author: ANN ALDRICH, District Judge.

text:
    Robert D. GARRY, Plaintiff, v. TRW, INC., et al., Defendants.
    Civ. A. No. C83-2663.
    United States District Court, N.D. Ohio, E.D.
    Jan. 28, 1985.

      Margaret Kazdin, Cleveland, Ohio, James M. Lyons, Gurley, Hanahan, Lyons & Manning, Painesville, Ohio, Brian E. Hurley, Cincinnati, Ohio, for plaintiff.
    William H. Wallace, Thompson, Hiñe & Flory, Cleveland, Ohio, for defendants.
   MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Plaintiff Robert D. Garry brings this action against defendants TRW, Inc., and two of its employees, Crawford T. Harvie and Martin Coyle, alleging that they discriminated against him on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”) and Ohio Rev.Code § 4101.17, and further alleging that they interfered with his retirement and profit-sharing benefits in violation of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”). Jurisdiction is proper pursuant to 28 U.S.C. § 1331, and 29 U.S.C. § 1132(f).

Pending before the Court are TRW’s motion for summary judgment on Garry’s claims for compensatory and punitive damages under Ohio law and its motion to strike portions of the amended complaint which allege that TRW’s actions were wanton and malicious. Also pending is TRW’s motion to dismiss and for summary judgment on the ERISA claims set forth in Count III.

Upon consideration, the motions are denied.

I.

On June 2, 1983, Garry commenced this action by filing a complaint in the Cuyahoga County Court of Common Pleas. On June 27, 1983, TRW removed the action to this Court pursuant to 28 U.S.C. § 1441(b). Because Garry did not file a charge with the Equal Employment Opportunity Commission (“EEOC”) before bringing this suit, he voluntarily dismissed his ADEA claim and subsequently refiled it by amended complaint after he filed a charge with the EEOC and complied with the 60 day waiting period requirement.

The parties do not dispute that Garry worked for TRW from December 14, 1965 until his discharge on December 10, 1982. Garry spent his first six years employed as an accountant and the next eleven years as an attorney. He was fifty-seven years old at the time of his discharge.

Garry alleges that he was discharged without just cause, and because of his age, as part of a TRW pattern or practice of discharging employees between the ages of 40 and 70, and he alleges that he was replaced by a younger employee. He further alleges that TRW provided retirement benefits and/or profit-sharing benefits to which he was entitled, and that he was discharged in order to deprive him of those benefits. Garry seeks reinstatement, and back-pay, including the value of lost fringe benefits, Social Security benefits, retirement benefits and profit-sharing benefits. He further seeks liquidated damages under the ADEA, and punitive and compensatory damages under Ohio law for his pain and suffering, humiliation, loss of reputation and embarrassment, and mental and emotional distress, plus costs of the action and expenses incurred during litigation, including attorneys fees.

II.

TRW contends that compensatory and punitive damages are not awardable under Ohio’s age discrimination statute, Ohio Rev.Code § 4101.17, and asks that summary judgment be entered in its favor on these claims for relief. This Court concludes that compensatory and punitive damages may be an “appropriate remedy” under the statute and dismissal of Garry’s claims for such damages would therefore be premature.

Section 4101.17(A) provides:

No employer shall discriminate in any job opening against any applicant or discharge without just cause any employee between the ages of forty and seventy who is physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between the employer and employee.

Section 4101.17(B) provides the remedies for infractions of 4101.17(A). The remedial section provides in pertinent part:

... If the court finds that an employer has discriminated on the basis of age, the court shall order an appropriate remedy which shall include reimbursement to him for the costs, including reasonable attorney fees, of the action, or to reinstate the employee in his former position with compensation for lost wages and any lost fringe benefits from the date of the illegal discharge and to reimburse him for costs, including reasonable attorney fees, of the action.

In considering questions of state law, this Court is bound by decisions of the highest court of the state, in this case the Ohio Supreme Court. Ruth v. Bituminous Casualty Corp., 427 F.2d 290, 292 (6th Cir.1970). If the Ohio Supreme Court has not spoken, the Court is obligated to follow published intermediate Ohio appellate court decisions. Id. Absent any state cases, the Court must express its best judgment, based on available information, as to how the Ohio Supreme Court would rule if faced with the issue presented by this case. Tennessee River Pulp v. Eichleay Corp., 708 F.2d 1055, 1057 (6th Cir.1983). The federal courts in Ohio have disagreed on the question of punitive and compensatory damages under Ohio Rev.Code § 4101.17. Compare Bailey v. Container Corporation of America, 594 F.Supp. 629 (S.D.Ohio 1984) and Merkel v. Scovill, Inc., 573 F.Supp. 1055 (S.D.Ohio 1983), appeal docketed, No. 83-3893 (6th Cir. Dec. 13, 1983), (punitive and compensatory damages available under § 4101.17) with Citro v. TRW, Inc., No. C82-2911 (N.D.Ohio October 12, 1984) and Schlosser v. Firestone Tire & Rubber Co., 33 F.E.P. Cases 1401, 1405-1406 (N.D.Ohio 1983) (compensatory and punitive damages not available under Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144 (1976)). The Ohio Supreme Court has not interpreted Ohio’s age discrimination statute since it was amended to provide a civil cause of action and accompanying civil remedies. See Fawcett, 46 Ohio St.2d 245, 348 N.E.2d 144.

In Fawcett, the Ohio Supreme Court held that Ohio Rev.Code § 4101.17 as it appeared in 1976, did not give rise to a private civil action for damages. This ruling was overruled by legislative enactment in 1979, when the Ohio General Assembly amended § 4101.17 to include, inter alia, language specifically permitting a person to institute a civil action under the statute, and permitting the award of reinstatement and/or compensation.

No mention of this legislative amendment is made in either of the decisions which rely on Fawcett to disallow punitive and compensatory damages and which TRW urges this Court to follow. In Schlosser v. Firestone Tire & Rubber Co., the Court dismissed claims for compensatory and punitive damages stating:

In Fawcett the Ohio Supreme Court held that a violation of provision [sic] of § 4101.17 of the Ohio Revised Code by an employer does not give rise to a civil action for damages. The legislature has specifically set forth the damages to which the plaintiff is entitled.

Schlosser, 33 F.E.P. cases at 1405. In Citro v. TRW, the Court followed its previous holding:

As previously held by this Court in Schlosser, supra, the Ohio Supreme Court has held that a violation of a provision of § 4101.17 by an employer does not give rise to a civil action for damages, but only allows damages as specifically set forth by the legislature in the statute. Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245 (348 N.E.2d 144) (1976).

This Court is of the opinion that the holding in Fawcett no longer correctly interprets § 4101.17, having been disapproved and overruled by legislative enactment. The rulings issued in Merkel v. Scovill, Inc., 570 F.Supp. 141, 159-160 and 573 F.Supp. 1055, 1061 (S.D.Ohio 1983) are consistent with the view, this Court believes the Ohio Supreme Court would adopt if faced with this same question.

The language of § 4101.17 which specifically directs that “the court shall order an appropriate remedy ...” indicates that it would be improvident to dismiss a portion of a plaintiff’s claim for relief before hearing what his injuries are and what is necessary to make him whole. As contrasted with the language of the federal age discrimination statute which strictly enumerates what damages are awardable, the words “appropriate remedy” in the Ohio statute lead this court to conclude that a more expansive award of damages to victims of age discrimination was contemplated by Ohio lawmakers. Adopting TRW’s view would preclude even a compensatory damage award of reimbursement for moving expenses which might be associated with securing alternate employment in a new location. Disallowing any claim for punitive damages would be even more restrictive than the ADEA which awards liquidated damages to victims of “willful” discrimination.

Recognizing that awards of liquidated damages under the ADEA and compensatory and punitive damages under Ohio law present the possibility of overlapping and duplicative awards, this Court agrees with the Scovill decision that relief under the state and federal statutes must offset one another:

Compensatory damages under Ohio law include damages for pain and suffering, loss of reputation, humiliation and embarrassment. Liquidated damages under the ADEA are permitted to enable plaintiffs who have been victims of wilful discrimination to recover damages for non-pecuniary losses that are difficult to prove. At least seven courts of appeal, including our own, have held that ADEA liquidated damages are in lieu of damages for loss of reputation, humiliation, mental anguish and other such losses.
Accordingly we find that to prevent double recovery for such damages, the awards for compensatory damages on the state claims must be reduced by the amount of the liquidated damages awarded under the ADEA.

Merkel v. Scovill, 570 F.Supp. at 150 (citations omitted).

This. Court is not bound by unpublished decisions of an Ohio Court of Common Pleas. Consequently, the decision of the Lucas County Court of Common Pleas to which TRW cites is not dispositive of this question, nor is it persuasive, both because it carries no precedent for this Court and because it contains no discussion of relevant case law or citation to any authority. In the absence of any binding Ohio precedent to the contrary, this Court concludes that TRW’s motion to dismiss Garry’s claims for compensatory and punitive damages must be denied. The motion to strike portions of the complaint alleging that TRW’s actions were wanton and malicious is also denied.

III.

A.

TRW moves for summary judgment on Count III of Gary’s amended complaint which alleges a violation of § 510 of ERI-SA, 29 U.S.C. § 1140. Section 510 prohibits employers from discharging employees for the purpose of interfering with their retirement or pension benefits. TRW. contends that § 510 protects only employees whose benefits have not yet vested. Citing the facts that Garry’s benefits had vested prior to his discharge and that he received and continues to receive all benefits to which he was entitled, TRW argues that Garry cannot, as a matter of law, have a cause of action under § 510. Section 510 of ERISA provides:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act, or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act. It shall be unlawful for any person to discharge, fine, suspend, expel or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceedings relating to this Act or the Welfare and Pension Plans Disclosure Act. The provisions of section 1132 of this title shall be applicable in the enforcement of this section.

Garry argues that his benefits were interfered with because his discharge prevented him from accruing increased pension and stock savings benefits over a longer period of employment. There is no dispute that Garry’s benefits had vested prior to his discharge. However, there are genuine issues of material fact with respect to whether 1) TRW’s purpose in discharging Garry was to cause him to receive benefits under the TRW Salaried Pension Plan and the TRW Stock Savings Plan which were less than he would have received if he had not been discharged, and 2) whether this purpose was effected by his discharge. TRW’s own statement that “[a]mounts received under TRW’s Salaried Pension Plan are based on years of service and the salary level achieved by individual workers” suggests that if Garry had worked longer, his benefits would have been greater. Garry makes precisely this allegation under § 510, and this Court concludes that § 510 does not preclude an employee from pursuing such a claim simply because his benefits have vested.

This Court’s holding in Houck v. Lee Wilson Engineering Co., No. C82-351 (N.D.Ohio July 23, 1984) is not inconsistent with the decision in the instant case. In Houck, it was undisputed that the plaintiff had achieved the maximum level of benefits available to employees. Continued years of service would not have increased the benefits to which she would have been entitled. Such is not the case with Garry. . TRW presents a carefully worded affidavit which indicates “That Robert D. Garry was paid $117,308.59 which reflects all contributions made by him and by TRW, Inc. on behalf of Mr. Garry.” Affidavit of John E. Lanz, Jr., TRW Senior Counsel, Benefits. The fact that TRW paid Garry all that he was entitled to at the time of his discharge is not dispositive of the questions of whether Garry would have been entitled to more benefits if he had not been discharged, or whether a reduction in benefits was a reason for his discharge. Section 510 requires this Court to consider and resolve whether Garry was terminated for the purpose of interfering with his pension rights and preventing him from collecting increased benefits.

The Sixth Circuit’s comments in West v. Butler, 621 F.2d 240, 245 (6th Cir.1980) that. “[t]he legislative history [of § 510 of ERISA] reveals that the prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights,” do not provide exclusive support for TRW’s position. Even if the Sixth Circuit’s words can be interpreted to refer to employees whose benefits have not yet vested, the qualifying word “primarily” leaves room for a reading which extends § 510 protection to employees with vested benefits as well.

Moreover, the holding in West v. Butler, does not reach the issue presented here. In West, the plaintiffs were pension fund trustees who claimed that contributions to a pension fund were being interfered with because coal miners would not cross picket lines to earn wages upon which contributions to the pension fund were based. The Court of Appeals held that the pension fund trustees did not have a cause of action under § 510 to enjoin secondary picketing. West, 621 F.2d at 246. Section 510 was aimed solely at protecting individual rights with respect to working conditions and dismissals that affect an employee’s pension benefits. Id. The discussion of ERISA’s legislative history bolstered the court’s distinction between the non-employer activity at issue in West and the employer activity targeted by ERISA. The Sixth Circuit did not hold that § 510 protects only employees whose pension rights have not vested.

Other cases cited by TRW likewise fail to establish the holding the company urges this Court to issue. In Titsch v. Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982), the plaintiff abandoned a claim that he had been fired for the purpose of interfering with his pension rights. His former employer’s motion for summary judgment was granted because “[plaintiff's papers make clear that after after full discovery no evidence exists to indicate that defendants sought to interfere with his pension benefits.” The Titsch court was able to resolve the factual dispute that still exists in Garry’s suit. In Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911 (2d Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 454, 74 L.Ed.2d 607 (1982), the Second Circuit held that § 510 did not provide a cause of action to a retiree who had been denied an invitation to a retirement banquet.. The trial court found that he had been excluded not because the company intended to interfere with his retirement rights, or retaliate against him for exercising his rights, “but because the acrimony which had developed caused the company’s officers reasonably to apprehend that if he attended, an unpleasant incident would occur ruining the dinner for those invited.” Pompano, 680 F.2d at 916.

In contrast, a similar motion for summary judgment by the employer in Calhoun v. Falstaff Brewing Corp., 478 F.Supp. 357, 360 (E.D.Mo.1979) was denied because “[w]hether or not plaintiff’s rights were vested within the meaning of ERISA at the time of his discharge is irrelevant to this cause of action.” See also Kross v. Western Electric Co., Inc., 701 F.2d 1238 (7th Cir.1983). The Seventh Circuit reversed the district court’s grant of summary judgment and the district court’s finding that since the employee had already qualified for the company insurance plan, he was not protected by § 510:

... [The district court’s] conclusion is apparently based on the theory that once an employee has qualified for participation in an insurance plan, the employee can attain no increased “right” under that particular .insurance plan regardless of his period of uninterrupted employment with the particular company. The defendant cites no authority to support this novel theory, and our review of the case law and ERISA’s legislative history reveals no support for such a narrow reading of § 510.
* * * * * *
... There is no evidence that Congress intended ERISA to afford less protection to senior employees than that enjoyed by probationary or junior employees who have not qualified for coverage under particular employee benefit plans. Certainly, Congress did not enact ERISA with the intent to negate the long established practice of affording greater benefits and protections to those employees who have more seniority in time of service with the company than to junior employees. Accordingly, we reject the district court’s unsupported and narrow interpretation of § 510.

701 F.2d at 1242-1243.

B.

An additional argument by TRW raised in support of its motion for summary judgment is Garry’s failure to utilize and exhaust the administrative claim procedures provided in TRW’s pension and stock savings plans. The exhaustion of administrative remedies is not a prerequisite to bringing a civil action to redress violations of § 510 of ERISA. Amaro v. Continental Can Co., 724 F.2d 747, 752 (9th Cir. 1984); Kross v. Western Electric Co., 701 F.2d 1238, 1244 (7th Cir.1983); Janowski v. Local 710 Pension Fund, International Brotherhood of Teamsters, 673 F.2d 931 (7th Cir.1982) cert. denied, 459 U.S. 858, 103 S.Ct. 130, 74 L.Ed.2d 112 (1982). However, TRW urges this Court to follow the Kross decision which concluded that, although exhaustion is not required, the strong policy encouraging private resolution of ERISA-related disputes makes exhaustion the better practice.

This Court is persuaded that the holding in Amaro presents the better view. In Amaro, the Ninth Circuit rejected the Kross court’s analysis and distinguished the cases upon which Kross relied, including Challenger v. Local Union No. 1 of International Bridge, 619 F.2d 645 (7th Cir.1980); and Amato v. Bernard, 618 F.2d 559 (9th Cir.1980). Both of the cases on which Kross relied involved violations of the terms of pension plans. In contrast, Garry’s suit, and the suit in Amaro, involve alleged violations of the provisions of ERISA. TRW’s administrative process is intended to resolve disputes for claims for benefits under its plans. Garry’s suit does not allege that TRW violated a provision of his pension or stock savings plan. Rather, he contends that his termination by TRW violated a provision of ERISA. See Amaro at 751:

Both Challenger and Amato, the cases relied on by Kross, dealt with the rights of a party under a pension plan that falls within ERISA coverage. Both cases contained internal appeal procedures, congressionally mandated by section 503, that were designed to hear the claims presented in those cases. We are faced solely with an alleged violation of a protection afforded by ERISA. There is no internal appeal procedure either mandated or recommended by ERISA to hear these claims. Furthermore, there is only a statute to interpret. That is a task for the judiciary, not an arbitrator. Alexander, 415 U.S. at 57, 94 S.Ct. at 1024. Therefore, a “primary reason for the exhaustion requirement,” Amato, 618 F.2d at 568; see Kross, 701 F.2d at 1245 (quoting Amato), is not present in this case. Accordingly, we find Kross to be based on a flawed premise, and we refuse to follow it.

Amaro, 724 F.2d at 751-752. (footnote omitted). The Ninth Circuit went on to analyze the analogous situations considered by the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) and Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 729, 101 S.Ct. 1437, 1438, 67 L.Ed.2d 641 (1981) where utilization of arbitration processes were not binding, nor were they prerequisites to suit. 724 F.2d at 752.

Even accepting the Kross court’s decision that exhaustion was the better approach, this Court would exercise its discretion to determine that an exhaustion requirement is not appropriate in Garry’s case. Kross explicitly recognized that

... application of the exhaustion doctrine in ERISA cases by requiring a claimant to exhaust administrative remedies prior to bringing suit is a matter within the discretion of the trial court.

701 F.2d at 1244. Refusing to hear Garry’s ERISA claim under the exhaustion doctrine would only fracture his suit and would still require consideration of his claim that he was wrongfully discharged— an allegation that provides a cause of action under both the ADEA and ERISA. This Court’s analysis of ERISA and the exhaustion doctrine is consistent with that of the Amaro court. See also Citro v. TRW, C82-2911 (N.D.Ohio October 12, 1984) (exhaustion of administrative remedies under TRW’s pension plan not a prerequisite to a suit under § 510). TRW’s motion for summary judgment on Garry’s claim under § 510 of ERISA must be denied.

For the reasons set forth above, TRW’s motion for partial summary judgment on damage issues and to strike certain portions of plaintiff’s complaint, and TRW’s motion for summary judgment on the ERI-SA claim are denied.

IT IS SO ORDERED.

      . "TRW” refers to all three defendants unless otherwise noted.


source: Caselaw Access Project

author: GESELL, District Judge.

license: Public Domain

text:
    Edison W. MILLER, Plaintiff, v. John F. LEHMAN, Jr., Secretary of the Navy, Defendant.
    Civ. A. No. 84-2417.
    United States District Court, District of Columbia.
    Jan. 28, 1985.

      Richard L. Swick, Washington, D.C., for plaintiff.
    Mitchell R. Berger, Asst. U.S. Atty., Lt. Col. Keith Sefton, USMC, Office of Judge Advocate Gen., Washington, D.C., for defendant.
   MEMORANDUM

GESELL, District Judge.

Edison W. Miller, a retired Marine Corps colonel who spent five years as a prisoner of war in Vietnam, was censured by former Secretary of the Navy John Warner for alleged misconduct while a prisoner. The Board for Correction of Naval Records, acting pursuant to the Military Records Correction Board Act, 10 U.S.C. § 1552, recommended expungement of the letter of censure, concluding that “traditional concepts of fair play and justice [were] violated” by the Navy’s failure to let Miller defend himself before the censure was issued. Secretary Lehman rejected this recommendation. This suit challenges Secretary Lehman’s decision refusing to expunge. The case is before the Court on defendant’s motion for affirmance and plaintiff’s cross-motion for summary judgment. Both motions have been fully briefed by the parties, and there are no material facts in dispute.

I. The Scope of Review

Because there is some dispute as to the proper standard of review in a case such as this, the law pertaining to review of actions concerning military records will be set out in some detail at the outset.

The Military Records Act provides in relevant part:

The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.

10 U.S.C. § 1552(a). Under this act and the applicable regulations, the Board for Correction of Naval Records hears applications for correction of records and recommends action to the Secretary of the Navy. 32 C.F.R. § 723.2(b). The Secretary’s decisipn becomes the final agency action subject to the standards of review set out in the Administrative Procedure Act (APA), 5 U.S.C. § 706(2). The Court must determine whether the Secretary’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

This standard of review is well established for actions seeking correction of military records. See, e.g., Neal v. Secretary of the Navy, 639 F.2d 1029, 1037 (3d Cir. 1981); Matlovich v. Secretary of the Air Force, 591 F.2d 852, 857 (D.C.Cir.1978); Benvenuti v. Department of Defense, 587 F.Supp. 348, 355 (D.D.C.1984); cf. Secretary of the Navy v. Huff, 444 U.S. 453, 457 n. 5, 100 S.Ct. 606, 608 n. 5, 62 L.Ed.2d 607 (1980). In particular, if the Secretary chooses to overrule the Board’s recommendation, he is required both by regulation, 32 C.F.R. § 723.7, and by the principles of the APA to give a reasoned explanation for his decision. See Matlovich v. Secretary of the Air Force, 591 F.2d at 860.

Contrary to the misguided view of the government, it is “well settled” that judicial review of the Secretary’s actions is in accord with the usual APA standards and cannot be so deferential as to effectively deny review. See Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 812 (1979). A primary reason for not giving broader deference to the Secretary is that Congress, by eliminating private bills as an alternative means for correcting military records, intended “that the Secretaries have a duty as well as the power to afford servicemen proper relief.” Id. at 812 (emphasis added); Baxter v. Claytor, 652 F.2d 181, 185 (D.C.Cir.1981), holding that the Secretary has nondiscretionary duty to act where records were based on unconstitutional military proceedings.

This case focuses, then, on whether the Secretary abused his discretion or acted arbitrarily and capriciously in rejecting the Board’s recommendation. Accordingly, it is not the Court’s duty to conduct a de novo examination of the merits of the underlying letter of censure and the plaintiff’s behavior while a prisoner of war. However, a discussion of the undisputed facts concerning the investigation giving rise to the letter of censure is critical to resolution of the issues under review.

II. Factual Background

Edison W. Miller was a lieutenant colonel in the Marine Corps and an 18-year veteran of the military when he was shot down on a combat mission over North Vietnam on October 13,1967. He suffered a broken back, crushed ankle and other injuries in ejecting from his airplane. Miller was immediately captured by the North Vietnamese and was confined in various prison camps until his release along with other prisoners on February 13, 1973.

On June 25, 1973, Rear Admiral James Stockdale, the senior Naval officer POW, formally preferred charges under Article 30 of the Uniform Code of Military Justice, 10 U.S.C. § 830(a), against Miller and several other former prisoners. The charges included soliciting fellow POWs to mutiny, accepting special favors from the enemy, informing on fellow prisoners, and mutiny by refusing to obey orders of superior POWs, in violation of 10 U.S.C. §§ 881, 882, 892, 894, 904, and 905. Several of the charges were punishable by death. See, e.g., 10 U.S.C. §§ 894(b), 904.

The day after the charges were filed, Miller’s appointed counsel was told informally of the general purport of the charges. But Article 30 requires that an accused “be informed of the charges against him as soon as practicable.” 10 U.S.C. § 830(b). The Board found that Miller never received more than a vague idea of the nature of the accusations. He never received a copy of any of the formal allegations of misconduct. He never learned what acts he had allegedly committed giving rise to the charges. He never learned the names of witnesses against him.

At the time the charges were filed, the Naval Investigative Service had already conducted an investigation of Stockdale’s charges at his request, and its report was forwarded with the charges to then Navy Secretary Warner. Miller subsequently asked to be interviewed by the Investigative Service but was refused. His counsel was denied access to the Service’s report.

At the request of Secretary Warner, the Navy Judge Advocate General’s office reviewed the charges in light of the preliminary evidence and policy considerations. The Judge Advocate General, Rear Admiral Merlin H. Staring, concluded that prosecution of many of the charges was precluded by the Secretary of Defense’s policy, announced shortly after the POWs’ return, of not prosecuting any returned POW based solely on propaganda statements made while in prison. However, Staring concluded that the remaining charges were substantial, and he recommended that Secretary Warner, pursuant to his authority to convene a general court-martial under 10 U.S.C. § 822, should order a formal pre-trial investigation under Article 32 of the Code, 10 U.S.C. § 832.

Article 32 investigations provide substantial procedural rights to the accused, including the rights to notice of the charges, to counsel, to cross-examine witnesses and to present evidence in his own behalf. 10 U.S.C. § 832(b).

Staring's report was sent at his recommendation to the Marine Corps Commandant, Gen. R.E. Cushman, Jr. In a memorandum to Secretary Warner dated July 21, 1973, Cushman recommended that the charges be dismissed. He wrote in part:

While I decry the conduct of Lieutenant Colonel Miller while in captivity, and believe his actions cast a pall of dishonor on the Corps, and in particular on the honor of its officers, I cannot logically distinguish his misconduct from that of others whose actions have already been ‘forgiven.’ In particular, I note that no sound evidence has been developed which indicates that the actions of Lieutenant Colonel Miller directly resulted in serious injury or harm to another POW.

Administrative Record at 169.

Ten days later, on July 31, 1973, Miller’s lawyers met with Secretary Warner and his staff. Miller’s lawyers provided names of potential witnesses favorable to Miller. They were again refused information concerning the specifics of the charges. Subsequent to that, several more requests for access to investigative reports and names of adverse witnesses were refused.

In his July 16 memorandum, Judge Advocate General Staring suggested that Secretary Warner could interview potential witnesses to aid his decision about whether to proceed with a court-martial. Staring cautioned, however, that “you should avoid involving yourself so deeply in the cases [Miller’s and one other] that your interest in them could be construed to be other than an official interest.” That could disqualify the Secretary as an “accuser” from referring the charges to pre-trial investigation or trial. See 10 U.S.C. § 822(b). In apparent disregard of this advice, Secretary Warner subsequently conducted personal interviews with 19 former POWs. However, he rebuffed Miller’s requests to be interviewed. Nor was Miller interviewed by anyone on the Secretary’s staff. Miller was not present at any of the interviews of other former POWs.

On September 27, 1973, Secretary Warner publicly announced his decision in the case at a convention of the Naval Reserve Association in San Diego. The Pentagon issued a news release the same day, and the story was carried on network news broadcasts and in newspapers across the country. Miller learned of the action through these news accounts. Several weeks later he received the official notice of Secretary Warner’s action in the form of a letter from Secretary Warner styled “Administrative Letter of Censure.”

After recounting the Department’s and his own investigation of the case, Secretary Warner wrote:

I have reached the judgment that your conduct during certain of the periods when you were a prisoner of war in North Vietnam failed to meet those high standards which are required of an officer in the Armed Forces of the United States. You placed your personal comfort and welfare above that of your fellow prisoners of war. But of greater seriousness, your conduct, at times and for extended periods, was severely detrimental to both the welfare and the morale of your fellow prisoners, many of whom had been in captivity with you for a number of years.
Based upon the foregoing, and pursuant to section 0102b of the Manual of the Judge Advocate General, you are hereby administratively censured.

The letter went on to recount why Secretary Warner had decided to take no other action against Miller:

Although the charges preferred against you do warrant the convening of a pretrial investigation under Article 32, Uniform Code of Military Justice, and thereafter possible trial by general court-martial, I have decided to dismiss those charges. I feel that further proceedings, with their attendant publicity, would subject many former prisoners of war and their families, as well as your own family, to additional serious disruption and hardship disproportionate to any national interest which could conceivably be served thereby. I make this decision with a view to the best interests of the United States Naval Service and the community of returned prisoners of war and their families.

At his news conference in San Diego, Secretary Warner elaborated on these reasons. He said he had concluded before the investigation that further imprisonment was unwarranted considering Miller’s five years in a Vietnamese prison camp. Other outcomes of a court-martial such as loss of retirement benefits would be unfair to Miller’s family, he said. “So administratively I could achieve the same thing as the courts-martial and I thereby removed the inconvenience to perhaps 100 or more from being brought back from all corners of the United States to participate in a long trial,” he said. Administrative Record at 40.

Upon the formal dismissal of the charges, Miller received a promotion to colonel that had been delayed during the investigation. He also received an immediate disability retirement. The disability was based on the permanent injuries he suffered upon capture in 1967.

On December 6,1973, Miller filed a statement in reply to the letter of censure. Section 0102b of the Manual of the Judge Advocate General provided for such replies. By separate letter, Miller at the same time asked that the censure be canceled. In September 1974, Miller filed a petition asking the Board for Correction of Naval Records to cancel or expunge the letter of censure.

III. Subsequent Proceedings

The Board’s consideration of Miller’s case extended from 1974 to 1981. In that time, the Board solicited and received advice of the Judge Advocate General relating to the legal aspects of Miller’s petition, and reviewed the summary of the Naval Investigation Service’s investigation. Miller testified before the Board in May 1977 and January 1980. These appearances were his first opportunity to respond to the charges besides his reply to the letter of censure. It was not until around the time of the second hearing that he became aware of the specific nature of the accusations.

On February 21, 1981, the Board voted unanimously to recommend expungement of the letter of censure. In a detailed report to the Secretary, the Board recounted the history of the case as summarized above, emphasizing the lack of notice to Miller of the nature of the charges and the failure to provide him an opportunity to defend himself before the censure was published. The Board concluded:

In view of the foregoing the Board finds that Petitioner [Miller] has been deprived of the fundamental fairness traditionally accorded a member of the Naval Service.... It should be expressed that the findings of the Board in this regard are specifically directed to the procedures used to censure Petitioner. While such procedures may well be legally unobjectionable, the entire atmosphere in which they were conducted was such as to deprive Petitioner of an opportunity to be heard by the official who issued the censure. It has long been the policy of the Naval Service that discipline will be administered with a view toward evenhandness. Contrary to this well established policy, Petitioner was not afforded the opportunity to be heard or present evidence on his own behalf. The Board concludes that under the circumstances of this case traditional concepts of fair play and justice have been violated. What Petitioner did or did not do in confinement is immaterial to the resolution of the issue, and the Board specifically declines to make findings as to whether or not Petitioner engaged in misconduct while a prisoner of war. To have undertaken to censure Petitioner, even privately, without according him the minimal courtesy of an interview is repugnant to basic principles of fairness....
In view of the foregoing the Board finds that Petitioner has suffered an injustice. The Board’s findings in this regard are based upon the failure of the naval service to afford Petitioner the opportunity to explain his situation prior to the issuance of the letter of censure. In this regard the Board particularly notes that Petitioner was not interviewed by the Naval Investigative Service; not furnished a copy of any formal allegations of misconduct; and not tendered the statements considered by the Secretary of the Navy in reaching the decision to censure him. These factors coupled with the recommendation by the Commandant of the Marine Corps to dismiss such charges as were contemplated lead the Board to the conclusion that relief in the form of expung[e]ment of the censure is warranted.

Administrative Record at 6-7.

More than a year later, Secretary Lehman issued his decision, acting through the Assistant Secretary of the Navy for Manpower and Reserve Affairs. His statement is set out in full:

The Board’s report in this case has been carefully reviewed. It does not contain sufficient evidence to support the Board’s conclusion that the petitioner has suffered an injustice. The procedures used by the Secretary in administratively censuring the petitioner have not been shown to be incorrect nor has evidence been made a matter of record which would refute the Secretary’s long recognized authority to so act. Further, the record does not reflect that such action by the Secretary should have been governed by the Uniform Code of Military Justice (UCMJ) Art. 15, or that the petitioner was deprived of due process to the extent that corrective action is warranted. Accordingly, the Board’s recommendation for corrective action in this case is hereby disapproved.

A.R. at 8. Shortly thereafter, Miller was notified that the Secretary’s decision constituted a final adjudication of his petition under 10 U.S.C. § 1552. This lawsuit followed.

IV. Analysis

After carefully examining the record of this case, with particular attention to the Board’s report and the Secretary’s final decision, the Court has concluded, for reasons set out below, that Secretary Lehman abused his discretion and acted arbitrarily in rejecting the Board’s recommendation.

The statutory mandate of both the Board and the Secretary is two-fold: to correct errors and to remove injustices. 10 U.S.C. § 1552(a).

The two things [“error” and “injustice”] are not the same. “Error” means legal or factual error____ “Injustice”, when not also “error”, is treatment by the military authorities, that shocks the sense of justice, but is not technically illegal.

Reale v. United States, 208 Ct.Cl. 1010, 1011, 529 F.2d 533, cert. denied, 429 U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 129 (1976). These two prongs will be considered in turn.

A. Injustice

The Board expressly left to one side the question of legal error in the procedures used to censure Miller, basing its recommendation on a finding of injustice.

This is manifestly a case that “shocks the sense of justice,” whatever the technical legalities may have been. No legal training is required to know that in a society that enshrines fundamental fairness as one of the highest public values, what happened to Colonel Miller was wrong. A military officer with a long and honorable career may not be publicly condemned by the highest commander of his service for serious dereliction of duty without an opportunity to know the accusations against him and to defend himself.

Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed.2d 865 (1950) (Jackson, J.). Secretary Warner’s announced purpose to accomplish the same result as court-martial without applying procedures of rudimentary fairness makes the action especially unfair.

Whether Miller suffered a technical violation of due process rights will be considered below in the analysis of legal error. It bears emphasizing that at this point of the analysis, the Due Process Clause per se is not at issue; what is at issue is whether the values that underlie due process were properly invoked by the Board in finding that an injustice had occurred, and whether Secretary Lehman can lightly cast aside that finding of injustice.

The Secretary’s discretion in overruling the Board is limited. The Secretary “may not arbitrarily overrule the recommendations of the Board where its findings are justified by the record.” Neal v. Secretary of the Navy, 639 F.2d at 1043 n. 13; accord Turner v. Callaway, 371 F.Supp. 188, 193 (D.D.C.1974).

The Secretary’s decision disputed none of the Board’s careful findings of fact, which were based on uncontradicted evidence. The Secretary ruled essentially that because no legal error had been found, no injustice occurred. The Secretary may not so casually collapse together the two purposes that Congress assigned to the military records boards.

Traditional standards of fair play in the Navy are at the heart of the Board’s decision. For the Secretary to have reached a non-arbitrary finding that no injustice occurred here, the Secretary at a minimum must have shown in his written decision that the Board was wrong in its assessment of Navy tradition. This is a heavy burden in any case, because under the statute’s requirement that the Secretary act “through boards of civilians,” 10 U.S.C. § 1552(a), Congress clearly contemplated that the Board would act as the Navy’s institutional memory and conscience and thus would acquire expert status in assessing the contents of tradition. Traditions of fair play have never been confined to strict legality.

B. Legal Error

Secretary Lehman’s decision was arbitrary for a second, equally plain reason. The Board made clear that as a group of laymen, they were not expert on the legality or constitutionality of the procedures used to censure Miller. In finding that the procedures “may well be legally unobjectionable,” the Board in essence deferred a ruling on the legal error prong of its corrections function under 10 U.S.C. § 1552 and ruled only on the injustice aspect of its mandate. The Board having done so, the Secretary was obligated to make some independent analysis of the legal error issue before concluding that no legal or constitutional error was committed. There is no evidence that the Secretary did so. Instead, the Secretary simply recited a conclusion that no error was committed. This failed to satisfy his duty to give a reasoned explanation.

While the Secretary has the duty to analyze issues of legal error in the first instance, cf. Benvenuti v. Department of Defense, 587 F.Supp. 348, 355 (D.D.C.1984), such issues are questions of law subject to the court’s independent determination where the Secretary has failed to issue a reasoned statement of his views. The Court has conducted such an analysis and has concluded for the reasons set out below that clear legal error was committed in the procedures used to censure plaintiff and that the Secretary’s failure to recognize the error was arbitrary.

There are basically three tiers of discipline in the U.S. military justice system in increasing order of seriousness: nonpunitive measures, nonjudicial punishment, and courts-martial. Each step up the tier provides correspondingly greater procedural protections for the accused. See generally E. Byrne, Military Law 15 (3d ed. 1981).

The Uniform Code of Military Justice provides only for nonjudicial punishment, Article 15, 10 U.S.C. § 815, and various grades of courts-martial, 10 U.S.C. § 816. Congress established the system of nonjudicial punishment expressly to punish minor offenses. 10 U.S.C. § 815(b).

The third and lowest tier of the military justice system, nonpunitive measures, is meant for offenses considered too minor even for Article 15 nonjudicial punishment. Legal authority for nonpunitive measures — which can include written or oral reprimands, censures and the like — derives not from statute but from the inherent authority of commanding officers. See 28 Op.Att’y Gen. 622, 625 (1911).

This inherent authority is recognized by the Manual for Courts-Martial, which provides:

Article 15 and this chapter [setting out regulations for nonjudicial punishment under Article 15] do not apply to, include, or limit the use of those nonpunitive measures that a commanding officer or an officer in charge is authorized and expected to use to further the efficiency of his command or unit, such as administrative admonitions, reprimands, exhortations, disapprovals, criticisms, censures, reproofs, and rebukes, written or oral, not imposed as punishment for a military offense____

Paragraph 128c (1969 ed.) (emphasis added). The specific provision for administrative letters of censure by the Secretary of the Navy derives its authority from 11128c and is found in § 0102b of the Manual of the Judge Advocate General (1970). No procedural protections accompany administrative letters of censure except for a limited right of reply.

Two important limitations on the use of nonpunitive measures prevent abuse of this otherwise unfettered authority. First, as noted by the emphasis added above to 11128c, nonpunitive measures are just that: not punishment; they cannot be punishments in disguise. See 28 Op.Att’y Gen. at 625. Merely labeling a censure as nonpunitive does not make it so; one must look to the intent of the author. Military courts have reversed impositions of nonpunitive measures where the measure was intended as punishment. See E. Byrne, Military Law 733-34 (3d ed. 1981) (discussing cases).

The second limitation on nonpunitive measures is inherent in the scheme of military justice: such measures are reserved for the most minor of offenses.

Both of those limitations were violated by Secretary Warner’s administrative letter of censure to Miller. By the plain language of the Secretary’s letter of censure and by his statements at the news conference, the letter was intended as a substitute for a general court-martial, equal in its practical effect to any sentence that would follow a guilty verdict at a general court-martial. The deliberate publication of the letter by Pentagon press release and by personal announcement by the Secretary makes the punitive intent all the more plain.

. As for the second limitation, the Secretary himself concluded that Miller was guilty of capital crimes and that there was sufficient evidence to prosecute.

By violating these two limitations, Secretary Warner convicted and publicly punished Colonel Miller for serious offenses without providing the basic safeguards traditionally attached to military prosecutions for such offenses. Whatever special considerations may have affected Secretary Warner’s action, he proceeded outside his authority when he issued the administrative letter of censure.

The system of military justice is replete with procedural protections for the accused in the Uniform Code of Military Justice. See, e.g., 10 U.S.C. § 815(a), (e) (right to demand court-martial instead of nonjudicial punishment and right to appeal sentence under nonjudicial punishment), 10 U.S.C. § 822(b) (right not to have court-martial convened by an accuser), 10 U.S.C. § 832(b) (right to pretrial discovery of evidence against accused). These provisions provide special statutory protection for the reputational and other liberty interests of members of the armed forces. To permit a Secretary to use his administrative authority to censure in such cases would undermine due process rights and would demonstrate a departure from traditional standards of fairness in the Department of the Navy.

Comprised as it was of laymen, the Board understandably did not undertake a legal analysis of the authority for the letter of censure. The fact that the Court has now done so demonstrates the soundness of the Board’s non-legal conclusion that an injustice occurred here. It is equally clear that Secretary Lehman acted arbitrarily both in refusing to follow the Board’s recommendation that an injustice had occurred, and also in failing to consider, as he was required to do, that legal error occurred as well and to so find.

The government’s motion for affirmance is denied and the plaintiff’s motion for summary judgment is granted.

It is clear from the foregoing that this record, upon which the Secretary must base his judgment, contains no ground for any decision but one to expunge. Therefore the case is remanded with direction to the Secretary to order the expungement recommended by the Board.

      . The Court has jurisdiction of this case under 28 U.S.C. § 1331. Plaintiff seeks no damages, only equitable relief.

      . The Navy is an administrative agency pursuant to 5 U.S.C. § 701. The exceptions in that section from application of the Administrative Procedure Act to certain military functions, 5 U.S.C. § 701(b)(1)(F), (G), do not apply here. See Hertzog v. United States, 167 Ct.Cl. 377 (1964).

      . In arguing for a much more deferential standard of judicial review, the government seriously misstates the standard of judicial review in at least two important respects. First, the government repeatedly contends the Secretary may overrule the Board as long as his decision is not "contrary to all evidence,” quoting Boyd v. United States, 207 Ct.Cl. 1, 9 (1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976), or as long as “his views are based upon any 'evidence presented in the record made to the board,’” quoting Horn v. Schlesinger, 514 F.2d 549, 553 (8th Cir. 1975). Second, the government contends that when the facts are undisputed and the Board’s recommendation is based on a finding not of error but only of "injustice," the Secretary "is free to act ... without constraint from the board’s views.” Defendant’s Memorandum in Opposition to Plaintiffs Cross-Motion for Summary Judgment at 4.

        Neither of these contentions is supported by the law. As to the "any evidence” standard, the government has misrepresented the plain meaning of the cases it cites. Boyd set out a standard of “substantial evidence" in just those words; the decision went on to state that an action of the Secretary "contrary to all evidence” would be a clear example of an arbitrary decision. 207 Ct.Cl. at 8-9. Similarly, the language taken by the government from Horn refers only to a requirement that the Secretary act on evidence in the record, not outside it.
      Federal courts are entitled to a higher degree of candor and professional responsibility from government counsel.
      As to the second contention, the cases again do not support the government’s view. While the courts of course give deference to purely policy decisions, e.g., Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir.1974), a judgment as to what constitutes an "injustice” is not such an unfettered inquiry, but one that is guided by traditional notions of injustice as developed, particularly in this instance, by the boards of corrections themselves, and as informed by due process notions of fundamental fairness.

      . The Board made its finding that Miller had never been notified of the charges and specifications against him based on the uncontradicted evidence before it. A memorandum from the Navy’s Judge Advocate General to the Secretary of the Navy dated July 16, 1973 stated that “[a]ction to effect personal notification" to Miller of the charges was taken on June 26, 1973. That was an apparent reference to the non-specific notice given to Miller’s appointed attorney.

      . According to the Board, Miller did not receive access to the specifications of the charges against him until 1980, many years' into the Board’s review of the prior proceedings.

      . Government counsel seriously misled the Court in connection with the above statement. In their brief, counsel quoted only from the words "I decry” to “honor of its officers” and represented that partial quotation as a complete sentence without ellipsis, thus completely altering its intended meaning. Defendant’s Memorandum in Support of Judgment of Affirmance at 4. The standards of ethical advocacy demand more, particularly from lawyers representing the United States of America.

      . See also Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ”) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)).
      The centrality of the "notice and opportunity to be heard” requirement in the context of military records corrections is well recognized. See Neal v. Secretary of the Navy, 639 F.2d 1029, 1043 (3d Cir.1981).

      . Reputation alone is not always a protected liberty or property interest, absent special statutory protection. See Mosrie v. Barry, 718 F.2d 1151, 1159 (D.C.Cir.1983); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The due process question here accordingly will require consideration of special protections the military justice system provides for reputation. See Part IV-B below.

      . The distinction between legal error and injustice, and the differing standards of judgment flowing from that distinction, were recognized in this case by the Judge Advocate General. The Board, composed of civilian Navy Department executive employees, sought the Judge Advocate General’s advice on the Miller case, pursuant to 32 C.F.R. § 723.11(a). In his response, the Judge Advocate General expressly limited himself to questions of legal error and advised the Board that the issue of injustice was "solely within your jurisdiction" and that his opinion "should not be construed in any way as a reflection upon” the question of injustice. Administrative Record at 55. The Board members who decided Miller’s case stressed that they were not lawyers. A.R. at 269.
      The arbitrariness of the Secretary’s decision is further demonstrated by his ignoring the error/injustice distinction that the chief legal officer of his department found so important.

      . That section provides:
      In addition to the censures discussed in section 0102a, the Secretary of the Navy may, by means of a written communication, administratively censure persons in the naval service without reference to Article 15, UCMJ. Unless otherwise directed, a copy of the communication will be filed in the official record of the person censured and recorded in departmental records. The provisions of Article 15, UCMJ, chapter XXVI, MCM [Manual for Courts-Martial], and sections 0101 and 0102 of this Manual (including the right to appeal) are not applicable to administrative censure by the Secretary of the Navy. However, if the person censured is an officer and a copy of the communication is to be filed in his official record and recorded in departmental records, the officer being censured may submit such official statement as he may choose to make in reply. Any such reply shall be couched in temperate language and shall be confined to pertinent facts. Opinions shall not be expressed nor the motives of others impugned.
      Replies shall not contain countercharges.
      Manual of the Judge Advocate General § 0102b. Section 0102a referenced by § 0102b is a provision for punitive letters of censure which are considered nonjudicial punishment and thus must follow the requirements of Article 15, including procedural protections for the accused.

      . That the Navy itself regards publication of a censure as punitive is clear from the Manual of the Judge Advocate General, which states at § 0102i that " 'public reprimands’ ... are looked upon with disfavor by the Department of the Navy” which prefers private reprimands even when the reprimand is imposed as nonjudicial' punishment under Article 15. The Navy, however, does provide for routine posting of the results of nonjudicial punishment proceedings. See Ash v. United States, 608 F.2d 178, 179 (5th Cir.1979).

      . Since military law provides special protection for reputation through the procedural safeguards summarized above, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), would not apply. Congress, of course, also has shown special solicitude for the reputation of members of the armed forces by establishing the procedures of 10 U.S.C. § 1552 for post-deprivation review of reputational harm.


author: VANCE, Circuit Judge: PROPST, District Judge,

text:
    Morris HARDY, individually, and on behalf of all others similarly situated, Plaintiffs, v. George C. WALLACE, in his capacity as Governor of the State of Alabama, et al., Defendants.
    Civ. A. No. CV84-G-2689-W.
    United States District Court, N.D. Alabama, W.D.
    Jan. 30, 1985.

      John H. England, Jr., England & Bivens, Tuscaloosa, Ala., Armand Derfner, Washington, D.C., for plaintiffs.
    James J. Jenkins, Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, Ala., for defendants Smith, Morrow and Gay.
    Michael D. Smith, Hall, Clark & Smith, Eutaw, Ala., for defendant Green County Racing Com’n.
    Before VANCE, Circuit Judge, and GUIN and PROPST, District Judges.
   VANCE, Circuit Judge:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is a class action brought by black citizens and electors of Greene County, Alabama. In this phase of the litigation plaintiffs claim that Act No. 507 of the 1983 Alabama Legislature is unenforceable because it has not been approved under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. They seek appropriate declaratory and injunctive relief on the basis of such claim. Following a hearing on the merits the court makes and enters the following findings of fact and conclusions of law.

Findings of Fact

1. Greene County is a predominantly rural county in western Alabama. According to the 1980 census the population of Greene County was 11,021, which amounts to less than three tenths of one percent of the total population of Alabama. Seventy-eight percent of the inhabitants of Green County are black.

2. In 1975 the Alabama Legislature passed Act No. 376, which authorized the creation of the Green County Racing Commission to regulate, license and supervise greyhound racing and wagering thereon. The act provided that the commission should consist of three persons appointed by the legislative delegation that represented Greene County in the House and Senate of Alabama. At that time all of the Greene County legislators were white. The act contained a schedule of fees, commissions and taxes to be collected from any licensee conducting greyhound racing and specific provisions for the use and disposition of the funds generated by the race track. The legalization of greyhound racing, the creation of the commission, the method of selecting the commission members, the taxes to be levied, the disposition of funds and all other provisions of the act were conditioned, however, upon an affirmative vote in a referendum to be submitted to the voters of Greene County.

3. The voters of Greene County approved the act in such referendum and in due course a license was issued by the commission. The licensee built a race track and began operations in Greene County.

4. All of the other acts which have been passed by the Alabama Legislature authorizing pari-mutuel betting in other localities of the state allow for local control of the regulatory agency through participation in the appointment of its members by the popularly elected local legislative delegation.

5. The Commission created by Act No. 376 has extensive power over any licensee authorized by it to conduct greyhound racing. It is the agency charged with ensuring that the revenues are collected, that the provisions of law are followed — including the provision that 75% of all of the licensee’s employees must be bona fide citizens of Greene County, which has an 18% unemployment rate. The Commission may revoke or suspend a license. It may examine the books and records of the licensee. It may fix the dates on which race meetings may be held and make regulations governing the operation of any race track in the country. In short, it is the agency that has total regulatory authority over a highly regulated enterprise.

6. For the fiscal year ending September 30, 1984, the race track licensed and regulated by the Greene County Racing Commission generated $1,300,000 in tax revenue for the county’s general fund. During that same year the county’s total budget was $2,055,000. The race track thus was responsible for 63% of the total budget of Greene County. Not only is the race track the largest source of county revenue, but it is also the major employer in the county.

7. On April 11, 1983 the United States District Court for the Middle District of Alabama rendered its opinion in Burton v. Hobbie, 561 F.Supp. 1029 (M.D.Ala.1983) (three-judge court), which approved a new legislative reapportionment act and ordered elections to be conducted under that act during the current year. It was apparent under the new apportionment plan that Greene County was in both a House and a Senate district likely to elect black candidates to those offices, which did in fact occur.

8. Under the Alabama constitution, local acts, those that apply to any subdivision of the state, require advertisement in the local newspapers prior to their passage by the Legislature. On April 14, 1983, just three days after the court’s decision in Burton v. Hobbie, the bill which was later to become Act No. 507 of the 1983 Regular Session of the Alabama Legislature was advertised in local newspapers in Greene County. Under so-called “legislative courtesy” the practice of the Alabama Legislature is to pass perfunctorily those local acts on which the local House and Senate members are in agreement. In due course, therefore, Act. No. 507 was approved by the Legislature on July 18, 1983. It amended Section 1 of Act No. 376 of the 1975 Legislature to provide that the Greene County Racing Commission should consist of three persons appointed by the governor of the state for terms of eight years. George C. Wallace, who was then and is now governor of Alabama, is white, as were all of Alabama’s previous governors.

9. On April 19, 1984 the Attorney General of Alabama submitted both Act No. 376 of the 1975 Legislature and Act No. 507 of the 1983 Legislature to the Attorney General of the United States for clearance under Section 5 of the Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973c. The response of the Assistant Attorney General of the United States dated 18 June 1984 is made Appendix A to these findings.

10. In response to the Alabama Attorney General’s request for reconsideration, the Assistant Attorney General of the United States issued his letter of October 31, 1984, which is appended as Appendix B to these findings.

11. The newly elected black legislators representing Greene County introduced legislation to repeal Act No. 507, but the committee of the Alabama Senate to which the bill was referred would not report it to the Senate. The local state senator testified without dispute that such obstruction of local legislation agreed upon by the local delegation was wholly unprecedented. While this is a possible overstatement, we accept and find that such action was virtually without precedent.

12. Defendants Smith, Morrow and Gay have been acting as the members of the Greene County Racing Commission since November 1, 1984 by virtue of their appointment made by Governor Wallace under the provisions of the challenged act.

Conclusions of Law

1. The State of Alabama and its political subdivision Greene County are subject to the special provisions of the Voting Rights Act of 1965, See United States v. County Commission, Hale County, Alabama, 425 F.Supp. 433, 439 (S.D.Ala.1976) (three-judge court), aff’d mem., 430 U.S. 924, 97 S.Ct. 1540, 51 L.Ed.2d 768 (1977).

2. The denial of Section 5 coverage and jurisdiction by the Assistant Attorney General in his letter appended as Appendix B does not constitute compliance with Section 5 or preclearance by the Attorney General of Act No. 507.

3. Whether or not it required such preclearance, Act No. 376 has been precleared pursuant to Section 5 of the Voting Rights Act. Act No. 507 has not been precleared. The question before this three-judge court, convened under 28 U.S.C. § 2284 and 42 U.S.C. § 1973c, is a very narrow one: whether such preclearance of Act No. 507 is required. Allen v. State Board of Elections, 393 U.S. 544, 558-59, 89 S.Ct. 817, 827-28, 22 L.Ed.2d 1 (1969). If so, the Act cannot be enforced until such preclearance is obtained and the plaintiffs are entitled to relief. If not, such relief should be denied at this stage and the case returned to the single judge court for adjudication of the remaining issues.

4. This court is due to accord deference to the agencies charged with the administration of the Voting Rights Act. For this reason we have given particular consideration to the case relied on in Appendix A, Horry County v. United States, 449 F.Supp. 990 (D.D.C.1978), from the court that provides the “basic mechanism for preclearance,” United States v. Board of Commissioners, 435 U.S. 110, 136, 98 S.Ct. 965, 981, 55 L.Ed.2d 148 (1978), and have also given particular consideration to both of the appended opinions of the Attorney General, who provides an “alternative procedure” for preclearance. Id.

5. Plaintiffs contend that the challenged act comes within Section 5 because it is a “standard, practice or procedure with respect to voting.” Acceptance of such a position would be a great deal more difficult if our examination focused on those words in a vacuum. Our vision is sharpened, however, by the interpretations from the Supreme Court and the lower courts. In Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), the Court first construed Section 5. Its examination of the original legislative history led it to conclude that Congress intended that the act be given “the broadest possible scope.” Id. at 567, 89 S.Ct. at 832. It concluded further “that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way.” Id. at 566, 89 S.Ct. at 832. It “was aimed at the subtle, as well as the obvious....” Id. at 565, 89 S.Ct. at 831. In his separate opinion Justice Harlan said of the Court’s opinion,

The Court, however, goes further to hold that a State covered by the Act must submit for federal approval all those laws that could arguably have an impact on Negro voting power, even though the manner in which the election is conducted remains unchanged.

Id. at 583, 89 S.Ct. at 840. In the companion case of Fairley v. Patterson, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), the Court observed that “the right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.” Id. at 569, 89 S.Ct. at 833. Two years later in Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), Justice Brennan, speaking for the Court, said,

Mr. Justice Harlan’s separate opinion in [Fairley ] accurately recognized that the Court’s holding rested on its conclusion that Congress intended to adopt the concept of voting articulated in Reynolds v. Sims [377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ], ... and protect Negroes against a dilution of their voting power.

Id. at 390, 91 S.Ct. at 437 (citations omitted). The Court’s reexamination of its decisions in 1978 led it to the conclusion that “§ 5’s coverage of laws affecting voting is comprehensive.” United States v. Board of Commissioners, 435 U.S. 110, 122, 98 S.Ct. 965, 974, 55 L.Ed.2d 148 (1978).

6. In Dougherty County Board of Education v. White, 439 U.S. 32, 34, 38, 99 5. Ct. 368, 370, 372, 58 L.Ed.2d 269 (1978), after reviewing its consistent adherence to a broad interpretation of § 5 the Court concluded that such construction apparently had the approval of Congress:

Had Congress disagreed with this broad construction of § 5, it presumably would have clarified its intent when re-enacting the statute in 1970 and 75.

The Court noted that although Congress gave extensive consideration to Allen and Perkins it reenacted the section without substantial modification. Id. at 39, 99 S.Ct. at 372.

7. The most relevant attribute of the challenged act is its effect on the power of the voters rather than any aspect of the electoral process. The Horry County court found this to be a subject within the reach of § 5:

An alternate reason for subjecting the new method of selecting the Horry County governing body to Section 5 preclearance is that the change involved reallocates governmental powers among elected officials voted upon by different constituencies. Such changes necessarily affect the voting rights of the citizens of Horry County, and must be subjected to Section 5 requirements. Cf. Perkins v. Matthews, supra; Allen v. State Board of Elections, supra.

449 F.Supp. at 995 (emphasis added). Less than a year ago, while holding section 5 applicable to a South Carolina statute, the Supreme Court listed several changes which might be covered by section 5 including “the basic reallocation of authority from the State legislative delegation to the Council.” McCain v. Lybrand, 465 U.S. 236, 104 S.Ct. 1037, 1046 n. 17, 79 L.Ed.2d 271 (1984).

8. The ordinary or routine legislative modification of the duties or authority of elected officials or changes by law or ordinance in the makeup, authority or means of selection of the vast majority of local appointed boards, commissions and agencies probably are beyond the reach of section 5, even given its broadest interpretation. Without undertaking to define a precise line of demarcation we conclude, however, that Act 507 is fundamentally different from such noncovered legislation. The attributes that characterize this fundamental difference are: (1) that it reverses a scheme of indirect local control of the Commission that was put in place by a vote of the people themselves; (2) that the Commission’s control of over 63% of the total county revenue makes it an agency of unique importance to the voters of Greene County; (3) that although the voters’ control of the Commission was indirect, it was nonetheless quite real when the Commission was selected by only the locally elected legislators; and (4) that the transfer of appointment authority to the governor, over 99.7% of whose constituents are not inhabitants of Greene County, substantially dilutes the power of the voters in Greene County by effectively eliminating the power of such voters over the Commission.

9. It is not the responsibility of this three-judge court to decide whether the change had a discriminatory purpose or effect, Dougherty County, 439 U.S. at 36, 99 S.Ct. at 371, but we do conclude that it clearly had a potential for discrimination and hence was subject to section 5.

10. We emphasize that our conclusions in this case are reached within the ambit of its peculiar facts. They should not be read to support a requirement of section 5 preclearance in the myriad of conceivable situations that are somewhat analogous but lack the attributes that we have expressly found to be determinative.

11. Because we conclude that Act 507 requires section 5 preclearance and has not been precleared, it cannot be enforced. Section 1 of Act 376 as originally adopted remains in effect until and unless such preclearance is obtained either in the District of Columbia District Court or from the Attorney General. The plaintiffs are entitled to both declaratory and injunctive relief, which will be incorporated in an appropriate judgment.

APPENDIX A

18 JUN 1984

Honorable Charles A. Graddick

Attorney General

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

Dear Mr. Attorney General:

This refers to Act No. 376, H.B. No. 1040 (1975), and Act No. 507, H.B. No. 830 (1983), which create and specify the methods by which elected officials appoint members of the racing commission in Greene County, Alabama, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submissions on April 19, 1984.

The Attorney General does not interpose any objection to the change embodied in Act No. 376 (1975). However, we feel a responsibility to point out that Section 5 of the Voting Rights Act expressly provides that the failure of the Attorney General to object does not bar any subsequent judicial action to enjoin the enforcement of such change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.48).

We have carefully considered the information you have provided concerning Act No. 507 (1983), as well as Census data and information provided by other interested parties. According to the 1980 Census, Greene County is 78-percent black. We note that, as a result of the latest reapportionment of the Alabama representative and senatorial districts in 1983 (Act No. 83-154), a unified Greene County has elected two blacks as its local delegation. Prior to that election, a divided Greene County had been represented by an all-white local delegation. We note further that Act No. 507 (1983) was proposed and first advertised in the Greene County Democrat, a local newspaper, on April 14, 1983, three days after the court in Burton v. Hobbie, 561 F.Supp. 1029 (D.Ala.1983), confirmed its order requiring the special elections which brought the black representatives into office.

Our analysis shows that Act No. 507 (1983) removes the authority to appoint county racing commission members from the county’s legislative delegation and places it with the governor. Thus, as the result of Act No. 507, the local delegation from Greene County, now consisting of two blacks, has lost its authority to appoint the members of the Greene County racing commission.

The question of whether a change in the powers of elected officials is a change subject to the preclearance provisions of Section 5 is one which has been addressed and resolved by the United States District Court for the District of Columbia in Horry County v. United States, 449 F.Supp. 990 (1978). That court, in concluding that a change such as that embodied in Act No. 507 (1983) is subject to the preclearance provisions of the 1965 Act, stated (449 F.Supp. at 995):

An alternate reason for subjecting the new method of selecting the Horry County governing body to Section 5 preclearance is that the change involved reallocates governmental powers among elected officials voted upon by different constituencies. Such changes necessarily affect the voting rights of the citizens of Horry County, and must be subjected to Section 5 requirements. Cf. Perkins v. Matthews, supra; Allen v. State Board of Elections, supra.

Under Section 5 of the Voting Rights Act the submitting authority has the burden of showing that the submitted change has no discriminatory purpose or effect. See Georgia v. United States, 411 U.S. 526 (1983); see also 28 C.F.R. 51.39(e). Our analysis shows that the change will have the proscribed effect because it is retrogressive with respect to minority voting strength within the constituency of the electorate which will elect the appointing authority after the change as compared to the minority strength in the constituency which would elect the appointing authority absent the change. Beer v. United States, 425 U.S. 130 (1976). In addition, the facts surrounding the enactment of Act No. 507 (1983) strongly suggest that it was enacted with the purpose of reducing the voting strength of the black electorate in Greene County with regard to this particular governmental function previously exercised by the delegation to the state legislature.

In light of the circumstances discussed above, I am unable to conclude that the State has met its burden of showing that the change is free of the prohibited racial purpose or effect. Accordingly, on behalf of the Attorney General, I must object to the provision in Act No. 507, H.B. No. 830 (1983), which changes the method of appointing the members of the county racing commission.

Of course, as provided by Section 5 of the Voting Rights Act, you have the right to seek a declaratory judgment from the United States District Court for the District of Columbia that this change has neither the purpose nor will have the effect of denying or abridging the right to vote on account of race or color. In addition, Section 51.44 of the guidelines permits you to request that the Attorney General reconsider the objection. However, until the objection is withdrawn or a judgment from the District of Columbia Court is obtained, the effect of the objection by the Attorney General is to make the implementation of Act No. 507 (1983) legally unenforceable. 28 C.F.R. 51.9.

To enable this Department to meet its responsibility to enforce the Voting Rights Act, please inform us of the course of action the State of Alabama plans to take with respect to this matter. If you have any questions, feel free to call Carl W. Gabel (202-724-8388), Director of the Section 5 Unit of the Voting Section.

Sincerely,

/s/ Wm. Bradford Reynolds

Wm. Bradford Reynolds

Assistant Attorney General

Civil Rights Division

APPENDIX B

October 31, 1984

Honorable Charles A. Graddick

Attorney General

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

Dear Mr. Attorney General:

You have asked by letter dated September 12, 1984, that the Attorney General reconsider the June 18 objection under Section 5 of the Voting Rights Act to Alabama Act No. 507, H.B. 830 (1983), concerning the appointment of the Greene County racing commission members. The focus of your request centers on the threshold question whether the submitted change — a transfer of appointment authority from the County’s legislative delegation of the Governor — is or is not one affecting voting so as to bring it within the preclearance requirements of the Act.

We initially were of the view, based largely on dictum in Horry County v. United States, 449 F.Supp. 990 (D.D.C. 1978), that a transfer of appointment power could be regarded as a voting change for purposes of Section 5 review. Our reexamination of that position, in light of the supplemental information you have provided and additional legal analysis on our part, now prompts a different conclusion. In light of this reversal, a full explanation of our position is necessary.

Section 5 of the Voting Rights Act, as amended, requires each covered jurisdiction — including the State of Alabama — to preclear, either with the Attorney General of the United States or with the United States District Court for the District of Columbia, each change after November 1, 1964, in “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting....” A transfer of appointment power from the Greene County legislative delegation to the Governor’s office is clearly a “change,” but it is equally clearly not a change of “any voting qualification or prerequisite to voting.” The issue is, therefore, whether it fits into the third available category under Section 5: a change in a “standard, practice or procedure with respect to voting.”

On this question, much has been submitted to this office by both the proponents and opponents of the questioned change, and we have undertaken a careful and painstaking legal analysis of the matter. It is certainly not the case that every reallocation of governmental power is covered by Section 5; nor can the dictum in Horry County properly be read to support such a proposition. Similarly, it would be wrong to conclude that no reallocation of governmental power can ever be considered a change “with respect to voting.” One can envision, for example, an enactment transferring all governmental powers from one elected body to another or from an elected body to one that is appointed (e.g., home rule legislation), and if such a transfer eliminated or substantially curtailed the existing voting opportunity of citizens, it could well constitute a Section 5 change “with respect to voting.”

The instant change does not concern a wholesale transfer of governmental power. It neither removes the vote from residents of Greene County, nor otherwise impedes or in any respect infringes on resident voting rights. To be sure, the County’s elected representatives, as a legislative delegation, lose the power to appoint racing commission members, but they lose none of their traditional and regular legislative functions — including the same opportunity as their predecessors to seek to have the appointment power returned to the delegation. In these circumstances, the change does not constitute a modification to a “standard, practice or procedure with respect to voting” that would require Section 5 review.

In light of this conclusion, the Attorney General is without authority under Section 5 to review Act No. 507 and therefore the June 18 objection must be withdrawn. Since this decision is jurisdictional in nature, we cannot, and thus do not, speak to the merits of the change in appointment authority. Accordingly, there is no occasion to assess the purpose or effect of this change and nothing in this letter should be construed as reflecting any position on such issues on the part of the Attorney-General.

Sincerely,

/s/ Wm. Bradford Reynolds

Wm. Bradford Reynolds

Assistant Attorney General

Civil Rights Division

PROPST, District Judge,

concurring.

I concur in Judge Vance’s opinion because I am of the opinion that it represents a correct extrapolation of the Supreme Court decisions since the initial passage of the Voting Rights Act. I do believe that the Supreme Court’s zeal to make a good law “better” may bring into question whether it has, at some point, impinged on the right to legislate reserved to Congress. The scope of the law has come a long way since Attorney General Katzenbach emphasized that the “bill really is aimed at getting people registered,” 1965 House Hearings 21, and since Assistant Attorney General Burke Marshall stated that “The problem that the bill was aimed at was the problem of registration____” Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., Sec. 2, p. 74.

It strikes me as peculiar that § 5, which has been variously described as “perhaps the most stringent of these remedies, and certainly the most extraordinary;” “an uncommon exercise of Congressional Power;” a “substantial departure ... from the ordinary concepts of our federal system;” and considered to be unconstitutional by Justice Black should be interpreted so as to give it “the broadest possible scope.”

While I agree with the dissenting opinions of Justice Harlan in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) and in Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971) and of Justice Powell in Dougherty County, I agree with Judge Vance that the majority opinions in those cases and other cases dictate our present decision. The facts of this case appear to be akin to the various “dilution” cases decided with reference to §§ 2 and 5. The interpretation of the Act in those cases has been bolstered by Congress amending the Act on occasions subsequent to these cases. While the subsequent recognition by Congress of a broad interpretation by the courts of earlier enacted legislation appears to me to be a circuitous route to legislation, it has been accomplished.

The key appears to be what it takes to make a vote “effective” as provided in 42 U.S.C. § 1973¿ (e)(1) (1981). Carried to its extreme this definition could include almost any legislation which tends to thwart the desires of any voter or a particular group of voters. I suggest that this case lies on the outer perimenters of the law and I concur only because of the special circumstances described by Judge Vance.

This 30 day of January, 1985.

      . See Act No. 97 of the 1973 Legislature (a general act applicable only to Mobile County); Act No. 575 of the 1983 Legislature (a local act applicable to Macon County); Act No. 131 of the 1984 Legislature (a general act applicable only to the City of Birmingham).

      . Under the .approved reapportionment plan as incorporated in Act 154 of the 1983 Legislature, Greene County is in House District 67, consisting of all of Greene and Sumter Counties and part of Choctaw County, and Senate District 23, consisting of House Districts 67, 68 and 69. The latter two house districts consist of Perry, Lowndes, Wilcox and parts of Hale and Dallas Counties. Both House District 67 and Senate District 23 have substantial black majorities.

      . Constitution of Alabama of 1901, Art. IV §§ 106, 110, Amendment No. 341.

      . We do not perceive that we have any substantial disagreement with the Attorney General with respect to his interpretation of the law. Our difference in conclusion is more the product of a different appreciation of the facts.

      . We recognize that § 5 has come a long way from its simple beginnings as a device to deal with "the problem of registration,” Allen v. State Bd. of Educ., 393 U.S. 544, 565, 89 S.Ct. 817, 831, 22 L.Ed.2d 1 (1969) (quoting testimony of Asst. Att’y Gen. Marshall). Although the scope of the section has been hotly debated, see, e.g., Dougherty County Bd. of Education v. White, 439 U.S. 32, 47-59, 99 S.Ct. 368, 376-383, 58 L.Ed.2d 269 (1978) (Powell, J., dissenting); Perkins v. Matthews, 400 U.S. 379, 399, 401-09, 91 S.Ct. 431, 442, 443-47, 27 L.Ed.2d 476 (1971) (Black, J., dissenting), successive majorities of the Supreme Court have continued to adhere to a broad reading of the statute. This is the interpretation that we are compelled to follow.

      . The courts, not the Congress have led the way in giving expanded meaning to the language of § 5, yet Congress has shown no disapproval of the consistent interpretation of the statute’s scope. Indeed, in one instance where the Supreme Court restricted the reach of the act by requiring actual proof of discriminatory intent in "vote dilution" cases, Congress amended the act to remove the intent requirement. See Voting Rights Act Amendments of 1982 § 2, 42 U.S.C. § 1973. Perhaps in the classic scheme Congress would have exerted more authority initially to delimit the boundaries of § 5 and left less work for the judiciary, but we must accept the law as it has developed. The courts and Congress have sent a clear message to allow § 5 a wide scope to combat subtle and insidious evasions of the law.

      . McCain v. Lybrand, 465 U.S. 236, —, 104 S.Ct. 1037, 1043, 79 L.Ed.2d 271 (1984).

      . South Carolina v. Katzenbach, 383 U.S. 301, 334, 86 S.Ct. 803, 821, 15 L.Ed.2d 769 (1966).

      . See Dougherty County Board of Education v. White, 439 U.S. 32, 48, 99 S.Ct. 368, 377, 58 L.Ed.2d 269 (1978) (Justice Powell, in dissent, quoting from legislative history).

      . The case also bears some kinship with the facts in Bunton v. Patterson, in the Allen, continuum of cases.