author: LEVIN H. CAMPBELL, Circuit Judge. PER CURIAM.

text:
    BOSTON CHAPTER, N.A.A.C.P., INC., et al., Plaintiffs-Appellees, v. Nancy B. BEECHER et al., Defendants-Appellees, Director and Commissioners of Civil Service, Defendants-Appellants.
    No. 74-1067.
    United States Court of Appeals, First Circuit.
    Argued May 7, 1974.
    Decided Sept. 18, 1974.
    Costs Allocated Nov. 8, 1974.

      Edward D. Kalman, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., Boston, Mass., were on brief, for appellants.
    David L. Rose, Atty., Dept, of Justice, with whom Stanley Pottinger, Asst. Atty. Gen., Washington, D. C., James Gabriel, U. S. Atty., Boston, Mass., and James M. Fallon, Atty., Dept, of Justice, Washington, D. C., were on brief for United States, appellee.
    Patrick J. King, Boston, Mass., with whom Thomas A. Mela, Boston, Mass., was on brief, for N.A.A.C.P. et al., ap-pellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

For many years applicants for the position of fire fighter in the cities and towns of Massachusetts have had to pass a written multiple-choice' test (the “test”), administered by the Massachusetts Division of Civil Service. The Division appeals from a district court decision holding the test insufficiently related to a fire fighter’s duties to justify its disproportionate impact upon black and Spanish surnamed applicants and ordering a preference to be given members of those minorities, in future hiring, to remedy past discrimination. 371 F.Supp. 507 (D.Mass.1974).

Two actions brought against Boston, its Fire Commissioner and Massachusetts Civil Service officials were consolidated in the district court. The first was brought late in 1972 by the Boston Chapter, N.A.A.C.P., Inc., and by black and Spanish surnamed individuals under 42 U.S.C. §§ 1981, 1983, and the Fourteenth Amendment. Plaintiffs alleged that standards and procedures for recruiting and hiring fire fighters had the forseeable effect of discouraging minority employment. The test, a swim requirement, and the disqualification of those with felony records were all challenged. A second action was brought early in 1973 by the Attorney General of the United States under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972. Both suits sought not only orders forbidding the challenged practices but also remedial hiring of enough minority individuals to offset past discrimination.

The district court held a hearing at which evidence was introduced concerning the alleged discriminatory hiring practices and the disproportionate racial impact of the test. After the hearing the parties stipulated that it would be treated as one on the merits of the testing issue, but would cover only the “preliminary injunction stage” of the recruiting- challenge. Objections to the felony disqualification and the swim test were not pressed at the hearing, but have not been abandoned. The district court’s opinion and judgment enjoined use of the test in its current form, ordered Boston and its Fire Commissioner to engage in additional recruiting of minorities, and awarded minorities a preference in hiring to ameliorate the effects of past discrimination. Boston and its Fire Commissioner took no appeal from the court’s adverse rulings.

I

In Castro v. Beecher, 459 F.2d 725, 732 (1st Cir. 1972), we held that an employer may use a means of selection having a “racially disproportionate impact” only if he can show “that the means is in fact substantially related to job performance”. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The approach is thus two-pronged: those challenging an employment test must establish its disproportionate impact by demonstrating that, for whatever reason, it is more of a hurdle for minority members than for others; once this is shown, the test’s proponents acquire a burden of justification and must “prove that the disproportionate impact was simply the result of a proper test demonstrating lesser ability of black and Hispanic candidates to perform the job satisfactorily”. Vulcan Society v. CSC, 490 F.2d 387, 392 (2d Cir. 1973).

Some courts, including the court below, describe the showing plaintiffs must make as a “prima facie case” of “racial discrimination”. We use “racially disproportionate impact” because it is a neutral and seemingly more accurate description. A means of selection may disqualify proportionally more minority candidates than others and thus have a racially disproportionate impact, yet not be discriminatory in the constitutional sense. In Castro, for example, we approved a high school diploma requirement for police even while recognizing a disparity between blacks and Spanish surnamed candidates and others in respect to a high school education We thought a high school education was a “bare minimum for successful performance of the policeman's responsibilities”. Castro, supra 459 F.2d at 735. But we disapproved a paper-and-pencil test which also bore more heavily on blacks and Spanish than others because it was not proven “convincingly” that there was a “fit between the qualification and the job”. Id. at 732.

Plaintiffs usually meet their initial burden by demonstrating that minority candidates have a higher test failure rate; defendants are then put to their proof of job-relatedness. Here, however, the district court found inadequate the only available sampling showing how blacks and Spanish have fared on the test, although it found much evidence that blacks and Spanish have held disproportionately few jobs in the fire departments of the major Massachusetts cities where most of them reside. Until recently relatively few minority members applied for fire fighting jobs, resulting in a very small sample from which to draw conclusions about their comparative test performance.

The district court concluded that the census figures, especially those for Boston and Springfield, when used “in support of the meager exam statistics”, established a prima facie case of the test’s discriminatory effect. The court correctly noted that

“such a finding is not determinative of the issue but merely shifts the burden to the defendant to justify the use of the exam. This is a burden a public employer should not be unwilling to assume.” 371 F.Supp. at 514.

We need not decide whether census figures showing a gross disproportion-ality in the employment of black and Spanish surnamed fire fighters and others are enough, standing alone, to shift the burden of justification to defendants. In Castro, when dealing with a relatively innocuous height requirement, we declined to impose a burden of justification upon defendants in the absence of any evidence that the height requirement adversely affected minority candidates. On the other hand, the present test, given for more than half a century, is a far more salient selection device, and it can be argued that a showing of significant disproportion-ality in minority employment, coupled with even minimal proof of a higher minority failure rate, is enough to shift to the Division of Civil Service the burden of justification. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Disproportionate impact or prima facie discrimination are simply labels that aid in singling out qualifications which it is reasonable to ask an employer to justify; “complete mathematical certainty” is not required. Vulcan Society, supra 490 F.2d at 393. When widespread minority underemployment is shown to exist in a given occupation, primary selection devices should not be immunized from study by placing an unrealistically high threshold burden upon those with least access to relevant data. This seems especially so when the small size of the sample may be traceable to the test’s discouraging effect as well as to unequal recruitment practices.

But we do not decide on this issue alone. What in our view conclusively tips the scale in plaintiffs’ favor is the uncontroverted testimony, from experts called by both sides, that black and Spanish surnamed candidates typically perform more poorly on paper-and-pencil tests of this type. See Cooper & Sobol, Seniority & Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring & Promotions, 82 Harv.L.Rev. 1589, 1640 (1969). (Cf. Castro, supra, where black and Spanish police candidates were shown to have performed more poorly than did whites on a test of similar design.) In light of the expert testimony, we cannot say that the district court was clearly erroneous in its ultimate fact finding that plaintiffs had established a prima facie case. The burden thus shifted to the defendants to justify the test by showing that it was job-related.

That Massachusetts did not intentionally discriminate is immaterial. Title VII proscribes “standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions”. McDonnell Douglas Corp., supra, 411 U.S. at 806, 93 S.Ct. at 1826. See Griggs, supra, 401 U.S. at 431-432, 91 S.Ct. 849. Equitable relief under the Civil Rights Act and the Fourteenth Amendment requires no proof of malice or “fault”. “The result, not the specific intent, is what matters”. Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972). See Inmates of the Suffolk County Jail v. Eistenstadt, 494 F.2d 1196 (1st Cir. 1974), application for cert. filed, No. 73-1992 (U. S. July 8, 1974). The question is whether the test denied applicants equal protection of the laws by creating “built-in headwinds” for those who, although qualified to perform the job, cannot pass the test. If it did, the inequality may be remedied without regard to official malice, specific intent, or actionable neglect.

II

The district court found that defendants had not met their burden. The defendants’ major task in doing so was to show a substantial relationship between the test results and job performance. A test fashioned from materials pertaining to the job (here, from a preliminary fire fighters’ manual) superficially may seem job-related. But what is at issue is whether it demonstrably selects people who will perform better the required on-the-job behaviors after they have been hired and trained. The crucial fit is not between test and job lexicon, but between the test and job performance.

In fairness to the state, we must not forget that civil service tests were instituted to replace the evils of a subjective hiring process. Little will be gained by minorities if courts so discourage the use of tests that the doors to political selection are reopened. Moreover, a test, even one the cutoff of which does not demonstrably predict job performance, may serve worthwhile goals in gross by sifting from the ppol of potential applicants those without enough motivation even to try to acquire the skills the test demands, and by discarding some few candidates who take the test but whose mental ability is so low that they are obviously unsuitable. Finally, it is virtually impossible for an employer to justify to a mathematical certainty every selection device. Controlled experiments in which applicants are hired without regard to their test scores may be impractical in many cases, and so those who fail the test often are not available to be evaluated on the job. If they are not, it is impossible to prove that they would have performed less competently.

Nonetheless, we think that the judgment of the district court is amply supported by the record, and we agree with it. Too many doubts persist concerning the validity of this test, the format of which has persisted for years, to make a convincing case for its unaltered use in fire departments notable for the absence of minority employees. Although perfect tests are goals as illusory as perfect schools or perfect courts, the evidence justifies compelling defendants to attempt to fashion a more sensitive test, one that will not needlessly serve as a “built-in headwind” to competent minority members, depriving both them and the Commonwealth of an opportunity for which they are qualified.

The test in recent years has had two parts, one of twenty-five questions covering current events, spelling, vocabulary and arithmetic, and the other of seventy-five questions taken verbatim from the “Red Book”, a fire fighter’s preliminary manual available from state officials. A score of 70 is required for qualification. Some questions call for considerable verbal skill: an applicant is asked whether “condense” means “(a) conduct (b) expand (c) evaporate (d) contract” and to recognize that “pres-surised” rather than “bouyancy” was misspelled. The second part asks questions such as: “the name given to the fire fighter who carries the play pipe end of the hose up the ladder is (a) en-gineman (b) pumpman (c) nozzleman (d) hoseman”. In some instances, questions on the second part required knowledge of apparently obsolete equipment.

The test was not professionally developed. The civil service examiner who wrote the latest versions was without professional training in employment or psychological testing, and did not consult with anyone who had such training. No analysis of required job skills was conducted, and the author (who was not skilled in fire fighting) relied on the civil service “poster” setting forth the principal “duties” of a fire fighter, and on the Red Book. After a test was given, civil service personnel would analyze 50 to 100 answer sheets and, in later versions, eliminate questions that were too easy (because most people got them right) or too hard (because most answers were wrong). The “passing” score of 70 was selected arbitrarily, without reference to the expected or actual distribution of scores.

The general questions in the first part of the test have nothing to do with firefighting, and plaintiffs’ expert was of the opinion that they were not useful even as an index of general intelligence. Defendants may plan to delete such questions in the future; in any event, unless the correlations discussed below between the overall test scores and the performance of certain groups of tasks by selected fire fighters may be said to validate the first-part questions, there is no evidence at all that they are job-related.

The second-part questions deal with fire fighting, yet there is a difference between memorizing ■ (or absorbing through past experience) fire fighting terminology and being a good fire fighter. If the Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocabulary, the team might acquire authorities like John Rieran but who could not bat, pitch or catch. The test does not examine traits seemingly more relevant to a fire fighter's performance such as agility, stamina, quick thinking under pressure, poise, mechanical aptitude and the ability to work with others. Experts for both sides agreed that verbal memory is not a very important attribute for the job. And unlike the motor vehicle rules covered in a driver’s test, it seems unessential whether the candidate absorbs the tested vocabulary before or after acceptance. Nomenclature and similar matters can be mastered during training and on the job. Testing them before acceptance puts a premium on ability to memorize terms that, at the time, contain only abstract meaning.'

Because the test measures a type of achievement not especially relevant to the job, one would not expect it to predict job success. It may be, however, that neither the test designer nor the court can understand how the score on the test successfully predicts. Perhaps, for example, the questions about machines are indirect indicators of mechanical aptitude. Recognizing these possibilities, the district court felt that careful scrutiny of any claimed predictive value was in order. We agree, and now seek to answer whether, against all odds, the test has been shown to be an actual predictor of on-the-job success.

Defendants attempted to establish job-relatedness through an expert engaged to conduct a validation study. See generally the test validation Guidelines of the EEOC, 29 C.F.R. § 1607. The expert stated that, in his opinion, his study established that the test was valid under the Guidelines which, according to Griggs, supra, 401 U.S. at 434, 91 S.Ct. 849, should be treated as “expressing the will of Congress”.

The validation study conducted by defendants’ expert had two parts. The first part sampled “objective” measures of job performance-, such as all of the chores involved in raising a ladder and properly evolving the fire hose and its connections. These chores were further broken down into discrete components, and observers of the test subjects’ performance gave either credit or no credit for each component. The total score of each subject was then added and compared to his test score both on an overall basis and on a chore-by-chore basis. It was found that the performance on the test “predicted” (was correlated to) the performance scores on a number of the chores.

The second part of the validation study involved rating of fire fighters by their superiors on twelve “subjective” performance scales, including such diverse measures as “holding up under pressure” and “overall job effectiveness”. None of these twelve scales, nor the combination of the twelve scales together, correlated significantly to the scores on the test.

Defendants’ expert contended that the test was valid in spite of its failure to correlate to the overall measures of job performance, and suggested that the Guidelines were satisfied by the statistically significant correlation between the test and two of the objective measures. The district court, however, concluded that the correlations were “barely significant” and concluded that defendants had not demonstrated that the test was “in fact substantially related to job performance”. It stated that:

“The fact that only two significant correlations were found between the exam and components of job performance — components which represent only a fraction of those duties a firefighter encounters — and the fact that those correlations were only minimally significant does not constitute ‘convincing’ evidence of job relatedness.” 371 F.Supp. at 517-518.

The district court’s conclusion was not erroneous. Substantial doubt is cast on the test’s validity by its failure to correlate at all with any of the subjective ratings or with the overall objective ratings. Only two of the tasks on the objective portion of the study correlated with the test, and the correlation there was not impressive. These rather meager signs of validity do not convince us, nor did they convince the district court, that the test is, as Castro demanded, “substantially related to job peformance”. The state has not come forward with “convincing facts establishing a fit between the qualification and the job”. Id. 459 F.2d at 732. We do not think the district court was bound to find either compliance with the Guidelines or “job-relatedness” in a more general sense. The Guidelines are not satisfied by just any correlation to any facet of job performance. They require close scrutiny of “the use of a single test as a sole selection device . . . when that test is valid against only one component of job performance”. § 1607.-5(c). The test here, and the validation study performed by defendants’ expert do not survive close scrutiny.

We have already indicated several difficulties with the test: it was not professionally developed; its content does not appear to be job related; the cutoff score of 70 is arbitrary; the validation study reveals no correlation to overall measures, either subjective or objective, and only minimal correlation to two individual objective tasks. Another significant defect in the evaluation — a defect that from defendants’ point of view is perhaps unavoidable, although see Guidelines § 1607.9(b) — is that the groups evaluated consisted entirely of fire fighters who had passed the test. No one who had received a score lower than 70 was included. The validation study was therefore “concurrent” rather than the more useful “predictive” type. See United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) (validation study unacceptable because concurrent). Since no one scoring less than 70 was evaluated, there is no evidence that those failing would be less capable as fire fighters than those passing. Although there is probably some score that would reflect substantially deficient motivation or ability to understand or communicate, so that such an applicant would be unsuitable even for a job that does not emphasize paper-and-pencil skills, we do not know where that point may be.

The data which the study did produce is said to reveal that fire fighters who passed and got high scores were superior in a few ways to fire fighters who passed with lower scores. We are then asked to infer that applicants who fail the test would have performed the same tasks more poorly still. The inference is a difficult one to draw. A very high passing score might indicate a special motivation or knowledge. On the other hand, the differences reflected by test scores in the range of 50 to 80 might be altogether negligible. We cannot tell. But a correlation within the range of 70 to 100 can easily be produced by data that would indicate no significance in differences in the 50 to 70 range. Particularly when the data are concurrent, the correlations should be more striking than they were here.

We also find it significant that the defendants never attempted to demonstrate that alternatives to the test are unavailable. The Guidelines require such proof, § 1607.3. In its absence, we hesitate to approve a test of racially disproportionate impact and slight, if any, validity.

Finally, although we do not find them necessary to the result we reach here, we have doubts about the way in which the validation study was performed. The sample for the study was selected from a single administration of the test. But on average those hired for civil service jobs are selected in their order on the roster of eligibles, which is ranked from highest to lowest (with the exception of veterans) in test score. From any given list the highest ranking persons have been hired the earliest. Therefore, the sample for the study would seem biased; those with higher scores also had additional experience on the job. Could it be that the few observed correlations are explained by on-the-job experience rather than test score ?

Moreover, no attempt was made to explain the effects, if any, of filtering that occurred even after the examination. Those who passed the test but would have made poor fire fighters may have been filtered from the sample by the time of the study because of voluntary resignations, release for unsuitability in training or on the job, failure of the physical, etc. Those remaining in the sample of the study are a select group indeed, while those who failed the test but would perhaps have made good fire fighters are entirely missing from the sample.

Even if the test is minimally valid, we might also doubt its use as an absolute cutoff. A test seemingly should receive no more weight in the selection process than its validity warrants. Use of a minimally valid test as an absolute cutoff is questionable even if more limited uses of the test are acceptable.

Finally, no effort has been made to include minorities in the sample of the study. The Guidelines so require, §§ 1607.4(a), 1607.5(b)(5). The Georgia Power court has agreed. The challenge leveled at the test is that it has a disproportionate and unwarranted impact on minority group members; it is difficult to quantify this impact — or to disprove it — unless some of those who were allegedly adversely affected are included in the study. We understand the practical difficulties, particularly in a job population almost devoid of minorities. But we urge that consideration at least be given to the problem as a new test is evolved.

There are, in sum, too many problems with the test for us to approve it here. The district court was correct in ruling that defendants had not discharged their burden.

III

There remains for discussion the remedy selected by the district court. In Castro we required the district court, as a means of ameliorating the continuing effects of past discrimination, to institute a program of color-conscious relief that included priority pooling of minorities, with choices made from the priority pool until it was exhausted. See 365 F.Supp. 655 (D.Mass.1973) (consent decree on remand).

The relief ordered in the instant case follows this pattern. The court first enjoined use of the eligibles list from the most recent test and enjoined any further administration of any similar test until it was validated. This was the proper course under our decision in Castro. Cf. Vulcan Society, supra; Bridgeport Guardians, Inc. v. Bridgeport CSC, 482 F.2d 1333 (2d Cir. 1973). The court then created four eligibility groups: in Group A will be all black and Spanish surnamed applicants who took and failed any previous test, but who pass any new and valid test. In Group B are all persons on the current eligibility list. Group C will contain all black and Spanish surnamed persons who do not belong in Group A but who pass a new examination and are otherwise qualified. Group D will be composed of all other persons who pass the new examination. Any Massachusetts community subject to the Civil Service law and having a minority population of one percent or more must submit requisitions to the Division of Civil Service for any fire fighter openings they may seek to fill. The Division is then to certify candidates to such departments by means of a matching procedure designed to ensure that each Group receives proportional representation in accordance with their qualifications. Groups A and B are to be given initial preference on a one-to-one basis, and the other Groups are to be drawn upon as A and B are exhausted. The ratios to be implemented for Boston and Springfield are slightly different than those for the rest of the state, in recognition of their larger minority populations. In all cases new eligibility lists from successive entrance tests shall be used to replenish Groups C and D. The decree remains in force, for each local fire department, until that department attains sufficient minority fire fighters to have a percentage on the force approximately equal to the percentage of minorities in the locality. After that point the locality is freed from the decree and may make appointments on any nondiseriminatory basis. In no case must any unqualified minority person be appointed; if no qualified applicants are available, none will be appointed.

Defendants contend that the color-conscious relief imposed by the district court is unconstitutional. The argument is without merit. The relief goes no further than to eliminate the lingering effects of previous practices that bore more heavily than was warranted on minorities This court has stated:

“[I]t would be consistent with the goal of equal opportunity to give first priority to members of a minority that had previously been denied equal opportunity, if those members were otherwise as qualified as were qualified members of the majority population.” Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9, 18 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974).

See also, e. g., Morrow v. Crisler, 491 F.2d 1053 (5th Cir. en banc 1974) (withholding quota relief is abuse of discretion); NAACP v. Allen, 493 F.2d 614, 618-620, nn. 7-10 (5th Cir. 1974) (collecting cases); United States v. Masonry Contractors Ass’n of Memphis, Inc., 497 F.2d 871 (6th Cir. 1974); Carter v. Gallagher, 452 F.2d 315 (8th Cir. en banc 1974); Rios v. Enterprise Ass'n Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974). The goal of color blindness, so important to our society in the long run, does not mean looking at the world through glasses that see no color; it means only that all colors are moral equivalents, to be treated on an equal basis. We believe that our society is well served by taking into account col- or in the fashion used, and carefully limited in extent and duration, by the district court.

Defendants next contend that, even if the use of color-conscious relief is not forbidden by the Constitution, it is prohibited by Title VII itself, which states in § 703(j), 42 U.S.C. § 2000e-2(j):

“Nothing contained in [Title VII] shall be interpreted to require preferential treatment to any individual . . . because of race, color, religion, sex, or national origin of such individual on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin ... in comparison with the total number of [sic] percentage of persons of such race, color, religion, sex, or national origin in any community. . . . ”

Defendants contend in effect that, whatever may be the case when a court undertakes to correct the continuing effects of previous intentional racial discrimination, § 703(j) conclusively withdraws from the district court the power to grant color-conscious relief when the discrimination is unintentional. Although this argument has recently found eloquent support in the dissent of Judge Paul Hays in Rios, supra, we do not accept it. We agree with the majority in Rios that relief undertaken in order to redress past discrimination, whether or not intentional, is permitted. Section 703(j) deals only with those cases in which racial imbalance has come about completely without regard to the actions of the employer. And the dispute over the intent of the framers of Title VII is largely ancient history. See generally Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U.Chi.L.Rev. 732 (1972). Title VII was amended in 1972 and the legislative debates at that time, particularly the failure of Congress to pass the Dent Amendment, which would have foreclosed all affirmative action plans and racial balance relief, lend support to an inference that Congress ratified the power of the courts to impose color-conscious relief of the sort that had been approved in several cases at the time the attempts to amend the amendments to Title VII failed. For the history of this episode, see id. at 747-60. We believe that the history of the 1971-72 amendments, and failures to amend, together with the weight of judicial authority, warrant our rejection of defendants’ Title VII claim.

Edward D. Kalman, Assistant Attorney General, with whom Robert H. Quinn, Attorney General, and Walter H. Mayo III, Assistant Attorney General, were on brief, for appellants.

David L. Rose, Attorney, Department of Justice, with whom J. Stanley Pot-tinger, Assistant Attorney General, James Gabriel, United States Attorney, and James M. Fallon, Attorney, Department of Justice, were on brief, for United States, appellee.

Patrick J. King, with whom Thomas A. Mela was on brief, for N.A.A.C.P. et ah, appellees.

The other arguments raised by defendants have been examined and found to be without merit. The judgment is

Affirmed.

ON MOTION IN OPPOSITION TO TAXATION OF COURT COSTS

PER CURIAM.

In Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017 (1st Cir., 1974), this court affirmed the district court’s decision, 371 F.Supp. 507 (D.Mass.1974), finding a state-administered entrance examination for firemen to have a racially discriminatory impact, and ordering injunctive relief. Under Rule 39(a) of the Federal Rules of Appellate Procedure, costs of appeal are to be taxed against the losing party unless otherwise ordered. Appellees N.A.A.C.P. et al. filed a bill of costs for $49.50, and appellants director and commissioners of the state civil service division oppose a taxation of these costs against them on the ground that it would constitute an award of money against the state in violation of the eleventh amendment. While the amount in controversy here is relatively insignificant, the issue raised is of importance to the everyday practice before the federal courts.

Appellants rely on Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), in which the Supreme Court held that the eleventh amendment barred a federal district court from awarding retroactive benefits under a federal-state public aid program. The Court in Edelman distinguished what it found in effect to be a money judgment payable out of the state treasury directly, from the prospective injunction upheld in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), even though in the latter ease the necessity for state officials to shape their conduct to the Court’s mandate might have had a substantial “ancillary effect” on the state treasury. 415 U.S. at 668, 94 S.Ct. 1347. Since Edelman, courts of appeals have divided on whether a federal court may award attorneys’ fees against an uncon-senting state, an issue which is analytically similar to the question of awards of costs. An award of attorneys’ fees was upheld in Class v. Norton, 505 F.2d 123 (2d Cir., 1974). Before Edelmcm, the same result was reached in Gates v. Collier, 489 F.2d 298 (5th Cir., 1973), and in Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972), aff’d mem., 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1973). However, two other courts of appeals, attaching little precedential weight to the Supreme Court’s summary affirmance without opinion in Sims, have cited Edelman as requiring the contrary conclusion. Jordan v. Gilligan, 500 F.2d 701 (6th Cir., 1974); Skehan v. Board of Trustees, 501 F.2d 31 (3d Cir., 1974).

As the Court in Edelman observed, 415 U.S. at 667, 94 S.Ct. 1347, the line between permissible relief and that barred by the eleventh amendment will not always be clear. And we acknowledge that an award of court costs cannot be neatly categorized as either prospective or retroactive. An award of costs does operate as a direct levy on the state’s general revenues and as a form of compensation to the winning party. On the other hand, costs are not awarded for accrued liability, but rather are assessed for certain litigation expenses in accordance with the generally mechanical provisions of Rule 39. The precise purposes behind this rule and the prior traditional practice of taxing costs are not clear, but no doubt an award to some degree serves to discourage litigiousness and frivolous claims, as well as to induce compliance with the rulings of the court. In this sense allocation of costs is an incident to the court’s jurisdiction and judgment in the main action.

In Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168 (1928), there is support for the view that the power to tax court costs is to be characterized as an incident to the hearing and not within the scope of a state’s sovereign immunity if the federal court’s exercise of jurisdiction over the state party in the action in the main is valid. The Court in Fairmont held that sovereign immunity did not protect a state against a judgment for costs in litigation before the Supreme Court on an appeal from the final judgment of the highest state court. While acknowledging that a sovereign is immune from costs awarded by its own courts, the Court stated that a state loses some of its sovereign character when it is forced to appear before the Supreme Court under the Supremacy Clause on a matter of federal and constitutional law. According to the Court the “incidents of the hearing are those which attach to the regular jurisdiction of this Court,” and the awarding of costs was one such incident that had been “the invariable practice” in judgments against a state in both civil and criminal cases, before that Court. Id. at 77, 48 S.Ct. at 100. Courts in this circuit have awarded costs and attorneys’ fees against state officials when the state was the real party in interest. E. g., Hoitt v. Vitek, 361 F.Supp. 1238, 1255 (D.N.H.1973), aff’d, 495 F.2d 219 (1st Cir. 1974).

In view of the above considerations and precedents, we conclude that the eleventh amendment does not immunize appellants from being taxed for costs.

      . This was brought and certified as a class action. The first certified class was “All black or Spanish-surnamed persons who have applied for the position of firefighter in any fire department . . . subject to Massachusetts Civil Service law, but have not become eligible for appointment under existing requirements”. The other class included all who never applied because they were deprived of information concerning fire fighter employment opportunities.

      . Cf. Berkelman v. Unified School Dist., 501 F.2d 1264, pp. 1265-1268 (9th Cir. 1974).

      . Applicants taking the August 1971 test were given the option of identifying their race, color or national origin. 84% did so. Out of 33 individuals self-identified as black or Spanish, 13 or 39% passed. The court felt the statistics were “obviously meager” and declined to find that “in themselves” the.v established a prima faeie ease, although, insofar as they went, the statistics showed a disparity, because of 3089 Caucasians, 1737 or 56% passed. Cf. Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972) ; Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971).

      . 1970 census figures show that in Boston, with a 1970 black population of over 16%, black fire fighters ’ made up less than 1% of the force; Springfield’s black population exceeded 12% but blacks made up less than 0.-2% of the force. And, as the district court pointed out, the combined black and Spanish minority in Boston is today probably closer to 23% than to 16%. Cambridge shows a lesser discrepancy, although still a very sizable one. New Bedford and Worcester, with smaller minority populations, reflect the least disparity. Census data as to Spanish surnamed individuals show that nearly 3% of Boston’s population, but only 0.1% (two individuals) of the fire department, fit within that category. Springfield has no Spanish surnamed fire fighters, although Spanish comprise 3.4% of its population. Cambridge, New Bedford and Worcester had substantial disparities.
      We find no error in the district court’s reliance on statistics pertaining to the cities proper rather than to metropolitan regions. Cf. Town of Milton v. CSC, Mass.1974, 312 N.E.2d 188. We note that even within the Greater Boston area, with a black population in 1970 of 4.6%, the disparity is substantial ; the same is true in Springfield. ¡See also Associated General Contractors of Massachusetts, Inc. v. Altshuler, 361 F.Supp. 1293 (D.Mass.1973), aff’d, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974).
      It would, of course, be unreasonable to expect perfect correlation between ethnic groupings and the holders of a particular job, but when there is only one minority fireman out of 475 in a city like Springfield with a large black or Spanish surnamed population, the imbalance is obvious.

      . Mayor of the City of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974), is not to the contrary. The Court emphasized that in many cases it is proper to infer discriminatory intent or impact from racial statistics. Id. 415 U.S. at 619-021, 94 S.Ct. at 1333. See also Biss, A Theory of Fair Employment Laws, 38 U.Chi.L.Rev. 235, 270-81 (1971).

      . Plaintiffs argue tliat the vice of the test is as much its tendency to discourage minority members from applying as that minority applicants may be exj)ected to perform less well. If so, this is a reason for not holding the smallness of the sample against plaintiffs. Moreover, the sample of those minorities who do take the test is self-selected; and, for all we know, only especially motivated and competent minority members took the test. The 39% passing rate might be higher than the rate would be from a random sample. In any event where, as here, the minority sample is disproportionately low, it is both dangerous to rely too heavily on the figures and unfair to ignore them entirely.

      . Any written test in English would seem obviously harder for persons whose native tongue is Spanish. Other evidence at trial supported the view that the test bore more heavily on minorities. For example, the court found that Boston fire fighters were often recruited by relatives and friends. Minority apjdicants, lacking access to such sources of aid and advice, might find it harder to absorb the technical subject matter covered in the test. They could try to memorize the “Red Book”, but such information is doubtless more easily absorbed by those exposed to fire fighters and firehouse routines. Such considerations do not, of course, invalidate the test; they are merely additional reasons for inquiring into its utility as a tona fide predictor of job performance.

      . The standard would, of course, be different were we considering a damages award against individual officials. Cf. Palmigiano v. Mullen, 491 F.2d 978, 980 (1st Cir. 1974).

      . Applicants with a score of 70 or above were rated for prior training and experience, and this rating was incorporated into a composite rating. The composite was determined 70% by the test and 30% by the training and experience score. A composite score under 70 resulted in rejection. Thereafter the applicant was required to pass a medical, meet certain strength requirements, and demonstrate good moral character (including an absence of felony convictions). Applicants meeting these further requirements are then ranked by their composite scores from 100 down to 70. However, disabled veterans are ranked ahead of veterans, and veterans ahead of non-veterans regardless of score. The list of eligibles thus created continues in force until exhausted or for two years. Previous lists have all expired by exhaustion when all eligibles were offered positions.
      Localities may set their own additional education and residence requirements. Fifteen departments, not including Boston, require a high school diploma or equivalency. All localities require the applicant to be a resident.

      . Because the questions often changed it seems possible that the same person in sue-cessive administrations of the test -would not receive the same or a comparable score. This is a problem in testing even when the questions are constant. See American Psychological Ass’n, Standards for Educational and Psychological Tests & Manuals 25-32 (1966), incorporated by reference in EEOC Guidelines, 29 C.F.R. § 1607.5(a). No reliability study of the tests has ever been conducted.

      . The district court committed no abuse of discretion in permitting plaintiffs’ expert to testify. She was a psychologist with distinguished credentials who was engaged in a fire fighters’ test validation study. The qualifications of experts are largely matters within the district court’s discretion. See Texas Instruments, Inc. v. Branch Motor Express Co., 432 F.2d 564, 566 (1st Cir. 1970).

      . The correlation between the test and all supervisory ratings was r=0.078. Were this statistically significant, it would indicate that the grade “explained” only approximately 0.6% of all observed variance in fire fighters’ on-the-jcb performance.

      . The objective portion of t’..e study produced several correlations that were statistically significant (likely to occur by chance in fewer than five of one hundred similar cases) and practically significant (correlation of ± 0.3 or higher, thus, explaining 9% or more of the observed variation). Of the seven statistically significant correlations, four were not practically significant. Of the remaining three correlations, only two were correlations between the test and an objective measure; the third was a correlation between the composite mark and an objective measure.
      Defendants’ expert also found that there was no statistically or practically significant correlation between test scores and all objective criteria taken together.
      Thus of all possible measures, the test score produced a meaningful correlation only to air mask operation and to the subject’s performance as loop man in the evolution of the hose line.

      . Another way to make the same point is to say that a test should be valid for the purpose for which it is used. Apparently nearly all those who score over 70 and are placed on an eligibles list are eventually offered employment. Thus, the test is not chiefly used to choose between a score of 70 and a score of 95, and it is not particularly helpful to know that the applicant with a score of 95 is apt to excel. The test’s main use is to choose between the applicant with, for example, a 65 and the applicant with a 71; but because the validation study is concurrent, we do not know whether it is valid in that range.

      . Group A shares with Groups C and D the criterion of passing a new and valid test. It is possible that no such satisfactory examination can be devised and validated within a reasonable time. If this should occur, the district court may of course amend the decree, should a party so request, to provide for placement into groups based on alternative non-discriminatory criterion,

      . Nor will the order result in the firing of those who have received provisional appointments pursuant to the current, but now invalid, eligibility list. Those temporary appointees will be placed at the top of the (5 roup B list, and their appointments made permanent on a one-to-one basis with permanent appointments from Croups A and C. None will be fired.

      . Theoretically it might be possible for defendants to demonstrate that, even though the test has an unjustified racially disproportionate impact, the disparity in resulting emjdoyment is primarily accounted for by neutral means. In the case of many northern cities, this could come about because blacks and Spanish surnamed individuals had arrived in Boston in large numbers only in recent years, so that those fire fighters hired prior to the recent increase in minority population were “justifiably” predominately white. The data support the contrary hypothesis, however. In spite of the increased percentage of minorities in the Boston area, the Boston Fire Department has since 1960 appointed 805 fire fighters, only six (0.745%) of whom were black and two (0.248%) of whom were Spanish sur-named.

      . Compare Blumrosen, Strangers in Paradise : Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich.L.Rev. 59 (1972), with Wilson, A Second Look at Griggs v. Duke Power Company : Ruminations on Job Testing, Discrimination & The Role of the Federal Courts, 58 Va.L.Rev. 844 (1972) ; Developments in the Law — Employment Discrimination & Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109 (1971) ; Note, Employment Testing: The Aftermath of Griggs v. Duke Power Company, 72 Colum.L.Rev. 900 (1972).

      . In the context of this suit the dispute might also be an unnecessary one. Only the suit by the United States is brought under Title VII. The NAACP’s § 1893 suit may be completely free of whatever limitations Title VII may contain. In any case, there is no need for us to decide the matter here.


source: Caselaw Access Project

author: MANSFIELD, Circuit Judge:

license: Public Domain

text:
    In re ESTATE of Lorraine A. McGAULEY, Deceased. Frederick F. McGAULEY, Temporary Executor, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee

    No. 204, Docket 74-1810.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 18, 1974.
    Decided Dec. 13, 1974.
    Mark L. Heller, Albany, N. Y. (Nolan & Heller, P. C., Albany, N. Y., of counsel), for appellant.
    Robert G. Burt, Atty., Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Loring W. Post, Attys., Tax Div., Dept. of Justice, Washington, D. C., of counsel), for appellee.
    Before SMITH, HAYS and MANSFIELD, Circuit Judges.

       Editor’s Note: The opinion of the Court of Appeals, Ninth Circuit, in Bark v. Immigration and Naturalization Service, published in the advance sheets at this citation (504 F.2d 1030), was withdrawn by the court and a new opinion filed.

   MANSFIELD, Circuit Judge:

. Under § 2013 of the Internal Revenue Code of 1954, 26 U.S.C. § 2013, a decedent’s estate is entitled to a tax credit for the amount of federal estate tax paid with respect to property transferred to the decedent from a person who died within a specified number of years before or after the death of the decedent. The purpose of the law is to alleviate the oppressiveness of successive taxation of a family’s property within a relatively short period of time. H.R.Rep. No.1337, 83d Cong., 2d Sess. 90 (1954); S.Rep.No.1622, 83d Cong., 2d Sess. 463 (1954), U.S.Code Cong. & Admin.News, p. 4025. Upon this appeal the issue is whether the Tax Court correctly held that amounts paid by a husband’s estate to children in settlement of a will contest were never transferred to his wife, the sole beneficiary under his will, who later died, and that his wife’s estate was therefore not entitled to a credit under § 2013 for taxes paid by the husband’s estate on the property transferred to the children. We agree with the Tax Court’s analysis and accordingly affirm its decision.

The facts are simple and undisputed. In 1965 Frederick F. McGauley died, leaving his entire estate to his wife, Lorraine A. McGauley, who also qualified as Executrix of his estate. His four daughters by a prior marriage objected to the admission of his will to probate, which was sought in the County of Schenectady, New York. The will contest was settled by an agreement between Frederick’s estate, signed by Lorraine as preliminary Executrix and by the four daughters. Pursuant to its terms his estate paid $27,500 to each of the four daughters, plus their attorney’s legal fee of $5,000, or a total of $115,000. Lorraine, as Executrix, eventually paid the entire estate tax due on her husband’s estate.

In 1967, approximately 29 months after her husband Frederick’s death, Lorraine A. McGauley died. Her estate claimed a credit under § 2013 for 80% of the federal tax paid on Frederick’s estate. The Commissioner disallowed any credit based upon the portion of Frederick’s estate used to make the $115,000 payment to the four daughters and to their attorney on the ground that this property had never been “transferred” to the decedent, Lorraine. Upon a petition by Lorraine’s estate for a redetermi-nation of the deficiency the Tax Court, in an opinion filed December 12, 1973, upheld the Commissioner’s determination and the resulting assessment of a deficiency of $18,393.04 against her estate. From this decision Lorraine’s estate appeals.

In order to qualify-for a § 2013 tax credit with respect to the payments made by Frederick’s estate to the four daughters and to their attorney, Lorraine’s estate was required to show that this property had been “transferred” to her. This her estate failed to do. The agreement in settlement of the will contest, to which Lorraine was a party in her capacity as preliminary Executrix of her husband’s estate, expressly provided that the payments were to be made out of the assets of Frederick’s estate, not by Lorraine individually or from some other source, and the payments were accordingly made from his estate. Furthermore, decisions adjudicating the issue under analogous circumstances have made it clear as a matter of substantive federal law that payments in settlement of a bona fide will contest represent transfers from the estate to the recipient rather than from the devisees or legatees. Lyeth v. Hoey, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed. 119 (1938) (property received by heir in settlement of will contest is taken by inheritance from decedent and not as taxable income); United States Trust Co. of New York v. Commissioner, 321 F.2d 908 (2d Cir. 1963), aff’g 38 T.C. 670 (1962), cert. denied sub nom. Estate of Davenport v. Commissioner, 376 U.S. 937, 84 S.Ct. 792, 11 L.Ed.2d 658 (1964) (property left by decedent’s will to his widow and relinquished by her to settle dispute with daughters over probate of another will does not qualify for marital deduction for federal estate tax purposes).

Only the net amount of the husband’s estate after payment of all claims against his estate (including the settlement paid to the children) was property “transferred” to Lorraine McGauley. See Central Hanover Bank & Trust Co. v. Commissioner, 159 F.2d 167 (2d Cir. 1947); Bahr v. Commissioner, 119 F.2d 371 (5th Cir.), cert. denied, 314 U.S. 650, 62 S.Ct. 95, 86 L.Ed. 521 (1941). Our holding with respect to this issue is consistent with the purpose of § 2013, which is to avoid oppressive successive taxation of the same property. The property transferred from Frederick’s estate to the children in settlement of the will contest has not been subjected to double taxation, since it never became part of Lorraine’s estate.

Appellant contends that the payments to the children should be deemed to have been made by Lorraine rather than out of her husband’s estate for the reason that under New York law her husband’s estate vested in her immediately upon his death. See Matter of Cook, 187 N.Y. 253, 79 N.E. 991 (1907); N.Y. Estates, Powers and Trusts Law, McKinney’s Consol.Laws, c. 17-b, § 1-2.-18. Matter of Cook is distinguishable from the present case for the reason that the settlement of the will contest in that case, which took the form of an assignment of a legatee’s interest to the contestant, did not change the will, whereas the contesting daughters here received payment directly from their father’s estate despite his bequest of his entire estate to his wife. In addition to this significant difference in form we are here guided by the principle that the construction of a federal statute such as § 2013 should be governed by federal law, which will apply uniformly throughout the land, rather than by local rules which may vary from state to state and present the risk of inequity and conflict having their roots solely in geographical vagaries. See Lyeth v. Hoey, supra, 305 U.S. at 193-194, 59 S.Ct. 155. This principle was recognized in United States Trust Company of New York v. Commissioner, supra, 321 F.2d at 910, where we stated:

“We find no merit to the appellant’s theory that, because under New York law Mrs. Davenport acquired vested rights in the trust property, this property passed to her from the decedent and her subsequent relinquishment of her power of appointment did not affect [the] marital deduction. For federal tax purposes, the federal regulations govern, Lyeth v. Hoey, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed.2d 119 (1938).”

Since the $115,000 paid by Frederick’s estate to the daughters and their attorney was not transferred to Lorraine, her estate is not entitled to a credit under § 2013 for the estate tax paid by his estate upon this amount.

The decision of the Tax Court is affirmed.

      . Section 2013 provides in pertinent part as follows:
      “§ 2013. Credit for tax on prior transfers “(a) General rule. — The tax imposed by section 2001 shall be credited with all or a part of the amount of the Federal estate tax paid with respect to the transfer of property (including property passing as a result of the exercise or non-exercise of .a power of appointment) to the decedent by or from a person (herein designated as a ‘transferor’) who died within 10 years before, or within 2 years after, the decedent’s death.”

      . The Commissioner had also assessed a deficiency in the sum of $8,275.00 based upon transfers by Lorraine out of property received from her husband’s estate to her son Frederick F. McGauley, Jr., who did not contest his father’s will. The Tax Court, however, found that this property had been transferred from the husband’s estate to his wife and then transferred by her as a gift to her son. Accordingly, it held that this property was properly included by her estate in the property which was entitled to inclusion for purposes of a credit under § 2013.


author: HUFSTEDLER, Circuit Judge:

text:
    Franklin J. AUSTIN et al., Plaintiffs-Appellees, v. SEARS, ROEBUCK AND CO., a corporation, Defendant-Appellant.
    No. 73-2704.
    United States Court of Appeals, Ninth Circuit.
    Oct. 21, 1974.

      H. Warren Siegel (argued), Alhambra, Cal., for defendant-appellant.
    Philip S. Malinsky, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiffs-appellees.
   OPINION

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and KING, District Judge.

HUFSTEDLER, Circuit Judge:

The issue on appeal is whether the appellees, who are veterans reinstated by their employer, Sears, Roebuck and Company (“Sears”), are entitled to vacation benefits in the year of their return from the service, under the provisions of the Selective Service Act of 1967 and the terms of Sears’ collective bargaining agreement. Relying on our decision in Locaynia v. American Airlines, Inc. (9th Cir. 1972) 457 F.2d 1253, the district court granted summary judgment in the appellees’ favor, holding that their vacation benefits were perquisites of seniority rather than benefits earned by actual work. We reverse. The Sears collective bargaining agreement, unlike the contract considered in Locaynia, based eligibility for vacation benefits on actual work; seniority was a factor in determining the amount of vacation benefits, but not in fixing entitlement.

Appellees contend that under the Selective Service Act of 1967 time served in the military must be treated as time worked for the purpose of computing vacation earned. Each appellee had served in military service the entire twelve months preceding his reinstatement. Each claimed that he was entitled to all of the vacation benefits that would have accrued to him if he had spent that full year working at Sears. The difficulty with the appellees’ position is that, under the Sears vacation plan, time spent in the service is not a substitute for the actual work for Sears that is essential for eligibility; service time is credited only for the purpose of computing the maximum benefits that can be earned by an employee who has spent all or part of the prior year working at Sears.

The Sears plan, adopted pursuant to its collective bargaining agreement, clearly and specifically separates the seniority and actual work components of its vacation policy. Seniority is based on the length of employment by Sears; employment longevity includes actual work and leaves of absence, military and nonmilitary. Eligibility is keyed to actual work on the job. Vacation benefits increase incrementally “with each month of service,” which we interpret to mean approximately a month of working days, including excused absences, sickness and the like. (See Foster v. Dravo Corp. (3d Cir. 1973) 490 F.2d 55, 62, cert. granted, (1974) - U.S. -, 95 S.Ct. 38, 42 L.Ed.2d 46.)

The overriding purpose of the provisions of the Selective Service Act in issue was to preserve to the returning veteran those employment benefits that he was more likely than not to have obtained if his employment had not been interrupted by his service in the armed forces (Accardi v. Pennsylvania R.R. (1966) 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717; Tilton v. Missouri P.R.R. (1964) 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590).

Benefits that derive from longevity of employment are protected rights. But the Act does not prevent other benefits from being tied to work actually performed as well as to seniority or solely to work actually performed, if the scheme is not a device to avoid the intended impact of the Act. Any effort to convert benefits that are traditionally a function of length of association into benefits that are pinned to actual time on the job will be subjected to close judicial scrutiny, and any indication that the linkage is a product of bad faith, subterfuge, or attempted evasion of the Act will signal its defeat. (Cf. Palmarozzo v. Coca-Cola Bottling Co. of New York, Inc. (2d Cir. 1973) 490 F.2d 586.)

e. 1. Regular Employe, Returning From, Military Leave
(a) Vacation Due on First Anniversary Date Following Return From Military Service
A regular employe returning from a military leave of absence is not entitled to any vacation until he reaches his anniversary date. At that time he is entitled to vacation as follows:
. If he had one or more years of service at the time he was placed on leave, lie is entitled to:
Ye of a week’s vacation witli pay for each month he has worked since he returned from his leave of absence (Yi of a week for employes with between 10-20 years of service, % of a week for employes with 20 or more years of service). This vacation can be anticipated by as much as G months.
. If he had less than one year of service at the time he was placed on leave but passed his first anniversary while on leave, he is entitled to:
Yi2th of a week’s vacation with pay for each month of service prior to going on leave (provided he had not already anticipated his first year’s vacation prior to going on leave), plus Yoth of a week’s vacation with pay for each month he has worked since he returned from leave.
2. Employe Not on Military Leave (a) Regular Employe
The employe’s vacation will be determined in the same manner as for employes on military leave.”

Nothing in the record before us suggests that the agreement conditioning eligibility for vacation benefits upon actual time on the job is in the suspect category. A paid vacation is fairly understood as part of a worker’s short-term return, for labor; hence, treating vacation time earned as a function of actual labor performed is not unreasonable. (See Foster v. Dravo Corp., supra, 490 F.2d at 63.)

When a benefit is justifiably attached to actual time on the job as an earned benefit, that benefit need be offered to the returning veteran only on the same basis as it is offered to other employees returning from nonmilitary leaves. (See Palmarozzo v. Coca-Cola Bottling Co., supra at 593 (Friendly, J., dissenting).) Sears’ 'employees who were on nonmilitary leave for the entire year preceding their return would receive no vacation benefits the year of their return. Accordingly, the returning veterans can receive none.

A contrary conclusion would place these appellees in a better position than those who remained in Sears’ employment on nonmilitary leave during the same period. Moreover, these veterans would be receiving a double vacation check, one from Sears and one from the Government. Each was entitled to paid vacation at the rate of two and one-half cálendar days for each month of active service, i. e., thirty days paid vacation per year (10 U.S.C. § 701). A collective bargaining agreement that avoids double vacation pay is not within the ambit of evil that the court in Palmarozzo feared.

This is not a case in which a returning veteran received no vacation credit for work he performed in the year of his entry because he was not present on a specific date (see Eagar v. Magma Copper Co. (1967) 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed.2d 557; Hollman v. Pratt & Whitney Aircraft (5th Cir. 1970) 435 F.2d 983), or because he had almost, but not quite, enough time at work before he responded to the call of service (cf. Foster v. Dravo Corp., supra, 490 F.2d at 63). Under the Sears plan, these veterans received vacation credits for work actually performed in the respective years in which they entered the armed service. Sears accordingly paid each appellee a pro-rated, paid-vacation sum computed to the date that each one left Sears. (Cf. Kasmeier v. Chicago, Rock Island & P. R.R. (10th Cir. 1971) 437 F.2d 151, 155.)

Reversed.

       The Honorable Samuel King, District of Hawaii, sitting by assignment.

      . 50 U.S.C. App. § 459 provides, inter alia, that a veteran returning from the armed forces to his previous place of employment:
      “(b) (B) if such position was in the employ of a private employer, such person shall—
      “(i) if still qualified to perform the duties of such position, be restored by such employer or his successor in interest to such postion or to a position of like seniority, status, and pay; (Í

      “(c) (1) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) [of this section] shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.
      “(2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) [of this section] should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.”

      . The agreement is substantially reproduced in Sears’ Personnel Manual, which provides in pertinent part as follows:

        “GENERAL POLICY REGARDING VACATIONS

      It is the policy of the Company to grant paid vacations to qualified employes as follows:
      a. Regular Employe

      The Company grants a paid vacation each year to every regular employe with one or more years of service. The amount of vacation is determined by the employe’s length of service.
      After the first year of service, a regular employe earns vacation on a month-to-month basis. With each month of service, he earns %2th of the full year’s vacation allowance for which he is eligible in accordance with Company policy- If he resigns or is released, any earned vacation is paid to him when his services are terminated.

        “ELIGIBILITY FOR AND AMOUNT OF VACATION

      a. General Requirements

      1. Regular Employes

      Regular employes are entitled to vacation as follows:
      One week after completing one year of continous service;
      Two weeks each year after completing two but less than 10 years of continuous service;
      Three weeks each year after completing 10 but less than 20 years of continuous service;
      Pour weeks each year after completing 20 years of continuous service. The ‘anniversary year,’ not calendar year, is used in administering the vacation policy for regular employes.
      The ‘anniversary year’ is the year between one anniversary of a regular employe’s service date and the next anniversary.

        “SCHEDULING VACATIONS

      a. Vacation Plans

      All employes are expected to take their vacation during the anniversary year in which they are due.

        “VACATION FOR EMPLOYE ON LEAVE OF ABSENCE Vacation does not accrue during any type of leave of absence regardless of whether the employe later receives service credit for all or a portion of the time absent on leave. Vacations in leave of absence cases are handled as follows :
      a. Employe Going on Leave of Absence

      4. Military Ijeave of Absence

      In addition to vacation due to his last anniversary date but not taken, the employe should be paid vacation earned to date of leaving, computed as follows:
      Continuous Service at Time Leave Began
      1 to 10 years
      10 to 20 years
      20 years and over
      Vacation Pay for Each Completed Anniversary Month Worked Since Last Anniversary Date
      % of a week
      % of a week

        Vs of a week
      c. \_Employe Returning From Leave of Absence]
      * # * * * * *
      Continuous Service at Time Leave Began
      1 to 10 years
      10 to 20 years
      20 years and over
      Vacation Pay for Each Completed Anniversary Month Worked Since Return Prom Leave
      % of a week
      % of a week

        Vs °f a week

      . We do not read Accardi’s reference to “automatically” (383 U.S. at 229, 86 S.Ct. 768) accruing rights and benefits as limiting the benefits only to those which are inevitable. Rather, we read Accardi with Tilton in which the Court emphasized that “absolute for-seeability” (376 U.S. at 179, 84 S.Ct. 595) of a benefit’s accruing was not a prerequisite to enjoyment of the Act’s protections (376 U.S. at 181, 84 S.Ct. 595).
      The Act itself provides some exceptions for particular benefits that would otherwise fall in the protected class. (50 U.S.C. App. § 459(c)(1).)

      . We are fully mindful of the Second Circuit’s warning against attaching any legal significance to work- requirements as conditions of employee benefits, lest, we invite subterfuge and evasion of the Act. Palmarozzo v. Coca-Cola Bottling Co. of New York, Inc., supra, 490 F.2d 586, 592.


author: CUMMINGS, Circuit Judge. SWYGERT, Chief Judge,

text:
    Frederika BLANKNER, Plaintiff-Appellant, v. The CITY OF CHICAGO et al., Defendants-Appellees.
    No. 73-1568-9.
    United States Court of Appeals, Seventh Circuit.
    Argued April 17, 1974.
    Decided Oct. 24, 1974.
    Rehearing and Rehearing En Banc Denied Nov. 21, 1974.

      Swygert, Chief Judge, concurred in part and dissented in part and filed an opinion.

      David S. Kreisman, Thomas J. Grip-pando, Thomas J. Boodell, Jr., Lawrence M. Gavin, Chicago, 111., for plaintiff-appellant.
    James R. Thompson, U. S. Atty., and Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., Robert E. Kopp, Anthony J. Steinmeyer, Dept, of Justice, Washington, D. C., Jerrald B. Abrams, Asst. Atty. Gen., William J. Scott, Atty. Gen., Richard F. Babcock and Frederic O. Floberg, Richard L. Curry, Corp. Counsel and Daniel Pascale, Asst. Corp. Counsel, William R. Dillon, Herbert Morton, John O. Snook, Chicago, 111., for defendants-appellees.
    Before SWYGERT, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.
   CUMMINGS, Circuit Judge.

In her complaint, plaintiff alleged that defendants conspired fraudulently to deprive her of her property without due process of law, thus contravening the Civil Rights Act. As a class representative, she also challenged the constitutionality of the Illinois Urban Renewal Consolidation Act of 1961 (Ill.Rev.Stats. 1973, ch. 67y2, § 91.101 et seq.) and requested the convening of a three-judge court to decide that question. The district judge refused to convene a three-judge court, and the defendants’ motions to dismiss the complaint were subsequently granted pursuant to an extensive, unreported memorandum opinion. Thereafter, a motion for leave to file an amended complaint and for reconsideration was denied. We affirm.

The verified complaint was in four counts. The first count showed that plaintiff was the owner of an apartment house at 6043 South Woodlawn Avenue in Chicago. The building is presently occupied by plaintiff and her tenants It is located in the 66-acre South Campus portion of a 105.6-aere Urban Renewal Area and is immediately adjacent to the south end of the University of Chicago. Count I alleged a conspiracy between the University of Chicago and the Department of Urban Renewal of the City of Chicago. The University allegedly desired to acquire property south of its campus, while the City wished to receive credits under Section of 112 of the 1949 National Housing Act (42 U.S. C. § 1463). Both goals could be accomplished if the University purchased urban renewal land from the municipality. The City’s credits could then be used to finance unrelated renewal projects in other areas of the City.

Plaintiff charged that pursuant to this conspiracy, defendants falsely caused the Urban Renewal Area to be declared a slum and blighted area and acquired it by purchase and condemnation. The condemnation was allegedly effected by unfair procedures. The University purchased the South Campus at a below market price while the City acquired $14,000,000 of urban renewal credits.

The City applied for $12,000,000 in funds from the federal government in 1965 to defray the cost of acquiring this Urban Renewal Area property. It is accused of making false and inaccurate claims in this application that buildings, including plaintiff’s, were slum and blighted. In 1967, the City began to purchase parcels within this Urban Renewal Area and later brought condemnation proceedings in the Circuit Court of Cook County to acquire additional parcels there. Plaintiff was named a defendant in a condemnation suit after refusing to sell her property to the City. In that litigation, she denied that the area was slum and blighted, that the City had a right to take it, and that the taking was for a public purpose. Judgment was entered for the City after a jury trial, resulting in a $40,750 award for Miss Blankner. She lost her appeal in the Supreme Court of Illinois (50 Ill. 2d 69, 277 N.E.2d 129 (1971)), and her petition for certiorari was subsequently denied. 408 U.S. 931, 92 S.Ct. 2498, 33 L.Ed.2d 343. The condemnation of plaintiff’s apartment house was allegedly obtained through false and fraudulent information supplied by the City, thus causing plaintiff’s property to be appropriated for a private purpose.

In Count I, plaintiff requested declaratory and injunctive relief, including the invalidation of the condemnation judgment of the Circuit Court of Cook County. She also requested $250,000 in compensatory damages and $250,000 in punitive damages, plus attorney’s fees.

Count II was brought as a class action. The members of the class were described as “all property owners of the State of Illinois who are subject to having their property condemned for the purposes of urban renewal, without being afforded a fair hearing.” The gravamen of Count II was that the Illinois Urban Renewal Consolidation Act, as interpreted by the Illinois courts, violated the equal protection and due process clauses of the Fourteenth Amendment. In Count II, plaintiff alleged that neither she nor any other property owner in this Urban Renewal Area (except the University of Chicago) was given notice or an opportunity for a hearing until after an October 8, 1964, Resolution of the Chicago Department of Urban Renewal concerning this area and the City Council’s November 16, 1964, ordinance adopting that resolution and approving the acquisition of this Urban Renewal Area pursuant to the Illinois Act. Plaintiff claimed that the Act unconstitutionally allowed the City of Chicago to establish the fact of slum and blight by the introduction of the resolution and ordinance. This count also alleges that the definition of “slum and blighted area” (§ 91.103(i)) is imper-missibly vague, and that the Department of Urban Renewal is permitted to determine whether an area is slum and blighted despite its own pecuniary interest in the outcome.

Count III was also brought as a class action and noted that unlike “conservation area” property owners, property owners living in a purported slum and ■blighted área are not afforded notice and a public hearing before their area can be designated for a renewal project. This was alleged to violate the equal protection clause.

Count IV, also a class action count, asserted that the condemnation procedure adopted under the Act constituted a bill of attainder.

Under the last three counts, the plaintiff and the class requested the convening of a three-judge district court, a judicial determination permitting the action to proceed as a class action, a declaration that the Illinois Urban Renewal Consolidation Act violates the federal Constitution, and an injunction against the taking of property under the slum and blighted area provisions of the statute.

Conspiracy Count

The district court held that the questions of law presented by the conspiracy count’s allegation of unfair condemnation procedures were resolved against plaintiff in the state court proceedings. As more fully explained in the discussion of Count II, we agree.

Count I also alleged that defendants falsely and fraudulently caused the area in question to be designated a slum and blighted area. The fraud allegations are not merely conclusory; plaintiff alleges facts which suggest she would have had a strong case had she attempted to prove it in the state condemnation proceeding. Inexplicably, she declined to present any evidence there, so that this claim is also barred.

An essential element of plaintiff’s fraud claim is that this Urban Renewal Area was not slum and blighted. If it were in fact slum and blighted, the defendants’ motives in designating it for renewal would be irrelevant. Green Street Assn. v. Daley, 873 F.2d 1, 6 (7th Cir. 1967), certiorari denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995. Similarly, the conclusions of the report relied on by the condemnation court would be true, and the renewal project could proceed despite any fraudulent supporting statements. Plaintiff had an opportunity to litigate the slum and blight issue in the condemnation proceeding, but she deliberately bypassed it. See City of Chicago v. Walker, 50 Ill.2d 69, 70-71, 277 N.E.2d 129 (1971) ; City of Chicago v. Barnes, 30 Ill.2d 255, 257-258, 195 N.E.2d 629 (1964); City of Chicago v. Zwick, 27 Ill.2d 128, 188 N.E.2d 489 (1963); Ross v. Chicago Land Clearance Comm’n, 413 Ill. 377, 380-381, 108 N.E.2d 776 (1952) ; Zurn v. City of Chicago, 389 Ill. 114, 129-133, 59 N.E.2d 18 (1945); cf. Deerfield Park Dist. v. Progress Development Corp., 22 Ill.2d 132, 138-141, 174 N.E.2d 850 (1961).

If that proceeding were infected by fraud, plaintiff may or may not have a remedy. It is clear, however that any remedy lies not in federal court, but in a state court petition for relief from judgment under Ill.Rev.Stats.1973, ch. 110, § 72.

Plaintiff also argues that the fraud was only revealed by newly discovered evidence. That claim is also properly raised, if at all, in a state court petition under § 72. We note, however, that the fraud charges were based in part upon separate studies of the South Campus area, published in 1962 and 1964. Parts of each study are attached to the complaint as Exhibits B and C respectively. The complaint also relies on an article by Julian Levi which appears to have been published in 1962, although that is not clear from the record, and on a map attached to the City’s federal grant application in 1965. These items were complaint Exhibits A and D. At the very least, Exhibits B and C were public and could have been presented at the 1968 condemnation trial.

Also, in the condemnation proceeding, plaintiff had the opportunity to prove that her property was being taken for a private purpose but did not attempt to do so. This issue was raised by amici curiae, and the Illinois Supreme Court reiterated that the taking of land for the redevelopment of slum and blighted areas was for a public purpose. 50 Ill.2d at 71, 277 N.E.2d 129. Thus relitigation of this ground is barred too.

In this Count, plaintiff additionally asserts that the two federal defendant officials had an obligation to inspect the Urban Renewal Area before making federal funds available to Chicago and its Department of Urban Renewal. However, 42 U.S.C. §§ 1451(c) and (e) and 1460(c), the provisions relied upon, placed no such duty upon the federal defendants. In any event, since the condemnation proceedings finally determined whether this Urban Renewal Area was a slum and blighted area, the doctrine of collateral estoppel bars plaintiff’s claim against the federal defendants.

Plaintiff relies on Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970), for the proposition that collateral estoppel does not bar a civil rights suit alleging that false evidence was introduced in a state trial. Kauffman alleged that his criminal conviction had been procured by the perjury of policemen who testified against him. The case would not be directly in point, for it is much easier to attack collaterally a criminal conviction than a civil judgment, as the law of habeas corpus makes clear. But see Goss v. Illinois, 312 F.2d 257 (7th Cir. 1963); Thistlethwaite v. City of New York, 497 F.2d 339 (2d Cir. 1974). Equally important, the court in Kauffman stated that the complaint would be barred by collateral estoppel if the veracity of the witnesses named as defendants had been clearly put in issue and decided at the criminal trial; it held only that it was impossible to determine this issue on motion to dismiss. 420 F.2d at 1274-1275. Accord, Mastracchio v. Ricci, 498 F.2d 1257 (1st Cir. 1974); cf. Travelers Indemnity Co. v. Walburn, 378 F.Supp. 860, (D.D.C.1874); Lovely v. Laliberte, 498 F.2d 1261, (1st Cir. 1974).

Arguable Exceptions to Collateral Estop-pel

Plaintiff argues that even if she is technically barred by prior litigation, the public interest requires that her case be decided on the merits. See Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 669-672, 64 S.Ct. 268, 88 L.Ed. 376; Gold v. DiCarlo, 235 F.Supp. 817, 820 (S.D.N.Y.1964), affirmed, 380 U.S. 520, 85 S.Ct. 1332, 14 L.Ed.2d 266; Spilker v. Hankin, 88 U.S.App.D.C. 206, 188 F.2d 35 (1951). Each of these cases involved unusual facts not present here; together, they indicate a narrow exception to a generally applicable doctrine. In this case, the public interest requires that collateral estoppel be given its full scope.

As Judge Swygert observed in Green Street Assn. v. Daley, 373 F.2d 1, 6-7 (7th Cir. 1967), certiorari denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995, “the subjective reasons of the legislative authority seeking the acquisition is an ‘inappropriate area for judicial inquiry.’ ” He added, quoting Baber v. Texas Utilities Co., 228 F.2d 665, 666 (5th Cir. 1956), “the state courts are as firmly bound by the Constitution of the United States as is this [federal] Court and [the proper] forum for the enforcement of any constitutional rights that may have been violated is in the * * * state courts with the right of ultimate determination by the Supreme Court of the United States.” (Modifications in Green Street.) We adhere to the rule in Green Street that cases like this presenting challenges to urban renewal programs are to be decided in the state court condemnation proceedings “if the taking is ostensibly for a public purpose, even though violations of federally guaranteed rights are claimed.” See also Harrison-Halsted Community Group, Inc. v. Housing & Home Finance Agency, 310 F.2d 99, 103, 106 (7th Cir. 1962), certiorari denied 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 414.

Counts Attacking Constitutionality of Illinois Urban Renewal Act

As already noted, Counts II-IV attack the constitutionality of the Illinois Urban Renewal Consolidation Act of 1961. These issues were litigated or could have been litigated in the state court, the proper forum. See City of Chicago v. Walker, 50 Ill.2d 69, 71, 277 N.E.2d 129 (1971) ; City of Chicago v. Barnes, 30 Ill.2d 255, 257, 195 N.E.2d 629 (1964); City of Chicago v. Zwick, 27 Ill.2d 128, 130-131, 188 N.E.2d 489 (1963); Chicago Land Clearance Comm’n v. Quinn, 11 Ill.2d 111, 113, 142 N.E.2d 60 (1957); Ross v. Chicago Land Clearance Comm’n, 413 Ill. 377, 380, 108 N.E.2d 776 (1952); Zurn v. City of Chicago, 389 Ill. 114, 129-133, 59 N.E.2d 18 (1945). Therefore, the doctrine of res judicata bars plaintiff from raising the unconstitutionality of the Act against the same defendants or those in privity with them. Grubb v. Public Utilities Commission, 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972. As to the other defendants, plaintiff is barred by the related doctrine of collateral estoppel.

Foster v. City of Detroit, Michigan, 405 F.2d 138 (6th Cir. 1968), does not help plaintiff. There the Fosters were awarded $5,200 for their land in a condemnation suit begun after the federal suit was pending. The $5,200 did not purport to compensate for the deterioration in value caused by the ten-year pen-dency of an ultimately discontinued previous condemnation suit. No comparable separable issue has been raised in this case.

One other case relied on by plaintiff and deserving mention is Starks v. Klopfer, 468 F.2d 796 (7th Cir. 1972). There the Court ordered that plaintiffs’ challenge to an Illinois statute be heard by a three-judge district court. The parties had previously litigated the constitutionality of the same statute in the state court, but while the federal appeal was pending, the state Supreme Court withdrew its opinion and again took the case under advisement. The cases are divided as to whether a judgment has res judicata effect despite the pendency of a direct appeal, but we need not decide that question to distinguish Starks. Res judicata and estoppel are affirmative defenses which must be specifically raised. The defendant in Starks filed no brief in this Court, and the opinion did not refer to res judicata or collateral estoppel. We think it clear that the question was not presented to the Court and that it was not decided. Cf. Edelman v. Jordan, 415 U.S. 651, 670-671, 94 S.Ct. 1347, 39 L.Ed.2d 662.

As noted, Counts II-IV were brought as a class action on behalf of “all property owners” subject to having their property condemned under the Illinois Urban Renewal Consolidation Act. We may assume arguendo that plaintiff’s membership in the class she purports to represent has not been terminated by the condemnation judgment. Even so, it is clear that most members of the class of property owners described have not already fully litigated a condemnation proceeding in the state courts. Since the res judicata and collateral estoppel issues which have dominated this litigation are unique to Miss Blankner, she is not a proper class representative. See Koos v. First Nat’l Bank of Peoria, 496 F.2d 1162, 1164-1165 (7th Cir. 1974).

Failure to Convene Three-Judge Court

The district judge refused to request the convening of a three-judge court to consider the merits of Counts II-IV. Noting that the Urban Renewal Consolidation Act applies only to Illinois, “urban communities * * * with more than 500,000 inhabitants * * and thus only to the City of Chicago, he held a three-judge court to be improper under Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697, and Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed. 2d 643. This disposition was correct, and we disagree with the contrary language in Williams v. Osser, 326 F.Supp. 1139, 1140-1141 (E.D.Pa.1971). We of course have no occasion to pass on the alternative rationale in that case that the statute affected statewide elections.

We have considered the other points raised by plaintiff and the amici curiae and deem them without merit.

Judgment affirmed.

SWYGERT, Chief Judge,

concurring in part and dissenting in part.

The key point in the majority opinion is that there was a determination by the state court that the urban renewal area was slum and blighted; that the plaintiff had an opportunity to litigate this issue but deliberately bypassed it. It cannot be denied that if the area was not slum and blighted, the taking of plaintiff’s property was for a private and not a public use. “The taking by a state of the private property of one person or corporation, without the owner’s consent, for the private use of another, is not due process of law, and is a violation of the fourteenth article of amendment of the constitution of the United States.” Missouri Pacific Railway v. Nebraska, 164 U.S. 403, 417, 17 S.Ct. 130, 135, 41 L.Ed. 489 (1896).

At the condemnation trial, the only evidence offered to show that the land was slum and blighted were the resolution of the Department of Urban Renewal and the ordinance of the City Council. Both referred to the condition of the land and buildings in late 1964.

Miss Blankner never received notice that her property was being taken for urban renewal until she received a letter in October 1967 from the city offering to purchase her property. It was another year before she had an opportunity to challenge the taking. By that time over four years had elapsed. She contends that the Department of Urban Renewal’s designation of the land and buildings in the area as slum and blighted was a self-fulfilling prophecy. She makes the argument that as the city purchases property pursuant to the urban renewal plan, buildings become vacant and fall into a state of disrepair. The owners do not improve or even maintain their property in the face of imminent condemnation. No new construction is begun. Although an area may not have been slum and blighted at the time of the original designation, it becomes slum and blighted by the time of the condemnation proceedings. The federal defendants concede this point in their brief when they state that “once a renewal plan is announced for an area, improvement and maintenance of property within the area usually cease almost completely and the area deteriorates.”

“The usual rule has been ‘[w]here only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.’ Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596-597, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931).” Mitchell v. Grant, 416 U.S. 600, 94 S.Ct. 1895, 1902, 40 L.Ed.2d 406 (1974). But here the postponement of that opportunity made the determination of liability inadequate. This was not the usual condemnation case where it can be determined after a public project is formulated whether the taking was proper. In the instant case the public purpose for which the land was taken — the elimination of a slum and blighted area — could never be tested in the condemnation action as the Due Process Clause requires since the adoption of the resolution and the ordinance foreclosed any later meaningful challenge.

Even if a challenge to the taking were permissible in the state condemnation proceeding, Miss Blankner could not have presented evidence of the condition of the area at the time it was determined to be slum and blighted since she alleges that the area had deteriorated by the time of the trial. Moreover, it would be unfair to place the burden on her to show the condition of two hundred sixty-six buildings over four years prior to the trial and three years prior to notice from the city that the area had been designated as slum and blighted and was to be condemned under urban renewal. The Fourteenth Amendment guarantees that a person shall not be deprived of property without due process of law.

“[T]he Constitution does require ‘an opportunity granted at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965) (emphasis added), ‘for [a] hearing appropriate to the nature of the case,’ Mullane v. Central Hanover Tr. Co., supra, 339 U.S. 306, at 313, 70 S.Ct. 652 at 657, 94 L.Ed. 865. The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event. In short, ‘within the limits of practicability,’ Id,., 339 U.S. at 318, 70 S.Ct. 652, at 659, a State must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause.” Boddie v. Connecticut, 401 U.S. 371, 378-379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1970).

The purported opportunity afforded Miss Blankner to litigate the propriety of the taking of her land in the state court was merely a mirage; the opportunity disappeared before she was ever required to respond in the condemnation proceeding. Since she was not afforded a meaningful opportunity to contest the designation and taking, she has a right of action under 42 U.S.C. § 1983 for deprivation of her property without due process of law.

The plaintiff alleges that beginning in 1959 and continuing to the present the defendants conspired under color of law to deprive her and others of their property without due process. She asserts that the area in question was characterized by the defendants fraudulently and falsely as slum and blighted and that their concerted conspiratorial action denied her and the other owners of their constitutional right to due process. These allegations constitute a classic section 1983 cause of action. In my judgment there was no way that her asserted claim could have been incorporated in the condemnation proceeding. I would reverse the dismissal of Count I except as to the federal defendants.

For the reasons stated, I would also reverse Count II and remand with directions that a three-judge court be convened to decide whether the judicial review provided by the Illinois Consolidated Urban Renewal Act violates the Due Process Clause in that it fails to provide notice and a meaningful hearing in which to challenge the determination that the land is slum and blighted. Since I would reverse the dismissal of Count II as not being barred by res ju-dicata, I would allow that part of the case to proceed as a class action except as to the federal defendants who I agree should be dismissed.

I concur in the affirmance of the dismissal of Count III since there was no suspect class alleged (see Goldstein v. City of Chicago, 504 F.2d 989 (7th Cir. 1974)).

I also concur in the affirmance of Count IV.