Betty Drexler v. Southwest Dubois School Corporation
504 F.2d 836
7th Cir.
1974
Check Treatment

*1 ‘relinquished received had fits valuable

right’ ‘сhanged posi- or that had his he the worse’. recovery

The Council concluded that overpayment

of the not defeat the

purpose of Title II under the Act be

against good equity For conscience. reasons, recovery overpay-

these of the

ment not waived. findings Appeals

These of the supported evi substantial Council nothing There in the testimo

dence. Hearing ny appellant any had fi Examiner ‍‌‌‌‌​​​‌‌​‌‌‌‌‌​‌‌​‌‌​‌​‌​‌‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‍that indicated he hardship requirement

nancial repay or that he he receivеd benefits Stevens, Judge, concurred changed position by way had his opinion. and filed receiving payments. The reason claimant, therefore, meet his failed to Enoch, Judge, Senior Circuit dis- recovery by showing burden opinion. sented and filed Secretary against equity and would be Morgan Finch, good conscience. 1970)

F.2d 551

Accordingly, judgment of the Dis- part, affirmed

trict Court is reversed part. remanded сase will be proceed- further

the District Court for opinion. ings not inconsistent

Betty DREXLER, Plaintiff-Appellant,

SOUTHWEST DUBOIS SCHOOL CORPO- al., Defendants-Appellees. RATION et

No. 72-1918. Appeals,

United States Court of

Seventh Circuit.

Reheard En Banc June 1974.

Decided Oct.

abstaining considering from the merits of her section 1983 action. On Febru- ary 14, 1974, unpublished order, in an panel (one judge of this court ‍‌‌‌‌​​​‌‌​‌‌‌‌‌​‌‌​‌‌​‌​‌​‌‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‍dissent- ing) affirmed that order. Pursuant plaintiff-appellant’s suggestion, appeal have reheard this en banc. We reverse. presented appeal

The рroper is whether for a federal to abstain whether a non-tenured teacher de- employment nied further because of al- legedly constitutionally reasons until the state courts are opportunity by plaintiff to determine whether the defendant school board’s ac- “arbitrary” tions can be deemed whether a state statute con- strued have been violated. Plaintiff was a non-tenured teacher employed by the school board. Her con- pursuant tract was not renewed and requested an Indiana statute she and re- ceived a statement of the reasons for Basically, her non-retention. three rea- presented: rapport sons were her sufficient; students was not a letter she superintendent sent “com- pletely unprofessional” and on bordered insubordination; and she had communi- cated to the “overt administrators feeling” teaching that her load was too heavy. then instituted the Ind., Indianapolis, Darko, Richard J. federal court action in which she seeks plaintiff-appellant. for declaratory judgment, requir- an order ing Bose, Ind., contract, Indianapolis, Lewis C. be extended new she damages, pay, attorney’s amicus curiae. back fees. complaint alleges Her amended Schneider, Huntingburg, T. Norbert deprived right her of her defendants Ind., defendants-appellees. by dismissing process substantive due plaintiff’s “in her retribution for SWYGERT, Judge, exer- Before Chief ENOCH, Judge, FAIR- cise of Senior Circuit hеr First Amendment CUMMINGS, PELL, CHILD, criticizing speech STE- free the actions VENS, TONE, SPRECHER administrators,” or, the school alterna- Judges. tively, by dismissing her “for reasons capricious,

which are Judge. SWYGERT, Chief logic.” or in without basis in fact First claim is Amendment based Plaintiff-appellant Betty Drexler appealing superintendent. a decision the district letter sent allege trine . sanctions the uncon- . . comрlaint did not escape narrowly a vio- such limited stitutionality statute or of a state ” Further, ‘special plain- circumstances.’ Zwickler v. of a state statute. lation Koota, an action not instituted had tiff Moreover, regard to this matter. courts “the use of the abstention doctrine *3 ruling upon court, The district involving rights, especially in cases civil dismiss, abstain decided to motion rights cases where First Amendment “pending determining these issues allegedly involved, not to is be encour- by law issues the state the resolution aged.” Sosbe, 169, Devlin v. 465 F.2d by plaintiff timely to the application (7th 1972). 172 Cir. thought judge Indiana.” Courts Equally important keep in mind allegation is action commonly plaintiff stated rule that a properly of Indiana an issue more nеed not exhaust state In- remedies before considered that should be filing suit, along a section since the fed question of 1983 with diana courts remedy “supplementary eral supplied is to the the reasons whether remedy.” state Ann. Monroe sufficiently comply Bums’ 365 U. 473, S. 81 28-4517, 20-6-13-1 IC Ind.Stat. § (1961); McNeese v. Board of of those Educa (1970),1 a determination since tion, 373 U.S. L. need to con- 10 еliminate the issues Ed.2d 622 There is now claims. constitutional sider doubt, though noting toas the extent to which its decision buttressed court remedy. supplementary section is a paramount 1983 interest of the State “the Hargrave, Askew v. 401 91 matters within in educational (1971) 196 Su its borders.” preme Court held that a district have, determining abstained from preliminary question we must A whether a Florida statutе is invalid un jurisdiction we have whether consider is n Equal der the Protection Clause until Technically appeal. to entertain the Florida ruled courts a chal merely but not dismissed case was lenge to the law based on the Florida pending stayed interpreted constitution. The Court argued and it could be courts Pape applying only Monroe to a аppealable. However, we not order is situation in which the state logical consider think practice not available in and viewed judgment within the a final order to be “ holding McNeese as ‘assertion of meaning and there 1291 of 28 U.S.C. § a federal claim in a federal court [need support ample precedent this conclu attempt awаit an to vindicate the not] Voyage Liquor Corp. Bon sion. Idlewild same claim in a state court.’ 373 U.S. Epstein, 8 82 (emphasis added).” at 672 401 U.S. at (1962); Moses v. n.2 L.Ed.2d 478, 91 S.Ct. at 858. The Court found Kinnear, Cir. F.2d already that the case filed in the state Sullivan, 1973); F.2d Druker v. ‍‌‌‌‌​​​‌‌​‌‌‌‌‌​‌‌​‌‌​‌​‌​‌‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‍present court did not the “same claim.” (1st 1972). 1272, 1274n.3 Cir. propriety proceed approved to the

We Second decision to abstain abstention in a district court’s section 1983 case in statutory require to initiate which there was a “substantial general proceedings. note the court proposition We and constitutional claim under New “judge-made though doc- York law” even no action Any refused 1. “. . . teacher who shall be from the trustee or board of trustees pursuant showing continuation provisiоn of contract statement reason for such written may request [section] this act . . . .” dismissal litigate “arbitrary initiated. Reid had been ac- Education, 453 F.2d tion” Board state courts either of before (2d 1971). it was these that case issues will consid- Pape is, requiring in effect, and Mc ered termined Monroe v. him to first litigate applicable Neese were becausе “same claim” “merely Such counter exhaustion is not state claims courts. neces- sary in parts asserted.” a section action. for the federal F.2d at 244. Without justified Abstention cannot be questions, further believe statutory on the basis least still correct that at there is prerequi violation either. An essential a claim to the state need site “an uncertain issue raising that same claim courts Forsenius, law.” of state Harman v. a section 1983 action. *4 (1965). 14 L.Ed.2d 50 in statute present of In the context the supra 1) question (§ 28-4517, re n. equivalent proceeding an is to abstention given quires that be to the reasons requirement exhaus of plaintiff But both defend teacher. remedies. Defendants tion of state agree ants that is now сlear that the argue proper when is general type given Drexler is interpretation a state ever court’s Still, sufficient under this statute.2 necessity might eliminate law the state argue fendants that Indiana law is “un alleged ruling upon an of a federal court giving as to effect of settled” the false dis the violation. Here constitutional they reasons for which dismissаl claim plaintiff required al to trict has allegation. plaintiff’s primary De is opportunity an Indiana low the courts of possibly fendants theorize that such the review the decision not to extend false reasons would violate the statute. general light law a contract However, the existence mere of an unlit doctrine, con derived from igated theory under which a gov stitution, arbitrary prohibits might deemed to have a cause of ac be Admittedly, Indi ernmental action. tion state court for violation aof might the defendants’ ana courts find always justi is not statute sufficient arbitrary and thus eliminate actions only fy abstention. Not must the But, need for this section 1983 action. uncertain, law be but the must be issue generalized naturе the broad and certainly in “Abstention substantial. concept governmental arbitrary of the duplication expense volves of effort many action, sec is delay.” Boz and an Reetz attendant alleged 1983 actions the constitu tion anich, might deprivations be tional be found to (1970). theory of a plain only if a violation of a statutory violation that been claim to a state tiff sup presented to us is not sufficient federal- court. Some small amount of port especially fed since the abstention, by might eliminated state friction be dependent upon in is eral claim not requirement. However, a elimi such if terpretation of the statute. nation federal-state friction which the neces- This is a cаse criterion, a should also be constitutionality sity of required his federal constitu submit if the a be avoided statute tional claim to the state courts to construe Indeed, in one state courts are allowed case instance. this first friction In one sense the statute first. of the constitutional issues raised is by mat- capricious decision in this ac caused legisla- slight no state ordering plaintiff be since ter would We tion. find that App., Corp., 281 N.E.2d 117 Ind. See Tilton School Southwest being challenged. policy plaintiffs tive Defend- In is attacked the constitutionality argue failure to ants abstain could of a new Florida statu- challenges tory financing public result in numerous method of educa- They contend tion. Because a nоn-tenured teachers. statewide statute was involving public three-judge attack, that matters schools under district particularly case, affairs local had been convened. possible. to the whenever left states conflict state-federal argument simple dispute answer to much less serious because allega- merely teacher, the сrux of this suit involves one individual violation which board, tion of a constitutional one local school and a set facts presen- Moreover, relatively unique. an issue most which is in a sec- federal court us, tation before unlike the situation before the sub- al- The fact that tion action. stantial character law attack leged legislation denial of on the Florida indicated public education set the context pendency system determinative. cannot be colloquy Florida courts. The argu- the Court and counsel at the oral decision that absten- view our apparently persuaded ment of Askew improper tion must remand litiga- pendency Court that of that considera- case thе district court for appropriate. See made abstention re- issues. Our tion of the substantive In con- 91 S.Ct. at 857. expresses opinion le- mand *5 argument trast, re- the oral of this ease gal sufficiency of or ultimate merit litigation pending vealed that there is plaintiff’s claims. which will be of Indiana courts plaintiff, to and neither remanded. benefit Reversed and gave any that us indication counsel there likelihood that was a substantial Judge (concur- STEVENS, Circuit relief would obtain ring). from an Indiana court. Hargrave, v. 401 U.S. Askew opinion per curiam in Askew demonstrates 28 L.Ed.2d place emphasis on the seems to critical to that abstention question whether “the same claim” give opportunity de- a an to state court might in the federal be asserted both which, if termine a state law claim sus- I state court. find because, adjudi- emphasis puzzling tained, somewhat obviate need to will contrary question. of I would to thrust a cate federal identity reasoning greater argue suppose similar that that Defendants increase, As- rather justifies in this case. the two claims justification ab- kew, however, decrease, favored factors two my may, it here. that Be as which are not abstention.1 stention Education, attempt in a claim some other 373 U. to vindicate 1. In v. Board of McNeese after state court. S. Berryhill, Indeed, reviewing purposes 1983 as Gibson § of L.Ed.2d in Monroe scribed be- 171-183, the difference relied on L.Ed.2d the Court rea- as a claims and federal tween the state Court said: requiring purрoses The Court abstention. if we son for defeat those “We would in a a federal claim there stated: assertion of held that attemjjt “Arguably, the District Court must an federal await Optical the Lee court.” awaited the outcome claim a state vindicate same might appeal, which a decision C o. at 1436. at injunction an need for have obviated inconsistent It would seem even more press was purposes as- But the Board that ‍‌‌‌‌​​​‌‌​‌‌‌‌‌​‌‌​‌‌​‌​‌​‌‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‍this case.18 to hold § charges against appellees ing without its await claim must sertion of federal any agreement counterpart ab- with the conclusion that has exact in Indiana improper in this case is law. stention was plaintiff’s premise dependent on my judgmеnt, improp abstention is complaint “same asserts regardless er whether is a lack there in a state claim” that be asserted identity between the court. Judge claim and the federal As claim. Swygert attempted correctly two emphasizes, assert Plaintiff this case (1) any quite federal claims: different not involve an attack on does regulatory program.2 dismissed for This she was statute namely, controversy disputed exer- reason, raising in retribution for a local is cising legal Amendment her First also the sue fact and administration; plaintiff’s school criticize the of the facts whether version simply arbi- (2) that her dismissal her entitles federal relief. mer po- trary. depend defendants’ As I understand federal claim are nоt its sition, theory any latter which way it ent the resolution of claim comparable any to a questions uncertain law.3 litigate they possibility her file situation, which want In this the mere proceeding fed- might grant to a conclusion that a state tribunal But, matter eral court. individual relief which would law, theory unnecessary pursue Jef- insufficient. for her to make Turkey Run School Consolidated fries her federal is not a sufficient 1974).. District, 492 F.2d 3-4 believe reason abstention. I argue teaching Pape understand defendants to I do not the essential Monroe plaintiff’s claim Amendment First McNeese.4 event, and, awaiting questions. that outcome Abstention therefore essen- appears ques- least avoid risk that tial tlie appellees might charges pending against incorrectly. be decided In Mc- tions would *6 emphasized Neese, trial a reversal survived Court fact Supreme judgment by any way the Alabama court’s federal was not “in entan- tiie circumstances, gled Court. Under these in a skein of state law must be un- proceed.” tangled District an abuse discretion before the federal casе can proceed (Emphasis 674, it did.” Court at 83 at 1437. In 373 U.S. S.Ct. added.) case, this, inas it was “immaterial whether 18, illegal respondents’ legal In its Askew. footnote the Court cited as a conduct or Reetz, And in matter of state law.” Ibid. noting appli 2. It is worth statewide those cases “where Court differentiated Railway cation the order the Texas questions enmeshed under attaсk in Railroad Com Commission 85, questions.” at 90 397 U.S. Pullman, 496, mission v. 312 U.S. City 789, quoting of Meridian S.Ct. fishing L.Ed. the Alaska laws 85 Co., & Bell Tel. Tel. 358 U.S. Southern regulations in Reetz v. Bozan involved 639, 640-641, 79 3 L.Ed.2d 562. ich, 90 Thorpe, 4. Orr F.2d Cir. Millage challenged in Law Rollback 1970), presented stronger case for absten made it to convene availability this case tion than does since the three-judge in each those district court appаrently contrast, cases. In it is of interest assumed, controversy and the Monroe v. Teachers Association and the School Board 492, and of Ed 5 L.Ed.2d ucation, McNeese Board policy a broader involved L. merely discharge Never one teacher. (as case), Ed.2d state action theless, Judge Wisdom, speaking impact. under attack had a local summarily Court, ab dismissed defendants’ simply: Pullman, stating argument, 3. “The law claims were raised stention plaintiffs cause ac the federal necessary have been have stated and would interpret tliree-judge seek to attack for the court to decide do not reaching at 1131. state issues before the federal Florida statutes.” 427 F.2d Judge (dis- KNOCH, Senior Circuit

senting). un For the set forth our February

published 14th, order portion quote below,* a spectfully I re ‍‌‌‌‌​​​‌‌​‌‌‌‌‌​‌‌​‌‌​‌​‌​‌‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌‍of which I my opinion, dissent. Judge decision of the District

affirmed. MALAJALIAN, Plaintiff,

Antranik Appellant, America,

UNITED STATES Appellee.

No. 74-1128. Appeals, States

United Court of

First Circuit.

Argued Sept. 1974.

Decided Oct. *7 * reasoning persuasive, argued, abstention, triet Court found this “The amicus curia statutory as do were we. there well-defined Indi- provisions, ana “Plaintiff contends that State with an rem- her amended com- edy plaint review, necessity not does attack of stаte where the state statute regulation interpretation developing state and that In- substantive law on teachers’ great importance, existing diana will Statute not avoid the federal con- question. willing recog- immense, stitutional and She is future complied fully nize that cases defendants where could resolved State argues involving Courts without state statute but determination does negative possibility argu- of federal issues. Further consti- tutional ment violation. of the amicus curia with the fact dealt “Nevertheless, appellees assert, employer as that communications independent here, virtually employee, to recover would occur yet every employment under Indiana law on issues nоt case and absent fac- resolved respect charge allegation its Courts with tual to her other communica- arbitrary capricious Superintendent was tak- was involved action contract, en and that false and sham determination to renew the purported her in here fulfillment of was whether requirements.” capricious statutory action had been taken. The Dis-