author: HASTINGS, Senior Circuit Judge. KILEY, Circuit Judge

text:
    CHOC-OLA BOTTLERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1424.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 14, 1973.
    Decided May 14, 1973.
    Claude M. Spilman, Jr., Indianapolis, Ind., for petitioner.
    Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., NLRB, Washington, D. C., for respondent.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.
   HASTINGS, Senior Circuit Judge.

This case concerns the validity of a ruling of the National Labor Relations Board on the eligibility to vote in a representation election of an employee discharged for cause minutes before the scheduled time for voting. The case arises on the petition of the employer to review and set aside a Board order that it bargain with the bargaining representative whose majority status was determined by the vote of the discharged employee. The Board has made cross-application for enforcement of its order.

The Board found that Choc-Ola Bottlers, Inc. (the Company) violated §§ 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C.A. §§ 158(a) (1) and (5), by refusing, on or about September 10, 1971, and at all times thereafter, to bargain collectively with the Retail, Wholesale and Department Store Union, AFL-CIO (the Union), which had been certified by the Board as the exclusive bargaining representative of the Company’s employees. The Board entered an appropriate cease and desist order. The Board’s order of May 22, 1972, is reported at 196 N.L.R.B. No. 162.

A brief summary of the procedural setting of this matter follows. On January 10, 1971, the Union filed a representation petition with the Board seeking certification as the exclusive bargaining representative of the Company’s employees in an appropriate unit. Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on February 19, 1971, between the hours of 4:00 and 4:30 P.M. The result of this election was that six votes were cast for the Union, six votes were cast against the Union and one ballot, that of William E. Viles, was challenged by the Company. Since the challenged vote was determinative of the election, the Board’s Regional Director conducted an administrative investigation and made a recommendation that the challenge to the ballot be sustained. This recommendation was thereafter reviewed and reversed by the Board, and the Regional Director was directed to open and count the challenged ballot and certify the results of the election. 192 N.L.R.B. No. 182 (April 27, 1971). The ballot of Viles was opened and found to be a vote for the Union, so the Union was certified by a vote of seven to six. Subsequent administrative procedures had consequences adverse to the Company. The end result was the instant matter now before our court, which has jurisdiction under 29 U.S.C.A. §§ 160 (e) and (f).

The facts are not in serious dispute. The Company is a small Indianapolis-based corporation which manufactures, bottles and distributes regionally a carbonated soft drink known as “Choc-Ola.” At the time in question the Company employed 13 people in the representation unit. Mr. Harry Normington, Sr., the inventor of the manufactured product, was president and in active charge of the business of his company. Viles was employed by the Company as an over-the-road truck driver. At 3:57 P.M. on the day of the representation election, Nor-mington discharged Viles for cause. Viles presented himself to vote when the polls opened at 4:00 P.M. His ballot was promptly challenged by the Company observer.

Viles’ discharge occurred under the following circumstances. The drivers customarily picked up their trucks at the Company’s premises and left on their delivery routes early in the morning, several hours before the Company’s management personnel arrived to begin work. It was likewise customary for the drivers to finish their routes in the early or mid-afternoon, at which time they would return their truck to the Company’s premises. On the afternoon preceding the election, the Company was informed that one of its drivers had on two occasions been seen delivering truck tires to a “truck-stop” in Galena, Ohio. Viles was the only driver employed by the Company who answered the physical description of this truck driver. He had already left work for the day. Therefore, a note was placed on his truck requesting him to report to Normington when he completed his scheduled route the following day, the day of the election.

Upon his return to the Company premises the day of the election at 3:31 P. M., Viles did not report to Normington but remained near his truck in the garage area. After two additional requests to report, Viles reported to Nor-mington at 3:50 P.M. Normington, knowing that the truck tires had been missing from the Company inventory, was not satisfied with Viles’ explanation and found reason to believe that Viles had stolen the tires from the Company, sold them and kept the money for his own use. Normington then and there discharged Viles. All of this happened before the polls were opened by the Board agent conducting the election.

The general issue for review is whether the Board properly found the Company violated §§ 8(a)(1) and (5) of the Act by refusing to bargain with the Union certified to represent its employees following a Board-conducted election. However, the key subissue is whether the Board erred in overruling the Company’s challenge to Viles’ ballot, a decision which resulted in the Board’s certifying the majority status of the Union.

The Board contends that it acted within its discretion in overruling the Company’s challenge to Viles’ ballot. In the instant ease the Board says it adhered to a long-standing Board rule that an employee is eligible to vote in a Board election if he was employed during the eligibility payroll period and on the day of the election. See Macy’s Missouri-Kansas Division v. NLRB, 8 Cir., 389 F.2d 835, 842 (1968), and a number of Board-cited cases. Since Viles satisfied both of these requirements, the Board holds he was eligible to vote. The circumstance that Viles put in a full day’s labor on a regular workday (the election day) and that his discharge came at the end of his workday and at the end of the workweek is reason enough to satisfy the Board that Viles’ eligibility to vote was not destroyed by the fact that he was discharged three minutes before the polls were to open.

The Board further argues that to accept the Company’s position would be to “fractionalize” the day of the election and would lead to administratively unworkable results. It suggests other situations where the Board has refused to fractionalize a critical day. The Board states that the fact that Viles did not have a continuing interest in the outcome of the balloting was immaterial and notes that it has uniformly held that an employee employed on the date of the election is eligible to vote despite an intention to quit after the election.

The Company counters with the proposition that since the basic question is whether Viles was eligible to vote, this determination must first be made by reference to the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq. Section 8(a)(5), 29 U.S.C.A. § 158 (a)(5), provides that it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section [9(a)].” Section 9(a), 29 U.S.C.A. § 159(a), provides that the bargaining representative must be chosen “by the majority of the employees in a unit appropriate for such purposes.” Here is an explicit recognition of the right to majority rule by those who are employees at the time they vote.

The Company notes that in the cases cited by the Board in support of its general standard that a person is eligible to vote if he is an employee on the eligibility date and on the election date there has never been any further question whether the voter was employed at the time he voted. It says that we are faced with a case of first impression in considering the question whether an employee discharged for cause on the day of a representation election is eligible, later that day, to cast his vote for a bargaining representative.

We agree with the Company that the question of Viles’ eligibility to vote in the election is a pure question of law, dependent entirely on whether a person in Viles’ situation can be said to be an employee within the meaning of the Act. Therefore, there is no occasion for the Board to exercise its discretion in this matter. We need not dwell on established law recognizing that the Board has wide discretion in supervising the election process' and in resolving questions arising during the course of representation proceedings. See, e. g., NLRB v. A. J. Tower Co., 329 U.S. 324, 330-331, 67 S.Ct. 324, 91 L.Ed. 322 (1946); National Van Lines, Inc. v. NLRB, 7 Cir., 273 F.2d 402, 407 (1960).

Viles was discharged for cause prior to voting. His employment relationship had not been terminated by reason of a current labor dispute or an unfair labor practice. He was no longer sufficiently concerned with the terms and conditions of employment in the unit to warrant his participation in the representation election. He no longer had a community of interest with other employees in the unit. He no longer had any reasonable expectation of reemployment. When Viles was discharged for cause, he was removed from the payroll, would not perform future services, would not be receiving wages except for past services and was not restricted as to other employment.

All these factors are economic and policy considerations placing Viles well outside the ambit of the term “employee” as it is used in the Act. See Allied Chemical Workers, Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 168, 92 S.Ct. 383, 392, 30 L.Ed.2d 341 (1971). As Mr. Justice Brennan, speaking for six of the seven members of the Court, said in the course of holding that retirees are not employees under the Act: “No decision under the Act is cited, and none to our knowledge exists, in which an individual who has ceased work without expectation of further employment has been held to be an ‘employee.’ ” Id. Furthermore, the Court held that “the term ‘employee’ is not to be stretched beyond its plain meaning embracing only those who work for another for hire.” Id. at 166, 92 S.Ct. at 391. There can be little doubt that Viles did not fit this mold at the time he cast his challenged ballot. His relationship with the Company had by that time been definitely and permanently severed. The Act gives no warrant to the Board’s effort to transform Viles, who was, according to the “plain meaning” of words, a “former employee,” into a full-fledged “employee” with the right to determine the representation rights of his 12 former colleagues. In a ease like the present one, it is apparent that the discharged employee's vote will be directed more toward a result that seems to him in the employer’s worst interest than to one in his former colleagues’ best interests.

This leaves only the Board’s argument that the result we reach will be administratively unworkable because it will somehow “fractionalize” the election day. The unworkability of one option may well justify an agency in adopting the other of two options when the governing statute permits the adoption of either. But, as we have held, the approach for which the Board contends is not open to it. Even if the result proves inconvenient to administer, the Board must perform the duties Congress has imposed upon it.

We do not, however, concede that this result will prove unworkable. The Board has long enforced the rule that a voter is eligible to cast a ballot in a representation election if he is an employee both on the day of the election and during the eligibility payroll period. In addition to these requirements, we now recognize the requirement, grounded in the Act, that he still be an employee at the time he attempts to vote. This holding is entirely consistent with the holdings of all the cases cited by the Board and would not have changed the result in a single one of them.

For the foregoing reasons, we conclude that Viles’ vote should not have been counted, that the Union should not have been certified as bargaining representative and that the Company was under no duty to bargain collectively with the Union. Accordingly, we grant the Company’s petition to review, set aside the Board’s order and decline to enforce it.

Review granted, order set aside and enforcement denied.

KILEY, Circuit Judge

(dissenting).

I respectfully dissent.

I agree that the “key sub-issue” is whether the Board erred in overruling the Company’s challenge to Viles’ ballot.

In my opinion “the matter of voter eligibility rests primarily with the Board and ... in its expertise and experience in handling labor-management relations, it should decide this issue, subject, of course, to right of review.” Macy’s Missouri-Kansas Division v. NLRB, 389 F.2d 835, 846 (8th Cir. 1968). I think in reviewing the Board’s decision on Viles’ eligibility to vote we are limited to deciding whether the Board abused its discretion.

The majority opinion rests upon rules distilled from several cases: Viles was no longer sufficiently concerned with the unit’s employment conditions under Shoreline Enterprises of America, Inc. v. NLRB, 262 F.2d 933, 944 (5th Cir. 1959); had no community of interest under NLRB v. Belcher Towing Co., 284 F.2d 118, 121 (5th Cir. 1960); and no longer had any reasonable expectation of reemployment under Whiting Corp. v. NLRB, 200 F.2d 43, 45 (7th Cir. 1952), and Lake City Foundry Co. v. NLRB, 432 F.2d 1162, 1168-1169 (7th Cir. 1970).

None of those cases concerned an employee who was discharged for cause after he finished his work the day of the election. In Shoreline the question of eligibility depended on whether the challenged votes were in the unit involved. In Belcher the question was whether a parttime employee had sufficient continuity to gain a community of interest.

In Whiting the challenged voter quit two weeks before the election because he was unable physically to do the work, and said he would not return. This court set aside the Board’s finding of eligibility as not supported by adequate proof. In Lake City this court decided that the record did not support the Board’s finding that Kent was an employee when demand for recognition by a union was made because he had — a half hour prior to the demand — been told of the company decision to discharge him, and his final check had been prepared. This court, on authority of Whiting, said Kent could not have had any reasonable expectation of further employment.

Viles was discharged election day after completing his work and, presumably, being paid, and only three minutes before the voting began. The day before the election the Company had “strong suspicion” that Viles stole Company tires and sold them for his own profit. Instead of firing Viles on the day he received that information, the president, Normington, left a note on Viles’ truck to report after he had “completed his scheduled route” the next day, the day of the election. This court’s opinion states no good reason why Viles could not have been fired before election day. The Company must have known where he lived and could have communicated with him. The Company seeks to excuse its failure to discharge him the morning of election day on the ground that drivers left the premises several hours before management personnel arrived. This is unpersuasive. It is true that Viles did not report after he completed his work election day, as the note directed him to do. But he was on the premises after 3:31 p. m. and was not discharged until 3:57 p. m. He was requested to report twice after 3:31 p. m. but did not do so until 3:50 p. m.

In Macy’s the Eighth Circuit considered the question of voting rights of strikers and their permanent replacements employed after the strike began. The court thought both were entitled to vote since both had a legitimate interest in their jobs, even though the strikers were not employed on the day of election nor the replacements employed on the initial eligibility date. And in NLRB v. General Tube Co., 331 F.2d 751, 752 (6th Cir. 1964), the Sixth Circuit found “no standard . . . which as a matter of law deprives the . . . Board of power to declare an employee eligible to vote where she was on the eligible list and worked the full day of the election,” even though she had announced the morning of the election her intention to quit and had been paid for the day ending at 4:01 p. m., at which time she stood in line to vote. The court discussed this court’s Whiting decision denying employee status by reference to the Board’s then (1964) standard of “reasonable expectation of reemployment within a reasonable time in the future.” The Sixth Circuit observed that the rationale for the standard seemed to be “simply that no more objective standard was available.” General Tube 331 F.2d at 753. The court stated that its research disclosed no instance where the Whiting standard was applied where the employee worked for the full day of election.

The general rule is that to be eligible to vote in an election one must be employed during the current payroll period and on the day of election. Macy’s, 389 F.2d at 842. In Macy’s the question was whether three new employees not employed during the payroll period were eligible to vote. The court noted the “difficult and perplexing chore” of determining voting rights in connection with an economic strike. The court said that both the strikers and their replacements had an interest in their jobs and in the outcome of the election.

There is of course no question of eligibility of economic strikers or their replacements here. The Macy’s decision, however, discusses, in considerable detail, the tortuous path Board decisions and Congressional policy have taken in resolving voter eligibility, pp. 843-846. The Macy’s decision shows the lack of rigidity in applicable standards of eligibility to the stage where, despite the general rule, economic strikers with no expectation of reemployment are eligible to vote and the permanent replacements for them are also eligible. Thus the general rule does not always hold with respect to the eligible payroll period or to the day of election. Viles, however, satisfied both parts of the general rule.

It seems therefore that neither employment on the day of election nor on the eligibility date has been rigidly required for employee eligibility to vote. Presumably the Board in deciding Viles’ eligibility was well acquainted with the variation in applicable standards and with the history of voter eligibility showing a lack of rigidity in applying the rules relied upon by the majority. The Board’s expertise has been historically relied upon in adjusting application of the eligibility rules to the needs of varied factual situations. In the case before us I see no abuse of discretion in the Board’s finding that Viles was eligible to vote even though he could not expect to be reemployed by the Company, since he cannot be said to have no concern with employment conditions at the Company or to have no interest in the outcome of the election, and he had worked and was paid for a full day on election day.

I would enforce the Board’s order.

      . The appropriate unit was stipulated: “All production and maintenance employees of the Employer at its Indianapolis, Indiana plant including truck-drivers; * *

      . The Stipulation, provided, inter alia:

      “Said election shall be held in accordance with the National Labor Relations Act, the Board’s Rules and Regulations, and, the applicable procedures and policies of the Board.”
      The Stipulation defined “Eligible Voters,” in relevant part to be: “ * * * those employees included within the Unit described below, who were employed during the payroll period * * * [ending Wednesday, February 3, 1971], including employees who did not work during said payroll period because they were ill or on vacation or temporarily laid off, * * * but excluding any employees who have since quit or been discharged for cause * * * and who have not been rehired or reinstated prior to the date of the election * *

      . These facts are consistent with those found by tire Regional Director, and the Board here concedes that Viles was discharged for cause. According to an affidavit of Normington, Viles admitted a ■week after his discharge “that the 3 tires involved were the property of Choc-Ola, and that he had taken them from the company without authorization or payment.”

      . Greenspan Engraving Corp., 137 N.L.R.B. 1308, 1309 (1962); Gulf States Asphalt Co., 106 N.L.R.B. 1212, 1214 (1953); Reade Mfg. Co., 100 N.L.R.B. 87, 89 (1952); Bill Heath, Inc., 89 N.L.R.B. 1555, 1556 (1950).

      . Plymouth Towing Co., 178 N.L.R.B. 651 (1969); West Texas Equip. Co., 142 N.L.R.B. 1358, 1359-1360 (1963) ; Deluxe Metal Furniture Co., 121 N.L.R.B. 995, 999 (1958). The Board also cites NLRB v. General Tube Co., 6 Cir., 331 F.2d 751 (1964), and provisions for computing time in various rules of procedure.

      . Personal Products Corp., 114 N.L.R.B. 959, 961 (1955) ; Whiting Corp., 99 N.L.R.B. 117, 122 (1952), rev’d on other grounds, 7 Cir., 200 F.2d 43 (1952). But see Fairview Hosp., 174 N.L.R.B. 924, 928 (1969), enf’d, 7 Cir., No. 18151 (October 20, 1970), where the Board ruled ineligible an employee whose discharge was effected on the day of the election. The employee’s timecard was pulled before he reported for work.

      . Proscribed by §§ 2(3) and 9(a), 29 U.S.C.A. §§ 152(3) and 159(a).

      . Shoreline Enterprises of America, Inc. v. NLRB, 5 Cir., 262 F.2d 933, 944 (1959).

      . NLRB v. Belcher Towing Co., 5 Cir., 284 F.2d 118, 121 (1960).

      . Whiting Corp. v. NLRB, 7 Cir., 200 F.2d 43, 45 (1952), cited in note 6, supra. See also Lake City Foundry Co. v. NLRB, 7 Cir., 432 F.2d 1162, 1169 (1970).

      . See cases cited in note 4, supra.

      . See cases cited in notes 5 & 6, supra.

      . There is no argument made that Viles’ misconduct forfeited his voting right, if he was otherwise eligible.


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOUSTON NATURAL GAS CORP., Respondent.
    No. 72-3460
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 18, 1973.
    Rehearing and Rehearing, En Banc Denied July 13, 1973.

      Marcel Mallet-Prevost, Asst. Gen. . Counsel, N. L. R. B., Washington, D. C., Clifford Potter, Director, Region 23, N. L. R. B., Houston, Tex., for petitioner.
    Robert S. Bambace, Neil Martin, Houston, Tex., for respondent.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   AINSWORTH, Circuit Judge:

On August 21, 1972, the National Labor Relations Board found that Houston Natural Gas Corporation engaged in an unfair labor practice in violation of sections 8(a)(1) and (5) of the National Labor Relations Act of 1947, 29 U.S.C. §§ 158(a)(1) and (5) (1971), by refusing to bargain collectively with the International Union of Operating Engineers, Local No. 347, AFL-CIO, as the exclusive bargaining representative for “operators A, B and C and apprentice operators, including maintenance operators and maintenance operator apprentices.” Upon petition of the NLRB pursuant to section 10(e) of the Act, 29 U.S.C. § 160(e) (1971), we grant enforcement of the order inter alia compelling the company to bargain collectively with the union.

On the initial question regarding the appropriate bargaining unit, section 10(e) limits our factual review to determine whether the Board’s conclusions are supported by substantial evidence on the record considered as a whole. See also Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). Then we must determine whether the Board’s application of a statutory term has a reasonable basis in law. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944). This limited scope of review is justified, because as the Supreme Court said in National Labor Relations Board v. Erie Resistor Corporation, 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963), “we must recognize the Board’s special function of applying the general provisions of the Act to the complexities of industrial life.” Houston Natural Gas Corporation contends that operators A are “supervisors” within the meaning of section 2(11), 29 U.S.C. § 152(11) (1971), and, therefore, should be excluded from the bargaining unit under sections 2(3) and 7, 29 U.S.C. §§ 152(3), 157 (1971), which limit a bargaining unit to employees who are not supervisory personnel. After noting that lead operators have no authority to hire or discharge employees but can recommend employees be given raises or promotions, the Acting Regional Director who initially handled the case stated in his decision:

Although the operators A may to some extent direct the work of other employees and undoubtedly are responsible for the operation of complex machinery and equipment when they are in charge of a shift, it is apparent that their relationship to other employees is more that of highly skilled employees to ones with less skill, and that whatever control they exercise derives from their greater skill, experience and responsibility. Accordingly, based on the foregoing, and the entire record, I find that operators A are not supervisors, and include them in the unit herein found appropriate.

The NLRB denied review for the reason that the company raised no substantial issues, and we find this decision under section 9(b), 26 U.S.C. § 159(b), is supported by substantial evidence and has a reasonable basis in law.

The company at another of its plants entered into a collective bargaining agreement covering a unit which includes operators A. Under these circumstances, we do not believe routine and limited control over employees makes them supervisors. See Ross Porta-Plant, Inc. v. National Labor Relations Board, 5 Cir., 1968, 404 F.2d 1180; National Labor Relations Board v. Security Guard Serv., Inc., 5 Cir., 1967, 384 F.2d 143. See also National Labor Relations Board v. American Oil Co., 7 Cir., 1967, 387 F.2d 786, cert. denied, 391 U.S. 906, 88 S.Ct. 1056, 20 L.Ed.2d 420 (1968); Northern Virginia Steel Corp. v. National Labor Relations Board, 4 Cir., 1962, 300 F.2d 168, 170-172; International Union of United Brewery v. National Labor Relations Board, 1961, 111 U.S.App.D.C. 383, 298 F.2d 297, 302-303, cert. denied, 369 U.S. 843, 82 S.Ct. 875, 7 L.Ed.2d 847 (1962); National Labor Relations Board v. Swift & Co., 9 Cir. 1957, 240 F.2d 65.

Following the bargaining unit’s election which resulted in an affirmative vote for the union, the company filed several objections to the election procedure. On November 23, 1971, the Regional Director sent a letter to the company’s counsel advising him:

[Ujnder Board policy and well-established ease law, the burden is upon you, as the objecting party, to furnish evidence to prove a prima facie case in support of your objections. Therefore, unless said evidence is submitted forthwith (within 5 working days from receipt of this letter), the objections will be overruled. Generally speaking, and as a minimum, this should include a list of the witnesses, their addresses and telephone numbers, and a brief description of the testimony of each. In this regard, you should not “piecemeal” the submission of evidence but should disclose promptly all the evidence in support of your objections.

The post office certification indicates that the letter was received by the law firm on November 24, 1971. The Regional Director waited until December 3, 1971 without any response from counsel. Then the Director certified the union as the bargaining representative and overruled the company’s objections, because the company had failed to support its objections. The company petitioned for review, which the Board denied. Counsel presented no adequate reason why he or at least some other attorney in his office did not respond within the time limit, so we believe the Board’s disposition of the case was justified in order to effectuate the implicit congressional purpose of expeditiously resolving questions preliminary to the establishment of the bargaining relationship. See National Labor Relations Board v. Douglas County Electric Membership Corporation, 5 Cir., 1966, 358 F.2d 125, 129; National Labor Relations Board v. O. K. Van Storage, Inc., 5 Cir., 1961, 297 F.2d 74, 76.

Finally, the Board’s grant of summary judgment in the unfair labor practice proceeding was justified. The Board need not relitigate issues previously considered during the representation proceeding. See Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 158, 162, 61 S.Ct. 908, 915, 917, 85 L.Ed. 1251 (1941). Although the company presented what it termed new evidence as an excuse for another hearing, the Board acted within its discretion in refusing to hear the evidence, see Magnesium Casting Co. v. National Labor Relations Board, 401 U.S. 137, 139-140, 91 S.Ct. 599, 600, 27 L.Ed.2d 735 (1971), because, as the Board pointed out in its opinion, the company “made no showing that the proffered evidence could not have been produced in the underlying representation proceeding.”

Enforced.

      . There is no change of policy involved in this ease which would require the Board to exercise rule-making procedures, such as were ordered in Bell Aerospace Co. v. National Labor Relations Board, 2 Cir., 1973, 475 F.2d 485.


author: OAKES, Circuit Judge:

text:
    Henry J. MODREY, Plaintiff-Appellee, v. AMERICAN GAGE & MACHINE COMPANY, Defendant-Appellant.
    No. 282, Docket 72-1534.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 13, 1973.
    Decided May 1, 1973.
    Charles F. Pigott, Jr., Chicago, 111. (Robert O. Mansell, Chicago, 111., and Henry W. Lauterstein, New York City, of counsel), for defendant-appellant.
    Charles Marks, New York City (Louis J. Wunder, New York City, of counsel), for plaintiff-appellee.
    Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge.

       Of the United States Court of Claims, sitting by designation.

   OAKES, Circuit Judge:

This appeal is from a summary judgment granted to a patent licensor against his licensee in a suit for the second payment allegedly due under the license agreement. That license agreement has now been terminated. Out of the usual maze of claims, counterclaims, and cross claims which patent litigation so frequently entails emerges one central question. The question is whether the district court was correct in concluding that no triable issue of fact is raised by appellant’s contention that under the terms of the license agreement, which was executed before the patent itself was granted, the patent claims ultimately granted to the appellee-licensor did not contain “significant coverage” of the licensed device. The device is an automatic dispenser of magnetizable items such as screws, pins, rivets and the like. For reasons that will appear below, we believe that the district court was incorrect : a triable issue of fact does appear. Accordingly the summary judgment must be reversed and the cause remanded. The decision of the district court is reported at 339 F.Supp. 1213.

Appellee Modrey, an inventor, and one Steinmeyer (from whom Modrey took an assignment) applied on July 30, 1966, for the patent now at issue. The invention has some reference in the trade as “Pintrex” or as a “Pintrex” machine or as a part of a “Pintrex” system. After filing the application Modrey entered into a license agreement with C.E.M. Company, a manufacturer, in no way related to the appellant, of “spring pins,” which are simply small, straight, cylindrical rods. Subsequently Modrey entered also into negotiations with Size Control Company (hereinafter “Size Control”), a division of the appellant, concerning a further license to use and exploit the “Pintrex’.’ device.

These negotiations were essentially in three stages, and culminated in the license agreement now in issue. The first stage established, among other things, that Size Control would pay Modrey two installments of $15,000 each, one on the signing of the license, the second upon the issuance of a patent, although the terms of the patent grant were not established at this stage. The invention referred to was described in the application as including the following general features: a frame provided with a bin or receptacle containing a quantity of the items to be dispensed, such as pins or screws; a rotary conveyor, consisting of either a disc or a drum, supported by the frame and dipping into the bin or receptacle; a number of elongated magnets so affixed to the disc (it is unnecessary for present purposes to refer to the drum) as to attract to its surface the items to be dispensed; and a passageway or chute so aligned with the magnets that upon rotation of the disc the items would be brought one by one into the passageway or chute whence they could be dispensed in the given manufacturing or packaging operation. The disc was referred to in the negotiations and will be referred to in this opinion as a “magnetic feeder disc.”

In the second stage of negotiations Size Control took the position that the license agreement should be modified so as to make the payment of the second installment of $15,000 (for which Mod-rey instituted this suit) conditioned not upon the grant of any patent under the application but only upon the grant of a patent containing the first claim thereof —Claim 1 — as it then existed. Claim 1 rather broadly referred to a conveyor having magnetic elements spaced apart in the direction of travel with the conveyor arranged to pass for part of its travel through a supply of the items to be dispensed, and a conventional discharge chute along the path of the magnetic elements. Because Modrey pointed out that Claim 1 was quite broad and that the Patent Office often requires the language of a broad claim to be narrowed in scope, he refused to agree to Size Control’s proposal.

The parties compromised in what we term the third stage of negotiations, and payment of the second installment by Size Control was conditioned upon the grant of claim(s) containing “significant coverage of the magnetic feed disc as shown in Figs. 1 and 2.” It is of this stuff that commercial law suits are so often made; a compromise to reach agreement, leaving undefined except ultimately by the court the specifications of the compromise — the word might as well have been the much overworked “substantial.” It is in connection with just such ambiguous terms that, as Professor Corbin reminds us, see 3 A. Corbin, Contracts § 542 (1960), proof of surrounding circumstances and the use of other extrinsic aids to interpretation are so important in reaching a result that in the end is after all at best, perhaps, an informed guess based upon subsequent rationalization.

At this point of negotiations, Modrey executed the license agreement, on June 19, 1968. The agreement was also executed by Size Control, on July 8, 1968, and it paid the first installment of $15,000 to Modrey as required. Meanwhile, however, the patent office had, on July 1, 1968, issued its first Action on the application, rejecting Modrey’s Claims 1-15 among others, including the broad claims relative to the “magnetic feeder disc” shown in Figures 1 and 2; the rejection was under 35 U.S.C. § 102, on the basis that the claims were anticipated by the prior art, specifically Patent No. 2,836,947 and Patent No. 3,065,841. Each of these patents related to a selection and feeder device (or dispenser) using apparently a disc or drum with imbedded magnets to attract objects such as bottle caps from a bin or receptacle and to feed them into a chute. We say “apparently” because these patents are not part of the formal record, although they have been furnished to us gratuitously by the appellant in a special appendix.

Modrey did not advise Size Control of the action by the Patent Office, but so narrowed his Claim 1 as hopefully to avoid the problem encountered. Whether or not the narrowing of the claim rendered the “coverage” of the magnetic feeder disc no longer “significant” is the question of law we must determine preliminarily. If we decide that there are genuine issues of material fact raised in appellant’s affidavits on this point then we must remand to the district court for a taking of evidence. Fed.R.Civ.P. 56(e); see First National Bank v. Cities Service Co., 391 U.S. 253, 288-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Dol-gow v. Anderson, 438 F.2d 825, 827 (2d Cir. 1971).

Crucial to decision on the preliminary question of law is the way in which Claim 1 and accordingly its dependent claims were narrowed to obtain the patent. What had been referred to in the application as “magnetic elements secured to said conveyor spaced apart in the direction of travel” was amended to read “magnetic elements secured to said conveyor lengthwise spaced apart and oriented generally north-south in the direction of travel thereof” (emphasis supplied). The case turns on whether a magnetic feeder disc patent, limited in its claims to one in which the magnetic elements are oriented generally north-south, has genuine significance or, in the words of the license, “significant coverage.” If it is immaterial in which direction the magnetic elements are “oriented,” then obviously the coverage is insignificant; indeed, there may well be anticipation by the prior art. But if the orientation of the magnetic elements of the disc is material, as, for example, in some way to aid alignment or passage into the dispensing chute, then the ap-pellee really has something, a patent which significantly covers the original claim. It is precisely on this point that we believe there is a genuine issue of material fact.

The affidavit of Edward Peonski, an engineer but the president of and chief negotiator for Airtronies, the Size Control division wanting to use the Pintrex, states that it is “wholly unnecessary to orient the magnets generally north-south in the direction of travel thereof” and that the “desired orientation of the items to be dispensed could readily be accomplished by mechanical guide means and the like independent of the magnetic elements.” Indeed, Modrey’s own patent application indicates as much, because its Figures 12 and 13 specifically show the magnetic elements aligned at about a 45-degree angle, thus permitting a headed screw to be dispensed in the usual fashion through the use of a mechanical guide or guides. (No claim is made for the mechanical guides.) Beyond this the specifications of the Modrey patent point toward such an angular orientation with reference to the precise use contemplated by Size Control, viz., for dispensing headed screws, in saying:

As is readily evident from an analysis of the previously described figures, the selectors as shown in these figures are not capable of differentiating whether one or the other end of an item faces forwardly when it passes through a gate. To effect such directional differentiation, magnetic pads 45 of the kind previously described are disposed at an angle to the circumferential direction rather than aligned with the same as is shown in all previously illustrated embodiments. (Emphasis supplied.)

The district court handled this question of “significance” of “north-south orientation” by saying:

The main difference between the coverage of the claims of the patent and those of the application is the limitation imposed on the arrangement of the magnetic elements — “North-South in the direction of travel thereof”. The Agreement did not provide that the term “significant coverage” was meant to cover defendant's proposed machine. Therefore, the fact that the claims of the patent would not protect its proposed machine from competition will not be considered in determining the intent of the parties as embodied in the Agreement. Defendant’s counsel studied the patent application before entering into the Agreement and by letter of June 19, 1968 plaintiff warned defendant that Claim 1 was very broad and might not be allowed. Defendant could have required a more detailed definition of “significant coverage” in the Agreement, but not having done so, the court will not read one in. The words “significant coverage” were put in at the request of Size Control Company and for its benefit. Consequently, if there is any ambiguity, it should be strictly construed against defendant.

339 F.Supp. at 1217 (citations omitted).

We think, however, that it was not a question whether appellant’s “proposed machine” was protected from competition, but whether coverage of a magnetic feeder device with north-south orientation was significant. If a magnetic device with the aid of non-patentable mechanical guides works as well with angular orientation of the magnets as with north-south orientation, then the coverage is really unimportant as we view it. Anyone using magnets on a feeder disc and mechanical guides could compete successfully with the claimed device, not just with appellant’s “proposed machine.” In saying this, however, we do not mean to invade the district court’s province, for it is possible that evidence will disclose that with a north-south orientation, because that is “the direction of strongest magnetic flux,” 339 F.Supp. at 1216, the feeder disc would work more efficiently in some way that does not appear to us. This, it seems to us, is the principal question of factual significance for resolution below; if answered in the negative, it would seem that Modrey would not have met the contractual requirements.

Our highlighting the question of significant coverage rather anticipates our rulings in reference to the plaintiff-ap-pellee’s claims of estoppel or waiver by appellant’s promotional and sales efforts in connection with the “Pintrex” device and failure to object to the coverage of the patent granted, even though frequently reminded of appellee’s $15,000 claim, until several months after the issuing of the patent. We hold that there was no estoppel as a matter of law since it appears that Size Control had not been advised by Modrey of the original Patent Office action rejecting the application and the steps taken to amend it accordingly. On remand the factual basis on which appellant relied in marketing the “Pintrex” will more fully appear and the issue of estoppel can be dealt with accordingly.

We have already said, supra note 4, that appellant may raise the issue of invalidity on remand with district court consent. Appellant also urges illegality because the license agreement permitted royalties to accrue after the patent in question had expired. Brulotte v. Thys Co., 379 U.S. 29, 30, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964), however, held that only as concerns after accrued royalties is an agreement illegal, and that such later accruing royalties are uncollectable. But this does not affect the appellee’s claim to the royalty payment here involved, one due long before expiration of the patent. See also Atlas-Pacific Engineering Co. v. Geo. W. Ashlock Co., 339 F.2d 288, 289 n. 1 (9th Cir. 1964).

We reverse the judgment below and remand for trial in accordance with this opinion.

      . Except in Figures 1 and 2 in the application for a patent, a guide or series of guides also is shown; such a guide is described as having the purpose better to align the items on the disc for passageway through the dispensing chute.

      . The first claim as originally submitted was for the following:
      1. A device for successively and singly dispensing discrete magnetizable items, said device comprising in combination :
      an endless non-magnetic conveyor mounted for travel along a predetermined path;
      magnetic elements secured to said conveyor spaced apart in the direction of travel thereof, said conveyor being arranged to pass for part of its travel through a supply of the items to be dispensed for attracting one or several of said items by the magnetic elements as the same pass through said supply and for carrying along the attracted items in random positions and movable in reference to the magnetic elements; and
      a stationary selector means including a passage opening having an outline approximately corresponding to the outline of the items to permit passage of a single item only and in a predetermined position thereof in reference to said passage opening, said selector means being disposed posterior of the location of the supply and across the path of the magnetic elements whereby an at least partial engagement of an item on any one of the magnetic elements with said opening in the selector means causes the engaged item to move on its magnetic element into a position oriented for passage of said item through said opening and to be pulled through the opening by the continued movement of the respective magnetic element while any other items carried on the same magnetic element are stripped therefrom at the selector means.
      Each of the claims numbered 2, 4, 14, 20 and 21 — all ultimately granted — is dependent upon Claim 1 since it relates to “A device according to Claim 1.”

      . Modrey had worked out an agreement with C.E.M. Company whereby it consented, since it was ,primarily interested only in spring pins, to use of the “Pin-trex” by Size Control for certain types of cylindrical pins, pin rollers which are headless nails, nails of any type, taper-pins, cotter pins, rivet eyes, eyelets, washers and spacers.

      . Appellant contends that the patent in suit is invalid because Patent No. 2,836,947 contained the same north-south alignment. This contention was not raised or passed on below and we also do not pass on it. Because a remand and trial are required to dispose of other contested issues of material fact, however, we note that appellant may, with the district court’s consent, cf. Fed.R.Civ.P. 15(a), amend its plead - ings to raise the issue of invalidity then. Cf. Lear, Inc. v. Adkins, 395 U.S. 653, 663-664, 89 S.Ct. 1902, 1908, 23 L.Ed.2d 610 (1969), quoting with approval Pope Mfg. Co. v. Gormully, 144 U.S. 224, 234, 12 S.Ct. 632, 36 L.Ed. 414 (1892). (“It is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly . . . .”)


author: CHOY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Douglas Alan WILSON, Defendant-Appellant.
    No. 72-2199.
    United States Court of Appeals, Ninth Circuit.
    April 30, 1973.

      Martha Goldin, Atty. (argued), Alan Saltzman, Saltzman & Goldin, Hollywood, Cal., for defendant-appellant.
    Dale H. Thayer, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before MERRILL and CHOY, Circuit Judges, and ENRIGHT, District Judge.

       The Honorable William B. Enright, United States District Judge for the Southern District of California, sitting by designation.

   CHOY, Circuit Judge:

Douglas Alan Wilson was convicted after a nonjury trial of refusal to submit to induction into the armed forces in violation of 50 U.S.C. App. § 462(a). He was sentenced to three years in the custody of the Attorney General. Wilson raises a number of challenges to his conviction, but we find only one of merit. We reverse.

FACTS

Wilson registered for the draft in 1968 and was classified I-A on January 6, 1970. That same month Wilson was hospitalized at the Memorial Hospital of Glendale where, because of an acute narcotics overdose and subsequent respiratory failure, a tracheotomy was performed. On March 11, 1970, Wilson was given a pre-induction physical examination at the Armed Forces Entrance Examining Station (AFEES). He claimed to have a narcotic habit which had resulted in hospitalization and accordingly was scheduled for a psychiatric evaluation. The examining psychiatrist found no neuropsychiatric disorder apparent at that time, noting that Wilson had not documented his claim as a heroin addict. Wilson was found acceptable for induction by AFEES.

Wilson was ordered to report for induction on June 9, 1970. After obtaining a postponement of his induction to present a conscientious objector claim, Wilson had his place of induction transferred to New Orleans but he failed to report. Some months later, Wilson contacted his local board and filled out a current information questionnaire. He was ordered to report for induction on April 20, 1971 but again did not. He was subsequently ordered to report on June 9, 1971.

Wilson sent his local board copies of the 1970 report from Memorial Hospital of Glendale and a confidential report from Woodoaks Therapy Center. The latter report contained an evaluation by two doctors that Wilson was a severely disturbed young man dependent upon a number of narcotics and dangerous drugs, including heroin for over three years. The primary diagnosis was schizophrenia and secondary was drug dependence. Wilson’s local board informed him that this information would be forwarded to AFEES where he was to report for another physical examination prior to induction.

Wilson was given a complete physical examination at AFEES on June 9, 1971. He was referred to the civilian psychiatrist on duty, Dr. Higginbotham, for psychiatric evaluation. The stated reason was the previous neuropsychiatric consultation. He noted Wilson’s history of drug abuse and found toxic psychotic symptoms. He concluded that the history was within normal limits and that Wilson was not incapacitated from a neuropsychiatric viewpoint. Higgin-botham profiled Wilson as “SI,” an ex-aminee who met the current psychiatric standards of the military service. These findings were sent to the medical officer, Captain Watson, who found Wilson qualified for induction Wilson then refused to submit.

DISCUSSION

The scope of judicial review permitted to this court is the narrowest known to law. United States v. Ervin, 464 F.2d 1021 (9th Cir. 1972). We must determine whether there is a “basis in fact” for the finding that Wilson was qualified for induction. McGee v. United States, 402 U.S. 479, 486, 91 S.Ct. 1565, 28 L.Ed.2d 711 (1971); Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Vasilj v. United States, 425 F.2d 1134, 1137 (9th Cir. 1970). We are limited to Wilson’s Selective Service File in our inquiry, United States v. Lloyd, 431 F.2d 160, 166 (9th Cir. 1970), cert. denied 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971), and cannot search the record to determine whether AFEES’s finding is supported by substantial evidence. United States v. Wilson, 473 F.2d 297 (9th Cir. 1973). Wilson must affirmatively demonstrate the invalidity of AFEES’s action. United States v. Hulphers, 421 F.2d 1291, 1292 (9th Cir. 1969).

AFEES determines the medical acceptability of a registrant, United States v. Miller, 455 F.2d 358, 360 (9th Cir. 1970), and federal courts must be particularly cautious in reviewing basis in fact questions of a medical nature. See United States v. Sowul, 447 F.2d 1103, 1105 (9th Cir. 1971). But if the record indicates arbitrary action by AFEES or a deficiency in prescribed procedures that results in prejudice to the registrant, this court can take corrective action. United States v. Shunk, 438 F.2d 1204 (9th Cir. 1971); United States v. Black, 456 F.2d 1297, 1298 (9th Cir. 1972); cf. United States v. Beckett, 457 F.2d 785 (9th Cir. 1972). We choose to do so in this case. There was no basis in fact for AFEES’s finding that Wilson met current psychiatric standards of the military or that he was qualified for induction.

The government concedes that the examining psychiatrist, Dr. Higginbotham, was unaware of medical standards controlling the acceptability of registrants and argues that the doctor made no determination of Wilson’s acceptability. Yet Wilson’s Selective Service File indicates that Dr. Higginbotham recorded his finding in shorthand on a consultation sheet as “SI.” This translates into a finding that the examinee meets current psychiatric standards for military service. Therefore, Wilson was found qualified for service under standards of which the examining physician was totally unaware. This arbitrary action deprived Wilson of an opportunity for medical disqualification. United States v. Beckett, supra.

The government argues that despite this deficiency Wilson attacks the wrong doctor on this appeal since the medical officer, Captain Watson, reviewed the psychiatric evaluation and was aware of controlling regulations. We think United States v. Verhagen, 341 F.Supp. 637 (E.D.Wis.1972), is instructive and cannot be distinguished from the present case. There an orthopedic specialist examined Verhagen and found him “qualified for duties in the Armed Forces.” The reviewing officer then found Ver-hagen acceptable for induction without providing further explanation. The orthopedist was unaware of army regulations and the court discovered nothing to indicate that personal standards were not utilized. The court held that the decision of the reviewing officer was tainted by the conclusion of an orthopedist who based his finding on improper and unknown standards and that there was no basis in fact for the finding of medical acceptability.

We do not decide that Dr. Higgin-botham applied an improper standard, but that he necessarily applied an unknown personal one in finding compliance with the psychiatric standards of the military. Higginbotham’s finding of “SI” and the orthopedist’s finding of “qualified for duties in the Armed Forces” are indistinguishable from their respective viewpoints as specialists. We find no distinction in the reviewing officer’s actions here and those in Ver-hagen.

Wilson is a young man with a documented history of drug use. We do not decide whether or not he is a drug addict and therefore medically disqualified from the military service. We hold that Wilson deserved a fair determination of his medical claim, but received an arbitrary and capricious evaluation and that there was no basis in fact for the finding of medical acceptability by AFEES.

Reversed.

      . The causes for disqualification for psychiatric reasons are set out in AR. 40-501 § XVI (1970). They are: psychoses, psychoneuroses and various personality disorders including drug addiction. Higgenbotham was unaware of these grounds for rejection when he made his psychiatric evaluation of Wilson in accordance with AR 601-270 4-20 (h) (1) (b) (1969) :
      (b) Psychiatric evaluation. A specific psychiatric evaluation will be made by the Chief, Medical Examining Section, whenever the examining physician has reason to question the examinee’s emotional, social, or intellectual adequacy for military service. Such examinees may be referred to a psychiatrist when the services of such a specialist are available with [sic] a period of 2 days. When the services of a psychiatrist cannot be made available within 2 days, or when such referral is not deemed necessary, the medical officer will make the final psychiatric evaluation except in those instances where a security action is pending and the registrant has answered yes to any of the three questions posed in item 6, DD Form 398. See chapter 2, AR 40-501 for causes for disqualification for psychiatric reasons. The mere possibility that a psychiatric condition will arise later in the military service should not be sufficient reason in itself for disqualification ; however, such a possibility should be considered in the light of other findings. (For examjde, moral waivers involving serious offenses of moral turpitude.) Psychiatric determination of mental deficiency will be made independently of the examinee’s scores on the mental tests (AFQT and other), although these scores are useful as confirmatory evidence of this disorder. The short time afforded the medical examiners at the AFEES does not permit them to arrive at a proper psychiatric functional evaluation for profiling purposes. A more desirable time for evaluating the individual’s functional ability from a psychiatric standpoint is during his basic training period. Therefore, any examinee who meets the current psychiatric standards for military service will be profiled 1 (no profile limitation), under the “S” factor in the PULHES system.

      . The government states in its brief that it has no quarrel with Verhagen “when it is established that the private doctor is unaware of the applicable army regulations.” The government then seeks to distinguish Verhagen. Government Brief at 13-14.


author: MERRILL, Circuit Judge:

text:
    KINGS COUNTY ECONOMIC COMMUNITY DEVELOPMENT ASSOCIATION et al., Plaintiffs-Appellants, v. Clifford M. HARDIN et al., Defendants-Appellees.
    No. 72-1554.
    United States Court of Appeals, Ninth Circuit.
    April 16, 1973.

      Burton D. Fretz (argued), California Legal Assistance, Santa Maria, Cal., Peter H. Reid, Legal Aid Society of San Mateo County, Daly City, Cal., for plaintiffs-appellants.
    Peter R. Steenland (argued), Dept, of Justice, Washington, D. C., Dwayne Keyes, U. S. Atty., Joel A. Wallock, Asst. U. S. Atty., Sacramento, Cal., Kent Friz-zell, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., for defendants-appel-lees.
    Before MERRILL and DUNIWAY, Circuit Judges, and CONTI, District Judge.

       Honorable Samuel Conti, United States District Judge for the Northern District of California, sitting by designation.

   MERRILL, Circuit Judge:

The Kings County Economic Community Development Association, in its complaint filed in this action, describes itself as “an unincorporated association of low-income persons who reside in Kings and Kern Counties, California; the members of said organization cannot afford to purchase bottled water and filters and accordingly must drink, wash and bathe in the high-nitrate water from wells in the vicinity of Delano, California.” Joined with the association, as plaintiffs, are individuals representing a class of “hand-harvest farm workers in the State of California facing daily exposure to polluted waters in the State.”

Plaintiffs' concern is with the danger created by the poisonous aftereffects of agricultural pesticides and fertilizers. They have unsuccessfully sought administrative relief and have prepared a proposed “clean water plan” which has not received acceptance. This action was brought against the Secretary of Agriculture, the Secretary of the Interior, and certain officials of both departments, to require them to take action in the control of water pollution caused by agricultural water users.

The complaint focuses on action required by the National Environmental Policy Act, 42 U.S.C. § 4331 et seq., and the Federal Water Pollution Control Act, 33 U.S.C. § 1151 et seq. It is plaintiffs' aim eventually to secure action from federal agencies denying farm subsidies and loans to users of pesticides and fertilizers. By this suit they seek to compel defendants to take action in this direction by way of studies, hearings and re-j ports. ;

The District Court, finding no relief available under the Acts on which plaintiffs rely, granted defendants’ motion to dismiss.

Plaintiffs’ difficulty is due to the fact that their concern is directed toward private rather than public action — the use of pesticides and fertilizers by private individuals.

The Federal Water Pollution Control Act, for example, requires compliance with applicable water quality standards by federal agencies having jurisdiction over federal facilities or engaging in public works activities. 33 U.S.C. § 1171.

On this appeal, appellants’ principal emphasis is upon the National Environmental Policy Act. They assert, first, that appellees have failed to file an Environmental Impact Statement under § 102(2) (C), 42 U.S.C. § 4332(2)(C). They regard the payment of farm subsidies as “major Federal actions significantly affecting the quality of the human environment.”

But this simply is not so. Payment of the subsidies is mandatory under the Agricultural Act of 1970, 84 Stat. 1358. The recipient is free to use the money in any way he sees fit. The fact that it (or other money of the recipient) was put to a use affecting the environment cannot convert that private use into federal action.

Appellants next contend that appellees have failed to comply with § 103 of the Act, 42 U.S.C. § 4333. Section 103 reads:

“Conformity of administrative procedures to national environmental policy
All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter.”

But a § 103 review was conducted and measures were proposed. Under date of September 9, 1970, the Council on Environmental Quality was advised of the Department’s review. The Secretary stated:

“As a result of this review and other Departmental studies, many corrective actions have been taken and many others are planned. A list of actions exemplifying steps that have been taken and the steps that are underway is attached. We regard this review as a continuing program, and we fully expect to turn up other actions as we proceed in interpreting and fully implementing the Act. Also attached is a list of possible changes in our statutory authorities. These are being considered for submission as legislative proposals following the usual process. For your further information, we are enclosing a set of Departmental directives illustrating the progress made to date in implementing the Act.”

The fact that the report did not include any recommendation respecting farm subsidies was explained by affidavit of the Assistant Secretary for International Affairs and Commodity Programs :

“ * * * the Department has administratively determined that it is not desirable to impose as a condition for payments and loans under the Department’s commodity programs that farmers follow certain practices in using pesticides, herbicides and fertilizers so as to maintain water quality standards.
We are of the opinion that these conditions are unrelated to the purposes for which the programs were adopted, namely to secure fair income for farmers, to provide for an adequate, but not excessive, supply of food and fibers and to provide more flexibility for farmers in making their own farm operating decisions. We believe that it would not be proper to impose conditions on participation in these programs as a means of inducing compliance with objectives that are foreign to the purposes for which the programs were established.”

In our judgment this is a wholly rational explanation, and failure to conclude and recommend action to the contrary cannot be said to constitute a failure to comply with the Act.

Judgment affirmed.


author: JOHN R. BROWN, Chief Judge:

text:
    Donner Joseph LeBLANC, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
    No. 72-3509
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 17, 1973.
    Rehearing Denied May 14, 1973.

      Richard .M. Olsen, New Orleans, La. (Court Appointed), for petitioner-appellant.
    Thomas P. McGee, Asst. Dist. Atty., Parish of Jefferson, Gretna, La., William J. Guste, Jr., Atty. Gen., S. J. Dileo, Jr., Special Counsel, Baton Rouge, La., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   JOHN R. BROWN, Chief Judge:

This appeal is taken from denial of a writ of habeas corpus below on grounds that (i) Appellant’s conviction in the State Court resulted from a plea of guilty entered by his appointed counsel in violation of Article 553 of the Louisiana Code of Criminal Procedure and (ii) the plea of guilty was neither voluntary, or knowingly made.

A brief recital of the events preceding this appeal will suffice. Donner Joseph LeBlanc was arraigned on February 12, 1970 at which time he was accused of armed robbery which carries a sentence of five (5) to ninety-nine (99) years imprisonment in Louisiana. He entered a plea of not guilty to the charge. On June 10, 1970, just prior to the trial, LeBlanc withdrew his plea of not guilty and entered a plea of guilty, waiving all delays for sentencing. He subsequently was sentenced to a term of six years at hard labor without the benefit of parole.

On June 8, 1971, LeBlanc filed a writ of habeas corpus in the District Court of Louisiana. An evidentiary hearing was held after which the Defendant’s request for the writ was denied. On appeal to the Supreme Court of Louisiana the writ was again denied. Rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557.

Having exhausted his state remedies, LeBlanc filed the present petition for writ of habeas corpus in the United States District Court. Regarding Appellant’s first assertion listed above, the Court below found, and we think correctly so, that it challenged only adherence to state statutory procedures and failed to raise a federal constitutional question.

Regarding Appellant’s second contention, the Trial Court below distinguished this case from Boykin on the grounds that the first habeas corpus petition in the State Court resulted in a post-conviction evidentiary hearing which established that LeBlanc’s guilty plea was voluntary. In answer to Appellant’s contention that he was unaware of his ineligibility for parole, the Trial Court correctly held, as we have, that a trial judge is not required to inform a defendant of his ineligibility for parole. Onick v. United States, 5 Cir., 1970, 425 F.2d 1292, cert. denied, 1970, 400 U.S. 846, 91 S.Ct. 92, 27 L.Ed.2d 83; Sanchez v. United States, 5 Cir., 1969, 417 F.2d 494; Trujillo v. United States, 5 Cir., 1967, 377 F.2d 266, cert. denied, 1967, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221. While we agree with the lower courts’ treatment in respect to a trial court’s absence of duty to warn a defendant of his ineligibility for parole and under the circumstances of this case, we agree with its acceptance of evidence obtained in a post-conviction hearing as curative of the otherwise defective trial transcript, we hasten to point out that a post-conviction hearing is not a panacea. The Supreme Court stated in Boykin:

“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought . and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274.

This language italicized bespeaks of precisely what normally occurs in a post-conviction evidentiary hearing. The meaning of Boykin is manifestly clear. It is error, plain on the face of the record, for a trial judge to accept a guilty plea without an affirmative showing that it is intelligently and voluntarily made. This Court will continue to scrutinize with guarded caution those situations, such as this one where the reviewing court cannot ascertain from the trial transcript that the stringent due process requirements imposed upon the states by Boykin v. Alabama, supra, have been complied with scrupulously.

But because of the overwhelming showing in the state habeas hearing that the plea was in fact knowingly made with awareness of its consequences in respect of those requirements having constitutional statute, we conclude that the District Court could so find.

Affirmed.

      . Article 553 of the Louisiana Code of Criminal Procedure provides in part' — ■
      “In a felony case the defendant shall plead in person. In a misdemeanor case the defendant may plead not guilty through counsel, and may plead guilty through counsel with consent of the court. ...”

      . As to the plea, the extract from the minutes of the State Court contained the fol-owing verbatim entry—
      “The accused, Leblanc, appeared before the Bar of the Court this day and this day and through attorney H. Lee withdrew his former plea of “not guilty” and entered a plea of “guilty as charged”, which plea was ordered to be recorded. Delays waived. It is ordered by the Court that the accused for this offense suffer imprisonment in the Louisiana State Penitentiary for a period of six (6) years at hard labor. Defendant gave his age as 24 years old, born November 21, 1945. Bond can-celled, if any. John M. Mamoulides, Assistant District Attorney, representing the State.”

      . We would add that this contention has been addressed by the High Court of the State of Louisiana and their failure to find reversible error is, as it should be, dispositive.
      In its' opinion at 559 note 2, the Supreme Court of Louisiana disposed of this contention by stating—
      “The record reflects that this allegation is obviously without merit. Although the defense attorney addressed the court to introduce the guilty plea, the trial judge addressed the defendant personally to authenticate the plea.”
      The record developed here by Petitioner does not cast any doubt on the Court’s factual statement.
      The interest sought to be protected by Article 553 may be gleaned from an “Official Revision Comment” relative to the statute which states in part—
      “ . . . Louisiana’s requirement that tiie defendant plead ‘in person’, has the advantage of making doubly sure that the defendant is fully cognizant of the plea entered. The history and purpose of this requirement is explained by Or-field, who states:
      ‘At common law an attorney for the defendant could not plead guilty for the defendant even when the defendant stood by in apparent acquiescence. This rule was relaxed only in the case of misdemeanor . . . ’ ”
      “ ‘There are a few modern cases holding that the defendant’s attorney may plead guilty for him in his presence. But the courts are reluctant to deviate from the rule. It is possible that a defendant may be too confused or too ignorant to follow the proceedings in court and might not know that a plea of guilty is being entered for him.’ Orfield, Criminal Procedure from Arrest to Appeal, 294, 295 (1947). The ALI commentary lists seventeen states having statutes providing, that ‘the plea of guilty can only be put in by the defendant himself.’ ”

      . Boykin v. Alabama, 1909, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

      . Not the least of the evidence was Appellant’s own admission at the post-conviction hearing that he knew prior to entering the plea that the judge was going to sentence him to six years imprisonment.


author: DURFEE, Senior Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. 20.53 ACRES OF LAND, MORE OR LESS, IN OSBORNE COUNTY, KANSAS, and City of Downs, State of Kansas, a municipal corporation, et al., Defendants-Appellees.
    No. 72-1571.
    United States Court of Appeals, Tenth Circuit.
    May 15, 1973.

      Dirk D. Snel, Atty., Dept of Justice (Walter Kiechel, Jr., Deputy Asst. Atty. Gen., Robert J. Roth, U. S. Atty., Roger K. Weatherby, Asst. U. S. Atty., and Jacques B. Gelin, Atty., Dept, of Justice, on the brief), for plaintiff-appellant.
    Jerry W. Hannah, Topeka, Kan. (Lloyd Bloomer, Osborne, Kan., and George B. Collins, Wichita, Kan., on the brief), for defendants-appellees.
    Before SETH, Circuit Judge, DURFEE, Senior Judge, United States Court of Claims, and MeWILLIAMS, Circuit Judge.

       DURFEE, Senior Judge of the United States Court of Claims, sitting by designation.

   DURFEE, Senior Judge.

In this eminent domain proceeding the United States filed a declaration of taking and complaint on March 3, 1966, to acquire fee simple title, perpetual flow-age easements, and lesser interests in property and municipal facilities belonging to the City of Downs, Kansas. These interests were being acquired for purposes of developing the Glen Elder Dam and Reservoir in north central Kansas. A Commission was appointed pursuant to Rule 71A(h), Fed.R. of Civ. P., to determine just compensation.

The declaration of taking specified upwards of thirty scattered property acquisitions, a number of which are clustered around the sewage treatment plant owned by Downs. This appeal by the United States is limited to that part of the judgment of the district court confirming the Commission’s award of $220,000.00 as compensation for the acquisition of interests in four parcels around the City’s sewage treatment plant. We reverse and remand.

The Government took fee simple title to the existing and only access road (Parcel F) to the sewage plant. The United States planned to build a substitute access road to run westward from the treatment plant and intersect with another road, also to be built and owned by the United States, which would run north to a public highway. The declaration of taking stated that the City “shall have the right to use” the north-south road from the public highway “as a means of access to” the substitute r.oad running westward from the treatment plant, and that the latter road “shall be conveyed to the City * * * upon its request.”

The existing effluent or outfall line from the treatment plant was also acquired by the Government by means of obtaining interests in the parcels which the line traversed (Parcels G, H) and by obtaining all right, title, and interest of Downs in portions of the effluent line. Pertinent here is also a small acquired tract (Parcel C’) to the southeast of the treatment plant.

The existing effluent line received treated sewage from the plant and conducted it by gravity to a discharge point along the north fork of the Solomon River. The Government planned to construct a protective dike along the river and an outlet works along the dike equipped to collect treated sewage and discharge it into the river. The declaration of taking provided that the United States “will construct, operate and maintain” a substitute effluent line running “to the outlet works to be constructed by the United States * * * ”, such operation and maintenance by the United States to continue “so long as the City * * * may require such in its disposal of sewage effluent.”

The district court adopted all of the findings and conclusions of the Commission without change or addition. Insofar as this appeal is concerned, the Commission found and concluded;

TRACTS P, G, H and C.
The Commission finds from the evidence that tracts F, G, H and C (sic) are so inter-related that they should be considered together. The Commission further finds from the undisputed evidence that prior to the taking, the City of Downs, Kansas was operating a primary and secondary sewage treatment plant in accordance with the rules and regulations of the Department of Health of the State of Kansas, and in all respects, in conformity with all statute laws of the state of Kansas governing the operation of sewage treatment plants. The Commission further finds that after the taking, the existing sewage plant was in effect destroyed and the rule of substitute facility, as instructed by the Court, should apply for the reason that there is no market data available for sewage treatment plants. The Commission further finds that the damages suffered by the city of Downs, Kansas, was the sum of $220,000.00.

Appellant, the United States, argues (a) that the Commission apparently awarded compensation for the taking of the entire sewage treatment plant, valuing the plant by means of the replacement cost all facilities including the value of a chlorination facility which never existed as a part of the original plant; (b) that in awarding compensation the Commission impermissibly went beyond the scope of the declaration of taking since only the treatment plant’s access road and effluent line were taken; (c) that the Commission was led astray by the district court, and the court overstepped its own jurisdiction, in instructing the Commission to consider whether or not the “city sewage system” had been “destroyed” by the takings; and (d) “the measurement of compensation for the Government’s relocation of a sewer line and access road was clearly erroneous” since all adequate substitutes had been provided.

The foremost error infecting these proceedings is that the Commission failed to comply with the reporting standards set forth in United States v. Merz, 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629 (1964). We cannot intelligently review the alleged errors because we do not know how the Commission (and court) arrived at the award of $220,000.00.

The Commission’s findings are to be accepted by the district court “unless clearly erroneous.” We in turn also accept the findings unless clearly erroneous. United States v. Brinker, 413 F.2d 733 (10th Cir. 1969). However, conclusory findings are alone not sufficient. Such findings are not reviewable by the “clearly erroneous” standard. Merz, supra, at 198, 84 S.Ct. 639. The Commissioners must show the pathway they took through the maze of conflicting evidence which at the very least consists of demonstrating the reasoning they used in deciding on the award, the standard of valuation they tried to follow, the line of testimony they adopted, and the measure of severance damages (if any) they used. Merz, supra, at 198, 84 S.Ct. 639. See generally, United States v. Corbin, 423 F.2d 821 (10th Cir. 1970); United States v. Evans, 380 F.2d 761 (10th Cir. 1967); Chandler v. United States, 372 F.2d 276 (10th Cir. 1967). Other than state generally that it was using the “substitute facility” rule, the Commission utterly failed to cast light on its pathway to this award.

The parties in this' proceeding have given us record references to testimony whereby we might fabricate a bridge to the conclusions of the district court and the Commission. That is not our job.

Since this condemnation proceeding has involved a difficult and unusual configuration of facts and issues and it appears that the controversy has generated much heat, it may be helpful to the court and Commission to review here a few basic principles.

I. It is elementary that how much or how little property the United States elects to take by condemnation is a legislative, not a judicial, question. Berman v. Parker, 348 U.S. 26, 35-36, 75 S.Ct. 98, 99 L.Ed. 27 (1954). The nature or extent of the interest to be acquired is not to be expanded by judicial fiat. Wilson v. United States, 350 F.2d 901, 906 (10th Cir. 1965). On the other hand, it is equally clear and elementary that where part of a single tract is taken, the owner’s compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract. United States v. Miller, 317 U.S. 369, 376, 63 S.Ct. 276, 87 L.Ed. 336 (1943), and cases therein cited. This is severance damage.5

II. The Supreme Court has long recognized the general rule that indemnity to the owner of condemned property is to be measured by the market value of the property. But the Court has also recognized that market value “may not be the best measure of value in some eases.” United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392 (1949). More specifically, in Brown v. United States, 263 U.S. 78, 83, 44 S.Ct. 92, 94, 68 L.Ed. 171 (1923), where the Federal Government had condemned municipal facilities, Chief Justice Taft concluded that “(a) method of compensation by substitution would seem to be the best means of making the parties whole.” See also Annotation 40 A.L.R.3d 143 et seq.

In the case at hand the district court instructed the Commission:

[T]he general principles applicable to an eminent domain taking of municipal facilities are well established. The taking may be justly compensated by payment of the costs of a substitute, so long as a full equivalent is afforded for the property taken. * * * A sewage disposal plant and sewage system of a city is a facility having no market value. * * *

A source of difficulty in this case has been created by the illusory intersection of the substitute facility rule and the severance damage rule. We believe the case of United States v. Board of Education of Mineral County, 253 F.2d 760 (4th Cir. 1958), offers some guidance. In that ease the Federal Government took approximately three of the eight acres of the Ridgely, West Virginia, High School. The highest and best use of the eight acres was for school purposes ; for these purposes the eight acres had no market value. The evidence was that the High School could not be properly operated with less than eight acres. Hence, the value of the entire eight acres “would be largely destroyed,” according to the evidence, if land were not acquired in substitution for the land taken by the Government. The court concluded: “Any reasonable man would say that where the government takes a part of the property necessary to the proper operation of a school, the government should make it possible for the school to acquire other property to use in substitution for the property taken.” 253 F.2d at 763. Similarly, where the Government takes a part of the property necessary to the operation of a sewage plant, the Government should make it possible for the sewage plant’s owner to acquire other property to use in substitution for the property taken.

III. In eminent domain proceedings, it is axiomatic that “a full and just equivalent shall be returned” to the condemnee. Monongahela Navigation Co. v. United States, 148 U.S. 312, 325, 13 S.Ct. 622, 37 L.Ed. 463 (1893). The owner “is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.” Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934). An issue in this case is whether or not the Government is obligated to compensate Downs for the value of a new chlorination plant. The plant is necessary in order to treat sewage discharged into recreational waters in compliance with enhanced water quality standards. We believe the cases, City of Eufaula v. United States, 313 F.2d 745 (5th Cir. 1963), and United States v. 531.13 Acres in Oconee County, 366 F.2d 915 (4th Cir. 1966), will provide some guidance to the district court on remand. We do not mean to intimate that the result in these cases must also obtain here.

We decline otherwise to pass upon the alleged errors raised by appellant until we have a full and proper report of the Commission before us.

In remanding, we think in this case it is appropriate to follow the procedure outlined in Merz, supra, at 200, 84 S.Ct. 639. We think the district court should have the opportunity under Rule 53(e)(2) to make its decision afresh, in light of this opinion. On remand, the district court’s informed discretion will be used to determine whether the matters should be resubmitted in whole or in part to the Commission, or whether the court itself should resolve the disputes on the existing records, or on those records as supplemented by further evidence.

Reversed and remanded.

      . At the time of trial in November 1970, both the substitute access road from the treatment plant to the north-south intersecting road and the north-south road to the public highway had been built and were in use.

      . As of the time of trial the effluent line had been rerouted and in use.

      . Both parties have indicated in their briefs that the tract involved is “C’ ”, not “C”.

      . Apparently the Commission concluded, and the court agreed, that the Government’s promise to provide substitute facilities should be given no weight in determining just compensation; or, that since the Government merely promised permissive use of the Federally owned and controlled substitutes, the substitutes were valueless. We do not actually know the reasoning of the Commission.

      . Fed.R.Civ.P. 71A(h) and 53(e)(2).

      . An argument of the Government upon this appeal is that the district court by instruction and orders repeatedly wrongly told the Commissioners that whether the “city sewage system” had or had not been “taken” was a factual question to be resolved by them. Although the district court’s instructions and orders could have been more clearly drawn to avoid any remote inference that the Commission was free to consider whether or not the entire sewage plant was taken, we think that the court was, perhaps inartfully and confusedly, doing no more than explaining to the Commission that it could consider severance damages. The court negated the aforementioned inference in its April 10, 1968 Ruling on Objections to Supplemental Instructions, which the court directed the Commission to consider when interpreting instructions. In that Ruling the court said: “[C]ertainly no award may be made for property not taken.”

      . See Annotation, 19 L.Ed.2d 1361, 1367-1369.