Judges, and KELLEHER,] District Judge.

       Honorable Robert J. Kellelier, United States District) Judge for the Central District of California, sitting by designation.

   OPINION

PER CURIAM:

This appeal is from an order granting to appellee summary judgment in a diversity case. The central issue is whether the appellee is estopped from raising the defense of the statute of frauds in an action for damages based on his alleged breach of an oral contract.

In granting appellee’s motion for summary judgment, the District Court, applying California law, ruled that no estoppel applied. We affirm.

The uncontroverted facts established that an oral agreement was entered into in May of 1970 for the purchase by appellant from appellee of heavy construction equipment at a price of $35,000, f. o. b. Quarry Site, Butte, Montana. After an initial phone conversation in which the oral agreement was made, there were several conversations between the parties during the next ten months, including a visit by one of the appellant’s agents from its offices in California to Montana to inspect the equipment; in each such conversation appellant was confirmed in his belief that an agreement was in effect. When the oral agreement was made, similar equipment was available to appellant from four other sellers, but in reliance on the oral agreement, appellant refrained from obtaining the equipment from any of these firms. In further reliance on the agreement, appellant negotiated to resell the equipment to five separate buyers, anticipating profits from the resale of $30,500. In March of 1971, appellant demanded delivery pursuant to the oral agreement, but was then informed that appellee had sold the equipment to several other firms, one of whom was a firm with which appellant had negotiated a resale agreement. Similar equipment was no longer available in the local market or elsewhere.

Appellant filed suit in two claims, one on the contract and another in fraud, asking $30,500 actual damages for loss of profits and $25,000 punitive damages. Appellee moved for summary judgment, asserting as a defense the California statute of frauds, Section 2201 of the California Commercial Code, which provides that an enforceable contract for the sale of goods for a price in excess of $500 requires a sufficient writing signed by the party to be charged. In response, appellant argued that appellee should be estopped from using the statute of frauds as a defense.

Under California law, which appears to apply, and the parties do not suggest that any other applies, the doctrine of estoppel to assert the statute of frauds has been consistently employed by the courts “to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract . . . , or in the unjust enrichment that would result if a party who had received the benefits of the other’s performance were allowed to rely upon the statute.” Monarco v. Lo Greco, 35 Cal.2d 621, 623-624, 220 P.2d 737, 739-740 (1950). See also, Irving Tier Co. v. Griffin, 244 Cal.App.2d 852, 53 Cal.Rptr. 469 (1966).

In considering the two alternative theories of Monarco, supra, clearly the facts here reveal no unjust enrichment resulting from any benefits conferred on appellee by the part or full performance of appellant — there was no performance by appellant. Accordingly, we need only address the question of whether appellant would suffer unconscionable injury if appellee were allowed to assert the bar of the statute of frauds and thereby prevent the enforcement of the oral agreement.

In Little v. Union Oil, 73 Cal.App. 612, 238 P. 1066 (1925), a case with similar facts, the parties entered an oral agreement whereby the defendant agreed to supply the plaintiff with gasoline for one year. In reliance on the agreement, the plaintiff contracted with a third party to resell to them the gasoline supplied by defendant. The defendant subsequently refused to deliver under the contract, and the plaintiff in turn was unable to perform his contract with the third party, thereby losing the anticipated profits of the contract. The California appellate court affirmed the trial court’s rejection of this estoppel theory:

“Appellant’s position, in view of the facts pleaded, is that of one who, while he has relied on representations which, the other elements being present, would result in an estoppel, has not changed his position to his injury; but, the general market conditions being such that a resale at a profit is certain, he contends that to permit the seller to assert the invalidity of the oral agreement would result in a change of his otherwise advantageous position in the market and a consequent loss. The result of such application of the doctrine would be its use as an instrument of gain or profit, while its object is protective and limited to saving harmless or making whole the person in whose favor it arises.” (Citations omitted.) Supra at 620, 621, 238 P. at 1069.

Little controls here, for the only injury appellant, as the buyer under the oral contract, might have suffered from the seller's refusal to deliver, is the loss of the profit he was to make on the resale of the equipment. And, as Carlson v. Richardson, 267 Cal.App.2d 204, 208, 72 Cal.Rptr. 769 (1968) noted, the mere “loss of bargain, and damage resulting therefrom, do not themselves estop a seller from relying upon the Statute of Frauds.”

Having found that, under California law, appellee should not be es-topped from raising the defense of the statute of frauds as to the claim for breach of contract, we next turn to the claim in tort for fraud. The only basis in the record for the claim of fraud is the allegation in the original complaint that appellee did not intend to sell the equipment to appellant. Under California law, where the alleged oral agreement is unenforceable under the statute of frauds, a buyer cannot recover from a seller for fraud on the ground that the oral promise was made without the intention of performing it. Kroger v. Baur, 46 Cal.App.2d 801, 803, 117 P.2d 50, 52 (1941). In Kroger the Court noted that if the law can be nullified by “the transparent device of predicating a tort action upon the invalid oral promise on the ground that the promisor did not intend to perform it, then the section might just as well be stricken from the statute. To license such a circuitous procedure to evade the provisions of such legislation would be to nullify and destroy its wholesome effect and the protection it affords against fraud. . Without the protection of the statute, the defendant is called upon to meet the bald assertion of a promise to which he can interpose nothing but his simple denial.” Supra, at 803, 117 P.2d at 52.

While we have determined that under California law appellee should not be es-topped from raising the statute as a defense, this case is before us on appeal from a grant of summary judgment and, therefore, we look to the law of this Circuit to decide if that motion was properly granted.

Summary judgment is “proper only where there is no genuine issue of any material fact or where viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law.” Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 63 (9th Cir. 1973). In California, unless but one inference can be drawn from the evidence, estoppel is a question for the trier of fact. Irving Tier Co. v. Griffin, supra, 244 Cal.App.2d at 861, 53 Cal.Rptr. 469; Goldstein v. McNeil, 122 Cal.App.2d 608, 265 P.2d 113 (1968). But the mere allegation of an oral contract and reliance thereon, however, is alone insufficient to require submission of an estoppel claim to the trier of fact. See Carlson v. Richardson, supra, 267 Cal.App.2d at 208, 72 Cal.Rptr. 769.

After a review of all the facts, as to which no genuine issue exists, we are of the opinion that no unconscionable injury would be incurred by appellant if he were prevented from enforcing this oral agreement. We are persuaded that this is the only conclusion that might reasonably and properly be drawn from the facts.

Judgment affirmed.