author: INGRAHAM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph Harold JOHNSON and Hugh Don Smith, Defendants-Appellants.
    No. 72-2477
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 17, 1973.

      Andrew A. Smith, Atlanta, Ga. (Court-appointed), for Joseph Harold Johnson.
    Henry Gonzalez, Tampa, Fla., for Hugh Don Smith.
    Robert L. Smith, Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   INGRAHAM, Circuit Judge:

Hugh Don Smith and Joseph Harold (“Butterball”) Johnson appeal from their conviction by a jury of violating 18 U.S.C. § 472 in connection with the passing of counterfeit Federal Reserve notes. We affirm Smith’s conviction but reverse and remand for a new trial as to Johnson.

Smith’s appeal is based on the sole contention that there was insufficient evidence for the jury to conclude that he passed the admittedly counterfeit money with the requisite intent to defraud. We decline to elaborate on this contention other than to say that we have read the record of his one and one-half day trial and find more than ample evidence to support the jury verdict, even apart from the rule that we must view the evidence in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). See Local Rule 21.

Appellant Johnson argues that the trial court erred in denying his motion for a severance, made and denied before trial, and renewed and again denied at trial; he also asserts that a mistrial should have been declared because the government prosecutor used a “birds of a feather” argument to the jury. We will discuss only the first of these claims.

Johnson timely filed his pre-trial motion for severance pursuant to F.R. Crim.P. 14. This motion was denied.

Whether to sever the trial of a defendant who has been properly joined, F.R.Crim.P. 8(a) and (b), for trial with other defendants is a matter within the sound discretion of the trial court. Oper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Harris, 458 F.2d 670 (5th Cir., 1972). A trial court’s denial of severance will not be lightly overturned, and a defendant has an extremely difficult burden of showing on appeal that the lower court’s action was an abuse of discretion. Tillman v. United States, 406 F.2d 930, 935 (5th Cir., 1969). See C. Wright, Federal Practice & Procedure, § 223 at 441-42 (1969). On the facts present in this case, however, the trial court abused its discretion.

A severance of Johnson’s case was required when at trial it appeared, as Johnson’s well-briefed pre-trial motion for severance had predicted, that he could not obtain a fair trial in a joint trial with Smith. The pre-trial motion revealed that Johnson’s theory of defense would be completely antagonistic to that of his co-defendant Smith; and furthermore, the motion pointed out that Smith had made a confession directly incriminating Johnson. Johnson’s defense was that he was not present when the crime charged was committed. His guilt or innocence, therefore, depended on an absence of convincing identification testimony. Smith, however, took an altogether different approach in his defense. He did not deny passing the bills but contended that he did not pass them with the requisite intent to defraud. Indeed, Smith confessed to passing the bills on the day in question. His theory was that, because he was an informer for an Atlanta police detective and because White, the third person in this transaction, accepted the money with knowledge that it was counterfeit, he (Smith) was not criminally liable because he lacked the necessary mens rea to violate the statute.

As previously mentioned, Smith’s confession directly incriminated Johnson and completely contradicted Johnson’s theory of defense. In his confession Smith stated that Johnson was the person who was with him on , the night that the bogus bills were passed to White. And almost equally as damaging, Smith said that Johnson was the procurer and original possessor of the counterfeit money. A copy of Smith’s statement was, very appropriately, attached to Johnson’s motion for severance. It was thus apparent prior to trial that there was a distinct probability that Johnson and Smith would offer conflicting and antagonistic theories of defense. While Smith would not be highly prejudiced in the presentation of his defense by Johnson’s presence at trial, Smith’s presence would cause definite hardship to Johnson as he endeavored to prove that he played no part in the crime and was not present when it was committed.

Any doubt as to whether the potential prejudice to Johnson- — which, we repeat, was forecast in his pre-trial motion — -would come to fruition was dissipated at the trial. Although finding no prejudice from the joint trial in the case before it, the Supreme Court emphasized that in joint trials “the trial judge lias a continuing duty at all stages of the trial to grant a severance if prejudice does appear.” Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed.2d 921 (1960). See Flores v. United States, 379 F.2d 905 (5th Cir. 1967); Byrd v. Wainwright, 428 F.2d 1017, fn. 1 at 1019 (5th Cir., 1970).

In his opening remarks to the jury Smith’s attorney characterized Smith as a “white hat” government informer whose only purpose was to help lead law enforcement officers to the persons responsible for stealing and dealing in stolen unregistered firearms. Counsel described “Butterball” Johnson as having a “sack full of counterfeit money” and intimated that Smith, acting as his “own Dick Tracy,” had a secondary goal of seeing that Johnson was apprehended for his activity with the counterfeit money. Counsel then commented on the transaction out of which the indictment arose and said that Johnson was present at the scene and was the one who had brought the bogus money to Smith. Smith’s position was thus obvious: he was the good guy — only along for the ride — in order to see that criminals such as White and Johnson were removed from circulation.

After counsel closed, Johnson’s attorney moved for a mistrial and renewed his motion for severance, pointing out that Smith’s theory of defense was now clear and obviously prejudicial to his client. The motion was denied.

The district court was thus apprised before any testimony that Smith had given a confession directly incriminating Johnson, that there was no reason to expect that the government would not introduce this confession, that the theory of Smith’s defense was directly in conflict with Johnson’s, and that Smith had, quite properly, no qualms about casting Johnson as the major culprit in the counterfeit transaction.

Additionally, the accuracy of Johnson’s pre-trial prediction of prejudice was further substantiated by the course of the trial. White, the seller of the unregistered firearms and receiver of the counterfeit money, testified that he believed it was “Butterball” Johnson who was present when the bills were passed to him. However, he related that it was dark when the transaction occurred, that he had neither met nor talked with Johnson for any length of time prior to the instant transaction, and that his identification was based on surmise— from Johnson’s size as well as comments by Smith. Suffice to say that his testimony, while it would be enough to support Johnson’s conviction, was clearly not sufficient to compel it. See, e. g., Harrington v. California, 395 U.S. 250 (1969).

It is unnecessary to discuss in detail the remainder of the trial — a brief summary is sufficient. A study of the record reveals that Smith’s attorney implicated Johnson at every opportunity. Moreover, Smith’s confession was introduced with no deletions of the incriminating statements concerning Johnson. When Smith took the stand, he affirmed his out-of-court statement and also took every available opportunity to further incriminate Johnson as a generally bad person and as the prime mover in the counterfeit transaction. In sum, Smith was the government’s best witness against Johnson.

In Schaffer v. United States, 221 F.2d 17, 19 (5th Cir., 1955), this court recognized that the granting of a motion for severance is within the trial court’s discretion, and that “what constitutes an abuse of discretion necessarily depends upon the facts in each particular case.” The court also recognized that a severance was not required simply because one co-defendant had made a confession implicating the other. The court held, however, that the lower court erred in not granting a severance.

“A careful study of the record in this case, however, leads us to the conclusion that the motion for severance should have been granted. Devenny and Schaffer were together throughout the transaction; both were present on every pertinent occasion. Schaffer’s confession implicated De-venny and, while the trial judge eliminated from the confession the statement that T think that Devenny knew the property was stolen,’ other parts of the confession clearly prejudiced Devenny in the eyes of the jury. The court, of course, properly instructed the jury to consider the confession as evidence against Schaffer alone, and to disregard it as evidence against De-venny. We believe, however, that the two defendants were so inseparably connected that the jury could hardly have been expected to return a verdict of guilty against one and of not guilty as to the other. There being only two defendants, it would not be very time consuming but entirely practicable to accord them separate trials. Like the Seventh Circuit in the case of United States v. Haupt, 136 F.2d 661, 672, ‘We doubt if it was within the realm of possibility for this jury to limit its consideration of the damaging effect of such statements merely to the defendant against whom they were admitted.’ We hold, therefore, that the court erred in denying the appellant Devenny a separate trial.”

Id. at 19.

Here, as in Schaffer, supra, there were only two defendants, and it would not have been very time consuming, but entirely practicable, to have accorded them separate trials. As was noted in United States v. Harris, 458 F.2d 670, 673 (5th Cir., 1972):

“In weighing the competing factors under Rule 14 regarding severance, the trial court must evaluate the alleged factual and legal compactness of the consolidated trial and the government’s interest in judicial economy with the potential prejudice to any of the defendants.”

Johnson’s motion for severance was made at least two months prior to trial and was renewed immediately after Smith’s attorney’s opening statement removed any doubt which could have been present concerning Smith’s plan of defense. The posture of the case at the pre-trial stage would warrant the conclusion that no abuse of discretion occurred in the denial of Johnson’s motion at that point. But as the trial progressed it became clear that the prejudice to Johnson of defending at a joint trial with Smith outweighed any possible disruption in the judicial process which would result from having separate trials.

We hold that in the particular circumstances of this case the trial court abused its discretion in not granting a severance pursuant to its “continuing duty at all stages of the trial to grant a severance if prejudice does appear.” Schaffer v. United States, supra, 362 U.S. at 516, 80 S.Ct. at 948. Johnson has established “something more than the fact that ‘a separate trial might offer him a better chance of acquittal.’ ” Tillman v. United States, supra, 406 F.2d at 935, quoting 8 Moore, Federal Practice j[14.04[l], at 14-10, 11. He has demonstrated the “affirmative prejudice,” United States v. Wilson, 451 F.2d 209 (5th Cir., 1971), necessary for a denial of severance to constitute an abuse of discretion. We therefore reverse his conviction and remand for a new trial.

The Smith judgment is affirmed. The Johnson judgment is reversed and remanded.

      . This statute provides :
      “Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both.”

      . This rule provides :
      “If it appears that a defendant or the government is prejudiced by a join-der of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.”

      . It is necessary at the outset to note the problems which this case does not present. We do not have a Bruton [Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1969)] situation because the co-defendant Smith was available for and was cross-examined. Nor do we face the problem encountered in Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), where the Supreme Court held that if a co-defendant takes the stand in his own defense, denies making an out-of-court statement incriminating the other co-defendant, and testifies in the latter’s favor, the co-defendant’s right of confrontation was not violated. The rationale for this decision, as explained by Mr. Justice Stewart, is that “given a joint trial and common defense, Bunnells’ [O’Neil’s co-defendant] testimony respecting his alleged out-of-court statement was more favorable to the respondent [O’Neil] than any that cross-examination by counsel could possibly have produced, had Bunnells ‘affirmed the statement as his.’ It would be unrealistic in the extreme in the circumstances here presented to hold that the respondent was denied either the opportunity or the benefit of full and effective cross-examination of Bunnells.” Id. at 629, 91 S.Ct. at 1727.
      Our case is not controlled by O’Neil. The textual discussion, infra, will show that Smith and Johnson did not have a common defense and that Smith did not repudiate his out-of-court statement — ■ instead, he enthusiastically affirmed it. Smith’s testimony cannot in any respect be characterized as favorable to Johnson.
      Thus, Bruton, as clarified and explained by O’Neil, makes it plain that our reversal cannot rest on a violation of Johnson's constitutional right of confrontation. This conclusion does not answer the question. whether the trial court abused its discretion in denying a severance.

      . See DeLuna v. United States, 308 F.2d 140 (5th Cir., 1962).

      . The deletion of the incriminating portions of a confession which implicates a co-defendant is frequently used to avoid error in this type of situation. See, United States v. Kershner, 432 F.2d 1066 (5th Cir., 1970) ; Posey v. United States, 416 F.2d 545 (5th Cir., 1969).

      . See note 5, supra.

      . That the rationale of Schaffer is still via-able is illustrated by our recent opinion in United States v. Harris, 458 F.2d 670, 673 (5th Cir., 1970), where we said:
      “ . . . The trial judge in the instant case concluded that there would be no prejudice to the individual defendants resulting from consolidation, and we do not find he has abused his discretion by so concluding. This is not a case of one co-defendant confessing and implicating a fellow co-defendant by his confession, which might make it insurmountably difficult for a jury to render its decision regarding one co-defendant on the basis of his confession and yet to ignore that confession altogether when deliberating the fate of the second co-defendant.”

        [Citing Flores v. United States, 379 F.2d 905 (5th Cir., 1967) ; Belvin v. United States, 273 F.2d 583 (5th Cir., 1960, cert. denied 372 U.S. 922, 83 S.Ct. 737, 9 L.Ed.2d 726 (1963) ; Barton v. United States, 263 F.2d 894 (5th Cir., 1969) ; Schaffer v. United States, 221 F.2d 17 (5th Cir. 1955) ; Wright, Proposed Changes in Federal Civil, Criminal, and Appellate Procedure, 35 F.R.D. 317 (1964).

      . Professor Wright phrases the standard for appellate review of a denial of severance as follows : “If the appellate court is left witli a definite and firm conviction that a defendant may have teen prejudiced by the refusal to give him relief from joinder, it must reverse the conviction.” C. Wright, Federal Practice & Procedure, § 227 at 470 (1969) (emphasis added).


source: Caselaw Access Project

author: MATTHES, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. William Henry SOCKEL, Appellant.
    No. 72-1716.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1973.
    Decided June 4, 1973.

      Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
    Anthony P. Nugent, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before MATTHES, Chief Judge, and MEHAFFY and STEPHENSON, Circuit Judges.
   MATTHES, Chief Judge.

Finding no merit in appellant’s three contentions of error, we affirm his conviction for interstate transportation of a stolen firearm, knowing it had been stolen, all in violation of 18 U.S.C. §§ 922(i) and 924(a).

The evidence stands unchallenged and, in brief, presented these facts. On January 5, 1971, during the course of interrogation of appellant and other individuals by Kansas City, Kansas, police officers, appellant by use of a gun taken from his coat, disarmed two of the police officers, re-entered the automobile in which he had been riding at the time he was stopped for interrogation, and left the scene.

Appellant was arrested pursuant to an arrest warrant in Kansas City, Missouri, on January 13, 1971. During the ensuing search in the house where appellant was arrested, one of the guns taken from one of the Kansas City, Kansas, police officers was found in appellant’s possession. An indictment was returned, numbered 23391-1. On August 20, 1971, and following interlocutory proceedings, another indictment was filed. This indictment bears district court No. 23529-1. The case went to trial on the last indictment, No. 23529-1, on November 16, 1971. The jury received the case at 3:26 p. m. on that day and returned its verdict at 3:38 p. m. This timely appeal followed.

I

First, we consider and reject appellant’s claim that error resulted from the court’s refusal of appellant’s offer to take a polygraph examination for the stated purpose of lending weight to his testimony in support of his motion to suppress evidence. The court, Honorable John W. Oliver, held two evidentiary hearings on the motion to suppress. The first was held on June 11, 1971, in case No. 23391-1. At the conclusion of that hearing, at which appellant testified, the court specifically found that the arrest was made pursuant to a warrant and that the seizure of the gun was valid, and thereupon denied the motion to suppress. On November 12, 1971, another hearing was held, this time in the instant case, No. 23529-1. At the outset of that hearing, it was indicated that the first indictment, No. 23391-1, would be dismissed. Apparently, it was, although the files before us do not show the actual disposition of the first indictment. At the second suppression hearing on November 12, 1971, counsel for appellant informed the court of appellant’s offer to take a polygraph examination. The court denied the request, stating in part:

“I know of no case that comes remotely close to suggesting that a polygraph examination is admissible in a court of law, either to prove or disprove anything.
“So, the record will show that the offer is made, but I would be most surprised, Mr. Houdek [appellant’s trial attorney] if you know of any cases that held that a polygraph test is admissible under any circumstances. Do you know of any ?”
Mr. HOUDEK: “No, I don’t, your honor and I have looked.”

The court was eminently correct in its ruling. See McCroskey v. United States, 339 F.2d 895, 899 (8th Cir. 1965), and cases there cited, specifically Aetna Ins. Co. v. Barnett Bros., 289 F.2d 30, 34 (8th Cir. 1961). As recently as April 13, 1973, the United States District Court for Central California held there are too many variables in lie detector test administration, evaluation and its in-eourt interpretation, to make such tests admissible as evidence. United States v. Urquidly, 13 Crim.L.Rptr. 2151. And on April 18, 1973, the Texas Court of Criminal Appeals concluded that it should adhere to the general rule of exclusion of a polygraph test. Romero v. State, 493 S.W.2d 206.

II

Appellant submits and argues that the district court abused its discretion in denying his motion for a new trial on the ground that he was deprived of a fair and impartial jury. This claim is premised upon the failure of jury foreman, William E. Werner, .to reveal that his brother was a deputy sheriff serving at the Jackson County, Missouri, jail where appellant had been incarcerated prior to his trial. Judge Oliver, in conducting the voir dire examination, directed the following, among other questions, to the panel of prospective jurors:

“Let me make inquiry as to whether any members of the panel or members of your immediate family have ever worked as a law enforcement officer for any government, either city police force, sheriff or deputy sheriff of the county, law enforcement officer of any kind, including federal government.” (Emphasis supplied).

Mr. Werner made no response to the inquiry.

The relationship between Mr. Werner and the Jackson County deputy sheriff was first brought to the attention of the court in appellant’s motion for new trial, which was filed on December 10, 1971. Thereupon, Judge Oliver launched an investigation which precipitated the filing of numerous documents by the United States Attorney and the appellant. In pertinent part, the record compiled on this issue reveals that one Charles Chapman was a deputy sheriff of Jackson County, Missouri, and that Chapman is a brother of Mr. Werner, but had adopted the surname of his stepfather. The separate affidavits of appellant and his attorney stated without qualification that Mr. Chapman was a half brother of Mr. Werner, having the same mother but different fathers. The Assistant United States Attorney in charge of the case, in an addendum to his suggestions and in opposition to appellant’s motion for new trial, stated Chapman is in fact a full brother of Mr. Werner and the court so found in its memorandum order denying the motion for new trial.

More importantly, however, the files show and the court found that Mr. Chapman had visited with his brother, Mr. Werner, only once since 1969 and that visit was subsequent to the time appellant was tried. In rejecting the claim of prejudice resulting from the relationship above mentioned, the court further stated: “Mr. Chapman has expressed the opinion that Mr. Werner probably did not even know he was employed as a deputy sheriff until after November 16, 1971 (the date of trial). At any rate, the record establishes no contact whatever between the brothers before or during the trial. Indeed, it is not even alleged that Mr. Werner was influenced by the circumstances of his relation to Mr. Chapman.”

It is a cardinal principle of federal jurisprudence that generally where the defendant asserts essential unfairness to vitiate his trial, the burden must be sustained not as a matter of speculation, but as a demonstrable reality. Darcy v. Handy, 351 U.S. 454, 76 S.Ct. 965, 100 L.Ed. 1331 (1956). Appellant recognizes that this principle applies with equal force where an attack is made upon the integrity of the trial by reason of alleged misconduct on the part of a juror in failing to disclose pertinent information which might have caused a juror to be prejudiced against the appellant. See Kleven v. United States, 240 F.2d 270 (8th Cir. 1967); Morrison v. Ted Wilkerson, Inc., 343 F.Supp. 1319, 1330-1332 (W.D.Mo.1971), aff’d per local Rule 14, No. 71-1567 (8th Cir., Apr. 13, 1972); Harris v. United States, 412 F.2d 384 (9th Cir. 1969).

Neither are we persuaded that it was incumbent upon Judge Oliver to hold an evidentiary hearing for the purpose of examining Mr. Werner. This record convincingly attests to Judge Oliver’s concern over the claimed prejudice and his sensitivity to the right of the appellant to be tried by a jury which was not tainted in any respect; and he accordingly explored the issue in depth. The record before us conclusively shows that Mr. Werner did not intentionally or knowingly withhold any information which would have served to alert the appellant and his able trial attorney to further interrogation relating to his qualifications to serve as a juror. We conclude, as Judge Oliver did, that Mr. Werner, ' described in the record as a sales representative, was without any pertinent, knowledge resulting from his relationship to the deputy sheriff, and that the trial was not infected by his service as the jury foreman.

Ill

Finally, appellant asserts the court’s instructions were erroneous in that they permitted the jury to draw inferences from the evidence. We find this contention devoid of substance. The court’s charge, considered as a whole as it must be, accurately submitted all issues and required the government to prove all of the essential elements of the offense beyond a reasonable doubt.

In sum, this case was tried free of any pretrial or trial errors, and the judgment is affirmed.


author: FRIENDLY, Chief Judge:

text:
    Samuel GRAFTON and Lyle Silversmith, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BROOKLYN LAW SCHOOL et al., Defendants-Appellees.
    No. 799, Docket 73-1098.
    United States Court of Appeals, Second Circuit.
    Argued May 2, 1973.
    Decided May 24, 1973.

      Eric M. Lieberman, New York City (Victor Rabinowitz, Dorian Bowman, and Rabinowitz, Boudin & Standard, New York City, [for National Emergency Civil Liberties Committee], of counsel), for plaintiffs-appellants.
    Denis Mclnerney, New York City (Henry G. Bisgaier, Frank W. Krough, and Cahill, Gordon, Sonnett, Reindel & Ohl, New York City, of counsel), for defendants-appellees.
    Before FRIENDLY, Chief Judge, HAYS, Circuit Judge, and JAMESON District Judge.

       Of the District Court for the District of Montana, sitting by. designation.

   FRIENDLY, Chief Judge:

This appeal is from an order of the District Court for the Eastern District of New York dismissing for want of jurisdiction a civil rights suit brought by two students expelled from Brooklyn Law School, a private non-profit institution, for scholastic deficiency, on the ground that the Law School was not engaged in state action. It raises, as did Powe v. Miles, 407 F.2d 73 (2 Cir. 1968) and Coleman v. Wagner College, 429 F.2d 1120 (2 Cir. 1970), the question whether various involvements of the State and City of New York with the Law School have converted what on its face was private action into action “under color of any State law, statute, ordinance, regulation, custom, or usage” within 42 U.S.C. § 1983. The frequency with which such questions now arise has not made the task of giving a principled answer any easier.

Brooklyn Law School, originally a division of St. Lawrence University, became a wholly independent school in 1941. It operates under a charter granted by the New York State Board of Regents. It has adopted policies and practices entitling it to be considered an “approved law school” within former Part 523 of the Rules of the New York Court of Appeals relating to the Admission of Attorneys and Counselors at Law so that, under former § 521.1, now § 520.4(a), a graduate is eligible to take the state bar examination without having studied for four years in a law office.

Plaintiffs’ claims, as stated in the complaint and their affidavits in reply to defendant’s motion for summary judgment, are as follows:

Plaintiff Grafton commenced his studies at Brooklyn Law School in the fall of 1969 and achieved a good grade average during his first semester. He became a staff member of The Justinian, the school newspaper, and wrote an article exposing underrepresentation of blacks in the student body. In the spring of 1970 he vigorously participated in antiwar activities in regard to the conduct of the war in Southeast Asia. The Law School granted a request voiced by many students that, in order to permit participation in such activities, the examinations that would normally have been given in the spring of 1970 be postponed for those who so requested until September. For this semester Grafton, who made such a request, received a D+ average which included 6 points of F out of a total of 13, and was given a “final personal warning” by the Assistant Dean. Grafton claims that grades on the September examinations were generally lower than those in June and that this was due to retaliation by the faculty against anti-war activities.

In the fall of 1970 Grafton was elected editor-in-chief of The Justinian. During his tenure it published several controversial articles including a reprint of a scathing column in the New York Post relating to the work habits of state judges and the results of a poll indicating the opinion of a large majority of the students that the new dean should not be selected from the administration or faculty. For the fall semester of 1970-71 Grafton received another D+ average; this included an F in a 3-cred-it course in taxation. Grafton claims that the taxation final examination was so contrived that the grading, professor could pass or fail any student as he desired, and that staff members of The Justinian received lower grades than others taking the same course. Grafton was dropped as a student on February 24, 1971, for the stated reason of failure to maintain the minimum required scholastic average.

Plaintiff Silversmith began his studies at Brooklyn Law School in September 1967, was dropped after the first year for deficient scholarship, but on the basis of an assertion that his attention span had been improved by psychotherapy was readmitted in the fall of 1969 on condition that he maintain a C average. He also became a member of The Justinian staff and an anti-war activist. In his first year, in courses he was taking for the second time, he more than achieved the required C average. In the fall semester of 1970-71, taking new courses, he fell far below this, with 3 credits of F, 4 of D, and 2 of C, and was dropped. He asserts this was in retaliation for his anti-war activities.

Applications by both plaintiffs for readmission were denied after hearings. These were stenographically recorded but after their dismissals plaintiffs were refused access to their examination papers.

Plaintiffs assert that the Law School’s conduct violated their constitutional rights to free speech and representation by counsel, guaranteed by the First and Sixth Amendments as made applicable to the states by the Fourteenth, and deprived them of liberty and property without due process of law in violation of the Fourteenth Amendment. There is no need for us to consider the merits of these claims since we hold, as did the district judge, that the actions of the Law School in dismissing and refusing to reinstate the plaintiffs were not “under color of any State Law, statute, ordinance, regulation, custom or usage,” 42 U.S.C. § 1983.

Many of plaintiffs’ contentions run counter to the portion of our opinion in Powe v. Miles, supra, 407 F.2d 79-82, dealing with the liberal arts students at Alfred University. We there rejected the claim that the furnishing of higher education necessarily constitutes state action because it is a “public function” as that term has developed from Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), and related cases. We see nothing in doctrinal developments since 1968 or in the facts here to call for a different result on that score. The circumstance that we are here dealing with a law school rather than a liberal arts college does not make law teaching “governmental in nature.” •To be sure, law students may become the subject of state action when they apply to the state for admission to the bar, see Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961); Law Students Civil Rights Research Council Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), or after they have achieved admission, see Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). But the mere fact that a school is giving instruction the successful completion of which affords one, and the more generally desired, path to the taking of a state bar examination, does not make its functions any more governmental than the imparting of the pre-legal instruction which is also required, Rules of the Court of Appeals § 520.3. See Developments in the Law-Academic Freedom, 81 Harv.L.Rev. 1048, 1060-61 (1968).

In Powe, supra, 407 F.2d at 81, we likewise rejected the contention that New York’s regulation of educational standards under § 207 and other sections of the Education Law in institutions of higher learning caused their acts, in that case the disciplining of students, to constitute state action. Again we find nothing in doctrinal development or in the special circumstances of this case to call for a different conclusion. The regulations issued by the Commissioner of Education for Schools of Law, § 52.17, are no more detailed than those for liberal arts colleges. The regulations do require a law school in New York to maintain “a minimum qualitative requirement for graduation,” § 52.17(h), as well as certain quantitative requirements with respect to the physical plant and the teaching staff. But we do not consider this bland provision, commanding only what would be done voluntarily by any law school worthy of the name, as implicating the state in the administration of an examination system, as we thought the disciplinary regulations required by § 6450 of the Education Law might have done in Coleman v. Wagner College, supra, 429 F.2d at 1120.

While Powe v. Miles, supra, 407 F.2d at 81, also took a negative view with respect to the relevance of the financial aid given to the liberal arts college in determining state action, plaintiffs’ claims here are somewhat more substantial. The financial aid is of two sorts:

One is that the present building of Brooklyn Law School is on a site acquired from the City of New York at a public sale in 1965 where bidding was restricted to “a non-profit corporation . for the construction of educational facilities” and the Law School, as the only bidder, bought the land for the upset price of $750,000, allegedly far below its real value. But the mere grant of property to assist the construction of an educational facility has not been thought sufficient to convert it from a private into a public institution. In the first important case where the Supreme Court considered that issue, although not, of course, directly in the context of “state action,” Trustees of Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518 (1819), 4 L.Ed. 629, the College had been the beneficiary of lands of “great value”_._granted by the states of Vermont and' New Hampshire, 4 Wheat, at 538. However, this did not interfere with Chief Justice Marshall’s concluding that Dartmouth’s trustees and professors were not “public officers, invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority.” 4 Wheat, at 634. Although the establishment clause of the First Amendment prohibits many types of governmental assistance which would scarcely suffice to make the receiving agency a state instrumentality under 42 U.S.C. § 1983, see, e. g., Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), construction grants to religious educational institutions for secular purposes have been sustained. Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899) ; Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). We need not decide what the result would be if New York City had not only given the land, see note 10 supra,, but constructed the buildings and leased them to the Law School, a situation that would demand consideration of how far Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), applies beyond the area of racial discrimination.

The other form of state aid is that under § 6401 of the Education Law, added by Laws 1968, c. 677, a private institution meeting “standards of educational quality applicable to comparable public institutions” is entitled to $400 for each bachelor’s or master’s degree which it awards, except for degrees earned by students with respect to whom other state aid has been granted to the institution. It could well be that such grants by the state, even though they represent only a small part of the cost of affording three years of legal training, would afford a ground for constitutional complaint if the charge here were an admission policy discriminating against racial or religious groups. See Cooper v. Aaron, 358 U.S. 1, 19, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Louisiana Education Comm’n v. Poindexter, 393 U.S. 17, 89 S.Ct. 48, 21 L.Ed.2d 16, aff’g 296 F.Supp. 686 (E.D.La.1968). But while a grant or other index of state involvement may be impermissible when it “fosters or encourages” discrimination on the basis of race, the same limited involvement may not rise to the level of “state action” when the action in question is alleged to affront other constitutional rights. We do not regard the $400 payment as sufficient to carry on its back the particular constitutional rights that plaintiffs here advance. See Grossner v. Trustees of Columbia University, 287 F.Supp. 535, 548 (S.D.N.Y. 1968). Moreover, while we held as to the College of Ceramics students in Powe v. Miles, supra, that conduct performed by otherwise “private” institutions on contract with the state to provide education would itself be state action, the mere making of an outright grant amounting to a fraction of the actual cost of conferring a degree does not suffice to make the school the agent of the state.

There remains for consideration the point that plaintiffs press most strongly of all, namely, the regulations of the New York Court of Appeals detailing the kind of law school from which a graduate degree will qualify an applicant to take the state bar examination. Such an applicant must be a graduate of an “approved law school,” to wit, one whose programs are registered with and approved by the New York State Education Department or one which is approved by the New York State Education Department or one which is approved by the American Bar Association and is determined by the court to have maintained standards not lower than the Department’s requirements. The regulations specify that, in order to be approved, a law school must require “the successful completion” of not less than 1152 classroom periods of 50 minutes each. In defining “successful completion” the regulations specify that complete credit for a period in which one or more failures shall have occurred “shall not be given until passing grades in the failed subjects have been earned, or sub-stituid courses successfully completed, or unless the failures be compensated by a sufficiently high average . . . under the regulations established by the school of law in which the applicant is registered.” Although the regulations do not say in terms that written examinations are to be used in determining passing or failure, the 1970 order and opinion of the Court of Appeals on the application of certain law schools to be relieved of this requirement on the occasion of student revulsion to the invasion of Cambodia, In Matter of Rules of Court of Appeals for Admission of Attorneys and Counselors at Law, 29 N.Y.2d 653, 324 N.Y.S.2d 949, 274 N.E.2d 440 (1970), leave no doubt these are required, save for the exception recognized by the American Association of Law Schools for cases “where academic credit has been earned by substantial written work, as in moot court, drafting, research, or seminars.” Plaintiffs say that if the state requires the passing of written examinations in order for students to be eligible to take the state bar examinations as a result of law school study rather than law office work, the administration of the law school examination system is as much “state action” as the administration of the state bar examinations themselves. And here they point to our holding in Coleman v. Wagner College, supra, 429 F.2d 1120, that as a result of the enactment of § 6450 of the Education Law requiring New York colleges to adopt regulations for the maintenance of public order on their campuses and file them with state authorities, actions of the colleges under such regulations might be (or, in the writer’s view, were.) state action, despite our contrary holding with respect to the discipline of the liberal arts students at Alfred University before § 6450 was enacted.

We think the present case is fairly distinguishable from Coleman. For one thing, plaintiffs’ argument proves too much. The regulations of the Court of Appeals apply to law schools not only in New York but throughout the land. If Brooklyn Law School is acting under color of New York law because it gives written examinations in order to meet the requirements of the Court of Appeals for taking the New York bar examinations, Harvard, Yale, Chicago and Stanford are doing so in equal measure — a state of affairs the officers of these institutions would doubtless find surprising. A further point of distinction is that the Court of Appeals was requiring only what the law schools had been doing for generations and, acting through their own professional organization, had decided they should do. Beyond this, and perhaps most important, Brooklyn Law School’s giving of examinations has none of the symbolic character of the disciplinary Rules and Regulations of Wagner College which loudly announced that they had been adopted in accordance with the newly enacted statute. See Developments in the Law-Academic Freedom, supra, 81 Harv.L.Rev. at 1058-60. No student could reasonably think that in giving and grading examinations, Brooklyn Law School was acting as an arm of New York State. While legitimate public belief is scarcely enough to determine that the acts of an avowedly private institution are state action, it is a factor to be weighed in the scales — as was the existence of the deputy sheriff’s badge in Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964).

The judgment dismissing the complaint for lack of federal jurisdiction is affirmed.

      . Although the complaint asserted other bases of jurisdiction, it is apparent that all hinge on the case’s coming within 42 U.S.C. § 1983 and its jurisdictional implementation, 28 U.S.C. § 1343(3). Plaintiffs have not contended otherwise on this appeal.

      . The Board, created in 1784, is officially, and confusingly, known as the University of the State of New York, Education Law § 201. As that term is used in ordinary speech, this is precisely what the Board of Regents is not. As stated in an introductory note to the official compilation of the Education Law, Graves, Development of the Education Law in New York, p. xiii, “The term ‘university’ was not used to denote a university in the present day sense, but simply a corporation authorized to charter and control institutions of higher and of secondary education established in the state.” Public instruction began eleven years later, Laws 1795, c. 75. New York was rather late in entering the field of public higher education. Eor many years this was only on a specialized basis. The State University of New York, including certain existing state institutions and others that might be established or acquired, was created by Laws 1948, c. 695. Admittedly Brooklyn Law School is not a part of the State University.

      . Former Parts 521 through 529 of the Rules of the New York Court of Appeals were deleted effective September 1, 1972. They reappear in substantially similar form in current Part 520.

      . Together with their answer to the complaint, defendants moved for dismissal for lack of jurisdiction or, in the alternative, for summary judgment. The supporting papers challenged plaintiffs’ essential factual claims, and defendants urge that if we should disagree with the district court’s holding of lack of state action, we should direct that summary judgment be granted in their favor. In view of our disposition of the appeal, we do not reach this request.

      . For reasons stated in tlie affidavit of the Assistant Dean, the Law School chooses not to maintain anonymity with respect to grading of examinations.

      . If anything, these point in the opposite direction. See Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), which sharply qualified Amalgamated Food Employees Union Local v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), discussed in Powe v. Miles, supra, 407 F.2d at 80.

      . The other is four years study in a law office or offices. Rules of the Court of Appeals, § 520.5.

      . Here also the tendency has been somewhat contrary to plaintiffs’ claim. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).

      . For the writer of this opinion the appropriate verb is “did.” See 427 F.2d at 1126-27.

      . Plaintiffs point also to the adoption in 1966 by the City of § D51-66.10 of the Administrative Code of the City of New York, and by the New York Legislature of Laws 1966, c. 584, both retroactively validating auction sales restricted to nonprofit associations, which, they say were intended to block a taxpayer’s suit, Hama Realty Co. v. City of New York and Brooklyn Law School, 52 Misc.2d 192, 274 N.Y.S.2d 392 (Sup.Ct. New York Co. 1966), aff’d 27 A.D.2d 988, 281 N.Y.S.2d 974 (1st Dept. 1967), seeking to set aside the sale to Brooklyn Law School, and to a 1968 consent by the New York City Board of Estimate to the Law School’s selling some 60% of the site for $750,000, the same price it had paid for the whole.

      . See Friendly, Tlie Dartmouth College Case and the Public-Private Penumbra 24-29 (1969) ; Developments in the Law-Academic Freedom, supra, 81 Harv.L. Rev. at 1061.

      . As the writer has suggested elsewhere, see note 11 supra, at 26, there is a peculiar oifensiveness when citizens are required to pay taxes “for purposes whence they or their children are excluded.” See also Powe v. Miles, supra, 407 F.2d at 82.


author: GIBSON, Circuit Judge.

text:
    S. W. NOGGLE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1678.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 11, 1973.
    Decided May 1, 1973.
    Harry L. Brovvne, Kansas City, Mo., for petitioner.
    M. Namrow, Atty., N. L. R. B., Washington, D. C., for respondent.
    Before GIBSON, BRIGHT and ROSS, Circuit Judges.
   GIBSON, Circuit Judge.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. The Board’s Decision and Order are reported at 199 NLRB No. 107.

The S.W. Noggle Company was found by the NLRB to have committed an unfair labor practice in violation of §§ 8(a) . (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by threatening to discipline and later by the discharge of Mike Masonbrink. It is the contention of the General Counsel that the employer discharged Mason-brink because he advocated that the employees go out on strike for a new contract.

The Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local No. 955, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), had represented a unit consisting of the employer’s ware-housemen and drivers for 30 years. On September 30, 1971, the three-year contract between the employer and the Union expired. Negotiations were in progress at the time of the events with which this action is concerned.

Masonbrink was a part-time employee of the Noggle Company from October 1969 to May 1970 when he enlisted in the Coast Guard. He returned from this military service in June 1971. At the end of June, through the efforts of his sister, Vickie Harrison, an order clerk for Noggle, he was rehired on a full time basis. He worked as a truck driver until mid-October when he requested and received a transfer to the warehouse. He worked in the warehouse about six weeks, until his discharge on December 1, 1971.

During the period when he was employed in the warehouse the Trial Examiner found that Masonbrink “was far from being a model employee.” On several occasions he refused to perform his duties as he was instructed to do although he stated that he later would go ahead and do them. He was reported by Bramer, the leadman, to Thomas Turner, the general manager for Noggle, who in turn complained of his conduct to the Union.

Several witnesses testified that they had heard Mansonbrink state that he would like to draw “rocking chair money” which was explained as meaning state unemployment compensation. Ma-sonbrink did not deny this but only stated that he could not remember saying it.

On November 15, at a meeting between the unit employees and several union representatives Masonbrink strongly advocated that the Union strike the company because of its failure to negotiate a new collective bargaining agreement. Leadman Bramer reported Masonbrink’s position to General Manager Turner. Turner spoke to Vickie Harrison on about November 29, and told her, “Vickie, we’re going to have to do something about Mike. He has the men upset about going out on strike.” When she replied that it was because the company had not negotiated a new contract yet he responded, “I can’t help that. He still has to get his orders out.” The Trial Examiner found that this was a threat to discipline Masonbrink.

Two days later, after Vickie had spoken to her brother concerning this conversation, Masonbrink called to Turner while he was in the warehouse, and told him that if he had anything to say to him he should do so directly and not to tell his sister. Turner made no response to this. At this point the stories of the parties diverge. Masonbrink states that they then began to discuss the performance of his work. Turner stated that he asked Masonbrink to fill a rush order and that Masonbrink refused because he was already working on another order. One of the other warehousemen heard this conversation and his version, while not identical to that of Turner’s tends to support Turner’s version. Both Mason-brink and Turner testified that Mason-brink said that if Turner thought he could do a better job he could do it himself, and that Turner stated to Mason-brink that if he did not like working there he could quit. Masonbrink admits that he told Turner that if he did not like the way he was doing his job Turner could fire him. This challenge was repeated several times and finally Turner did fire Masonbrink.

The sole issue on this appeal is a factual one, whether the finding of the Trial Examiner and the Board that Mason-brink was discharged for his advocacy of a strike was supported by substantial evidence in the whole record. 29 U.S.C. § 160(e). ■ The Supreme Court has defined “substantial evidence” as:

“ ‘. . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 '[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-621, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (footnotes omitted).

Considering first the finding by the Board that Turner had not requested Masonbrink to fill a rush order and been refused, we hold that this finding is not supported by substantial evidence on the whole record. The issue was decided by the Trial Examiner as a matter of credibility, balancing the testimony of Turner that he had told Masonbrink to fill the order and been refused against Masonbrink’s denial of the incident and testimony that the conversation concerned only his work performance generally. The Trial Examiner appeared to ignore the testimony of Ralph Roberts, one of the other warehousemen, to the effect that he had heard the conversation between Turner and Masonbrink, and that he had heard Turner tell Masonbrink to fill an order. Although Roberts did not testify that Masonbrink had openly refused to comply with the instruction, Robert’s version of the confrontation is more consistent with Turner’s version than was Masonbrink’s in that Mason-brink denied that he was even told to fill an order.

Turning next to the statement made by Turner to Vickie Harrison with regard to Masonbrink’s advocacy of striking, the Examiner failed to fully examine this incident. Beyond reciting the facts of the statement and the bare finding that “I also find that Turner’s statement to Vickie constituted a violation of Section 8(a)(1) of the Act” there was no analysis of the statement. Turner denied that it was a threat to discharge Masonbrink. He stated that he wanted Vickie to see if she could get Mike to settle down. In view of the fact that Vickie Harrison had been instrumental in getting Masonbrink the job, and the cordial relationship which obviously existed between the small group of employees and the management, this is not an unlikely explanation for the conversation. From the record of this conversation it would be erroneous to draw the conclusion that Turner was threatening to fire Masonbrink for advocating a strike.

In view of the fact that Masonbrink had been employed in the warehouse only a short time, and that after the one occasion when a complaint had been made of Masonbrink’s sub-par performance Turner had promptly notified the Union, this record cannot support the finding by the Examiner that Turner had “put up with quite a bit” or condoned the prior misconduct of Masonbrink. This finding appears incredible. By employing such reverse logic, the mere condoning of inferior work, would give the employee a shield against dismissal for cause.

Even without the refusal by Masonbrink to fill the order on the day of his discharge, the record does not support the finding that he was not discharged for cause but for his union activities. It is clear that he initiated the confrontation with Turner. It is further undisputed that he several times challenged Turner to discharge him if Turner did not like the way he did his work, indicating that he would not even attempt to meet the standards which his employer would expect. This sort of defiant attitude by employees is not protected by either a Union shield or the National Labor Relations Act.

Considering the record as a whole, it is clear that the finding of a discriminatory discharge of this hostile and contentious employee is not supported by substantial evidence. Accordingly, the Board’s Order which required his reinstatement with back pay will not be enforced.

Enforcement denied.

      . Of course, an employee, absent a protective agreement, may be discharged with or without cause so long as it is not for a reason prohibited by the National Labor Relations Act.
      “It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer’s policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatever, or for no reason, so long as the motivation is not violative of the Act.” NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965).
      See also NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972) (cases cited at n. 4).


author: MULLIGAN, Circuit Judge: FEINBERG, Circuit Judge

text:
    UNITED STATES of America ex rel. Francis J. SLEDJESKI, Petitioner-Appellant, v. COMMANDING OFFICER, ARMED FORCES or the Secretary of the Navy, or his Agents or Servants or the Commandant of the Marine Corps or his Agents and/or Servants, Commanding General Fourth Marine Division or his designee, Respondents-Appellees.
    No. 474, Docket 72-1407.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 22, 1973.
    Decided May 3, 1973.

      Stephen M. Seelig, Stamford, Conn., for petitioner-appellant.
    Peter A. Clark, Asst. U. S. Atty., D. of Conn., New Haven, Conn. (Stewart H. Jones, U. S. Atty., D. Conn., New Haven, Conn., of counsel), for respondents-appellees.
    Before FEINBERG, MULLIGAN and TIMBERS, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from the denial of a petition for habeas corpus and for in-junctive relief from an order assigning Private Francis Sledjeski, a Marine Corps Reservist, to involuntary active duty. Petitioner’s motion for an order to show cause was filed on December 27, 1971 and amendments to the petition were filed on December 31, 1971 and January 12,1972. After hearings held on January 3 and 4, the Hon. Robert C. Zampano, District Court Judge for the District of Connecticut, denied injunctive and ha-beas corpus relief on January 27, 1972 in a memorandum decision (336 F.Supp. 987, as supplemented by order of May 17, 1972) and judgment was entered dismissing the action on the merits. At a hearing in Judge Zampano’s chambers on March 6, 1972, both sides agreed to a stay pending appeal and an order to that effect was entered on May 17, 1972. Remanded.

Sledjeski is a member of the Marine Corps Reserve in Hartford, Connecticut. He enlisted on January 3, 1966 and had served about five and one-half years of his six-year enlistment at the time of the incidents to be related. Sledjeski missed his annual training duty in the summer of 1971 and further skipped drills in September and October 1971, proffering a bogus phone call and forged letters from a physician, as a medical excuse for the missed drills. Sledjeski does not deny these contentions. On November 2, 1971 his Commanding Officer notified him by letter that due to his deliberate and planned non-participation, he was being processed for involuntary assignment for 18 months active duty. The third paragraph of the letter provided:

3. You are advised that you have a right to make a statement for inclusion in these proceedings. If you wish to make a statement, do so in the space provided on the enclosed endorsement form. If you do not wish to do so, check the appropriate block on the enclosed form, sign it and return it to me at First Muster on 6 November 1971.

Sledjeski did not complete the form and made no statement. The letter of November 2, 1971 made specific reference to the Marine Corps regulation authorizing his activation (Marine Corps Order P 1001 R. 43 (R.E.S.S.O.P.), Chapter 2). On November 6, 1971 Captain Cormier, appellant’s Commanding Officer, who had signed the November 2 letter, interviewed him at his office in the drill hall. Sledjeski was again advised that he was being processed for involuntary active duty and was asked if he understood his rights in the matter. Sledjeski answered in the affirmative. He was advised that the letters from the doctor were forged, that he would not be permitted to make up the missed drills and that instead he would be recommended for active duty. Sledjeski testified that Captain Cormier asked if he could “review my rights or go over the rights — explain them to me. • And I said no, because I wanted — I didn’t want to say anything because I wanted counsel with me present when he did all of this.” Captain Cormier testified that Sled-jeski said that on advice of counsel he refused to say anything. He stood mute for the rest of the interview.

After the interview Captain Cormier conferred with Major McDonough, the unit’s Inspector-Instructor, and reviewed the appellant’s service record which contained a personal data card filled out by Sledjeski reciting that as of July 10, 1971, he was married but without children. The two officers discussed what hardship problems a married man in this situation would face in service and concluded that if he were reduced in rank from Lance Corporal to Private First Class, his base salary would be in excess of $400 per month which they considered not to be a hardship greater than that incurred by any citizen brought into the Armed Forces. On November 7, 1971 Major McDonough forwarded a letter to the Commandant of the Marine Corps recommending that the appellant be assigned to active duty and orders to that effect were issued on December 17, 1971.

Sledjeski’s position below and on appeal is that he was never told and did not know that he had the right to make a hardship claim for personal considerations until after he had received his papers ordering him to active duty. He urges further that had he known, he would have advised his Commanding Officer that his wife had been discharged from a hospital after leg surgery in December, 1971; that they had a 16 month old child; that his wife could do no heavy work and that she could not support herself if he were called into active military service.

The first question raised on appeal is whether Sledjeski was denied due process of law because of the failure of the Marine Corps to consider and review his hardship claim in accordance with its regulations.

The statute authorizing the involuntary assignment of Reservists to active duty where their participation in the program has been unsatisfactory is 10 U.S.C. § 673a which in subsection (c) provides:

To achieve fair treatment among members of the Ready Reserve who are being considered for active duty under this section, appropriate consideration will be given to—
(1) family responsibilities; and
(2) employment necessary to maintain national health, safety or interest.

The implementing regulation is Marine Corps Order P 1001 R.43, para. 2102(2) (d), which provides:

Commanding officers will carefully investigate all personal hardship problems or physical defects claimed by mandatory participants prior to submission of a recommendation for involuntary active duty. (emphasis added).

Sledjeski is a liquor salesman and there is no claim that his employment is related to the national health, safety or interest.

Sledjeski argues that he was never told that he could make a hardship claim and therefore made none. He states that the November 2 letter which provided him with the opportunity to make a statement was reasonably interpreted by him to mean a statement directed to the incident of the forged letter from the doctor which precipitated his activation. He claims that he also interpreted the questions of his Commanding Officer in the personal interview, to refer only to any statements which would explain or mitigate his behavior in escaping drills and annual training by deceitful means.

The appellant here is hardly a sympathetic figure. His attempts to avoid the service for which he volunteered, were undeniably fraudulent. His “mute act” would further frustrate and discourage questioning as to possible family problems. His contention that his Commanding Officer’s recommendation of November 7 contained an inaccurate statement, to wit, that he had no children, is also unappealing since the personnel file was based on information given by the Reservist and he apparently never advised the Marine Corps of the birth of his child. Moreover, Company Order 1571 R.1C, dated August 16, 1971, posted on the company bulletin board, distributed to available Reservists and read at the August drill, explicitly advised Reservists of their drill obligations and the alternative of active duty in the event of unexcused absence. Reservists were advised of specific grounds for excuse including hardship. We need not reach the question as to whether or not a Reservist must in all cases be advised of his right to make a hardship claim because of a factor here which in our view in any event mandates remand.

The court below made a supplemental finding of fact on May 17, 1972 which it incorporated in the memorandum of decision :

At no time during the call-up procedure did respondents orally advise petitioner that he had a right to make a hardship claim.

In the decision is the further finding:

At no time during this session [Nov. 6, 1971] did Captain Cormier specifically request information with respect to the petitioner’s family, job, or any hardship he might suffer if activated.

336 F.Supp. at 989.

Paragraph 1 of the letter of November 7, 1971 from Captain Cormier and Major McDonough to the Marine Corps Commandant on the other hand states:

As far as can be determined, no personal, family or economic hardship would exist if he is ordered to active duty. When questioned in this regard on 6 November 1971 SLEDJESKI refused to answer questions.

This paragraph is at odds with the findings of fact which indicate that he was never questioned as to hardship. Whether or not appellant’s alleged hardship was significant enough to warrant total or partial relief from involuntary active service is of course a matter for the Marine Corps to decide and not the federal judiciary. All that we can determine is that in the absence of any questioning on the subject, the report of the Marine Corps officers to the Commandant was misleading. The Commandant could have assumed that Sledjeski was questioned explicitly on the subject but this did not occur. We do not believe that “appropriate” consideration was given to his claim.

It is well established that where the Armed Services have failed to follow their own regulations, federal courts have jurisdiction to review. Friedberg v. Resor, 453 F.2d 935 (2d Cir. 1971); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). The court believes, however, that a proper respect for the rights of the petitioner as well as the prerogatives of the military dictate that we treat this habeas corpus petition as one for mandamus (28 U.S.C. § 1361). Smith v. Resor, supra; United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). See also Schatten v. United States, 419 F.2d 187 (6th Cir. 1969). We therefore remand this matter to the District Court to direct the Marine Corps to permit the appellant here to make whatever hardship claim he may have so that it can be given appropriate consideration under applicable Marine Corps Regulations. The stay issued by the District Court in its order of May 17, 1972 shall continue in effect until the foregoing action is completed.

FEINBERG, Circuit Judge

(concurring) :

I agree with the majority opinion as far as it goes, but I do not think it goes far enough. The majority does not reach the question whether a reservist must be advised of his right to make a hardship claim before his failure to do so may be regarded as a waiver. I would hold that such notification is required.

The Government argues that under the applicable Marine Corps regulation the reservist must affirmatively claim hardship and his commanding officer is not required to initiate, sua sponte, an investigation of the individual’s personal circumstances. But in requiring that such a claim be made, the regulation appears to go further than the statute (10 U.S.C. § 673a) and Executive Order on which it is based. Neither the statute nor the Executive Order specifically requires the reservist to “claim” hardship, although both impose on the Marine Corps a duty to give “appropriate” consideration to the possibility of hardship. While it may be that the regulation, in placing on the reservist the burden of making the claim, is both sensible and consistent with the statute and Executive Order, a necessary corollary is that the reservist must be informed of his right to make such a claim. Appellant’s attorney observed at oral argument that even criminal suspects are required to be informed of their legal rights. Though the analogy is obviously not exact, there is force to it. More exact and more forceful, however, is a comparison to the treatment accorded Selective Service registrants, who are routinely notified of their right to request a hardship or other deferment. I see no persuasive reason why a Marine reservist should not be entitled to as much.

As for the specific facts here, the invitation in the November 2, 1971 letter to appellant to make a statement was certainly not adequate notice of his right to claim hardship. It was a reasonable assumption that the statement referred to was to be in explanation of his prior conduct. Moreover, Captain Cormier’s question to Sledjeski at the interview— “Is there anything else you can tell me that would make this look other than it is ?” — was very clearly addressed only to the matter of exculpation. Finally, the Company Order cited in the majority opinion makes no reference to a right to claim hardship when threatened with involuntary activation. It merely describes the standards and procedures for excused absences from drill and advises reservists that they must maintain “satisfactory participation” in scheduled drills or face involuntary activation. Although the order states that “problems” should be made known to platoon or company leaders, this clearly refers to difficulties in attending the drills, not in submitting to activation.

Admittedly, Sledjeski cuts a less than heroic figure, and his “hardship” may perhaps have fallen short of that required. But such a claim would not have been frivolous. Moreover, the procedures involved here are also not worthy of praise, and by holding them to be improper we may ultimately benefit more deserving reservists. See McSweeney v. United States, 338 F.Supp. 350 (N.D.Ohio 1971) (enjoining Marine activation because Commanding Officer did not seek information relevant to hardship and was therefore unaware of relevant hardship circumstances); cf. Winters v. United States, 281 F.Supp. 289, 299-300 (E.D.N.Y.), aff’d, 390 F.2d 879 (2d Cir.) (per curiam), cert. denied, 393 U.S. 896, 89 S.Ct. 188, 21 L.Ed.2d 177 (1968) (upholding Marine activation despite failure to notify reservist of right to claim hardship, but emphasizing that record showed there would have been absolutely no basis for such a claim if one had been made).

At the very least, I would hold that if a reservist must claim hardship when faced with involuntary activation, he must also be clearly advised of his right to make the claim. However, since this appellant is now aware of that right and is to be allowed to exercise it, I concur in the majority disposition.

       The testimony of Captain Cormier lends some credence to the claim : I looked at him and I said, “Is there anything you can tell me that would make this look other than it is,” meaning the fraudulent letters that we had before us, “Is there anything you want to say in your behalf,” and he nodded his head and at that time I became a little curt with him and I said, “Okay, that’s all. Get out.”

      . The statute provides :
      To achieve fair treatment among members of the Ready Reserve who are being considered for active duty under this section, appropriate consideration shall be given to—
      (1) family responsibilities; and
      (2) employment necessary to maintain the national health, safety, or interest.
      10 U.S.C. § 673a (c). The Executive Order merely incorporates the text of the foregoing provision. Executive Order No. 11366, 32 Fed.Reg. 11411 (1967).

      . See Selective Service System Registration Questionnaire, SSLR 2156 :3.

      . In view of the irrelevance of the Company Order to the issue at hand, it is unnecessary to decide whether posting and reading an order that actually mentioned the right to claim hardship would be sufficient notice to a reservist who is subsequently considered for involuntary activation.


author: JONES, Circuit Judge:

text:
    Dorothy Davis BARR, Individually and for and on behalf of all others similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, James D. Hodgson, Secretary, Department of Labor, et al., Defendants-Appellees.
    No. 71-1740.
    United States Court of Appeals, Tenth Circuit.
    April 30, 1973.

      William J. Torrington, Bernalillo, N. M., for plaintiffs-appellants.
    Ronald R. Glancz, Washington, D. C. (L. Patrick Gray, III, Asst. Atty. Gen., Victor R. Ortega, U. S. Atty., Morton Hollander, Thomas J. Press, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee United States.
    R. Baumgartner, Albuquerque, N. M., Atty., for Employment Security Commission of New Mexico, for appellee.
    Before JONES, SETH and BARRETT, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   JONES, Circuit Judge:

The appellant, Dorothy Davis Barr, brought an action in the District Court for the District of New Mexico against the United States and the Secretary of Labor; the Employment Security Commission of New Mexico and its Chairman-Executive Director; and against the Industi'ial Commissioner of the New York State Department of Labor. Federal jurisdiction is asserted under 28 U. S.C.A. § 1346(a)(2), 28 U.S.C.A. § 1361, 42 U.S.C.A. § 1983, 42 U.S.C.A. § 1988, 28 U.S.C.A. §§ 2201-2202, and Rule 57 Fed.Rules Civ.Proc. The appellant undertook to sue individually and on behalf of a class consisting of all other persons similarly situated.

In her complaint the appellant alleged that she had terminated an employment in New York, moved to New Mexico, filed a claim with the Employment Security Commission of New Mexico for unemployment insurance benefits under the laws of New York; that New York had rejected her claim on the ground that she had left her employment voluntarily. She was informed, so it was alleged, that pursuant to the interstate appeals procedure, a new Mexico referee would take and record her testimony and receive any other evidence she desired for transmission to New York where a referee of that state would consider such testimony and evidence with the evidence brought before him by the former employer and make a decision. The appellant asserted that she was entitled to require the employer’s witnesses to be subpoenaed and brought, for the taking of their testimony, from New York to New Mexico where they would be subject to cross-examination by her. She claimed that to follow the procedures as outlined by the two states, although in accordance with the interstate appeals agreements and the pertinent state regulations, would result in a denial of her constitutional due process rights and of the Federal statute which requires that “the Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State . . . includes provision for . opportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment are denied . . .”42 U.S.C.A. § 503(a). Her claim was also predicated upon the statutory requirement that unemployment compensation should not be denied to a claimant or reduced “. . . solely because he files a claim in another State ... or because he resides in another State ... at the time he files a claim for unemployment compensation.” 26 U.S.C.A. § 3304(a) (9) (A). The prayer of the complaint sought “the Court’s order for declaratory relief and an injunction enjoining the Secretary of Labor, the Employment Security of New Mexico, and the New York State Department of Labor, from further failing, refusing, or neglecting to provide claimants with an opportunity for a fair hearing before an impartial tribunal or Court in claimant’s domicile . . . . ”

After obtaining leave to proceed in forma pauperis, the appellant filed a double-barreled motion seeking first, leave to proceed under Rule 23 Fed. Rules Civ.Proc. as the representative of a class consisting of interstate claimants of unemployment compensation benefits, and second, the convening of a three-judge court as provided by 28 U.S.C.A. §§ 2281, 2282 and 2284.

The court granted the motion of New York State Industrial Commissioner to dismiss the complaint for lack of jurisdiction, the motion of Employment Security Commission of New Mexico and its Chairman-Executive Director to dismiss the complaint for failure to state a claim upon which relief could be granted, and the motion of the United States and its Secretary of Labor to dismiss the .complaint for failure to exhaust administrative remedies and failure to state a claim upon which relief could be granted. The court also ordered that the complaint and the cause of action be dismissed with prejudice as to all defendants. This appeal followed.

The New Mexico Commission has filed in this Court a motion reciting that the appellant has ceased to be a resident of New Mexico and seeking the dismissal of the appeal as moot. Attached to the motion is a copy of a writing purporting to be a letter from the appellant to her attorney. In this instrument the writer gives her “home address” as a street number in Helena, Montana. In the letter its writer talks about her “job.” The letter is the sole basis for the assertion of mootness. Assuming the authenticity of the letter which, although not admitted, is not denied, it fails to establish that there has been, in fact, a change of residence. We do not find it necessary to decide whether a change of residence would deprive the appellant of any right afforded her under interstate appeals procedures. She had a right to invoke the jurisdiction of the New Mexico Commission at the time she sought relief from it, and we need not decide whether the right has been lost, however mistaken she was as to the nature and extent of her rights in the interstate proceedings. We suppress the urge to discuss the doctrine of mootness and proceed to the issues which were decided by the district court.

Jurisdictional questions are usually entitled to initial consideration, and are to be noticed whether or not they are raised. The United States was dismissed on the grounds that administrative remedies had not been exhausted and for failure to state a claim upon which relief could be granted. We pretermit consideration of the administrative remedy question. This Court has had no greater success than did the district court in finding any basis for a claim upon which relief could be granted against the United States. It seems clear that there is no jurisdiction over the United States. The appellant asserted jurisdiction under 28 U.S.C.A. § 1346(a)(2), 28 U.S.C.A. § 1361, 42 U.S. C.A. § 1983, 42 U.S.C.A. § 1988, 28 U.S.C.A. §§ 2201-2202 and Rule 57 Fed. Rules Civ.Proc.

Section 1346(a)(2) gives to district courts concurrent jurisdiction with the Court of Claims in a limited amount. The statute is applicable only to money claims against the United States. United States v. Jones, 131 U.S. 1, 19 S.Ct. 669, 33 L.Ed. 90. The district court was correct in its determination that no claim was asserted against the United States upon which relief could be granted, but the complaint might well have been dismissed against it on jurisdictional grounds.

Section 1361 confers jurisdiction “in the nature of mandamus to compel an officer ... of the United States ... to perform a duty owed to the plaintiff.” The functions of the Secretary of Labor in relation to state administration of unemployment compensation laws and regulations are, to the extent the appellant would have the Secretary coerced by the court, discretionary. Mandamus, including the statutory remedy provided by Section 1361, will not lie to direct the manner in which discretionary acts of governmental officials are to be performed nor to direct or influence the exercise of discretion in making such decisions. McQueary v. Laird, 10th Cir. (1971) 449 F.2d 608. No other relief was sought against the Secretary. The district court was correct in its determination that the complaint stated no claim against him upon which relief could be granted.

The Industrial Commissioner of the State of New York was dismissed by the district court for lack of jurisdiction. The decision was correct. Service of process was attempted by certified mail. No authorization for such service is provided by any statute or rule of the United States or of the State of New Mexico. See Rule 4(f) Fed.Rules Civ. Proe.

The complaint named as defendants the New Mexico Employment Security Commission and its Chairman-Executive Director. As to them the complaint was dismissed on the ground that no claim was stated upon which relief could be granted. Although the complaint is not free of ambiguity, it is apparent that the appellant sought to have the New Mexico Commission subpoena witnesses from New York to appear personally before it, to conduct a hearing, to make findings and enter an order against the State of New York for the payment of unemployment compensation to her. As to this position it is enough to say that there is nothing in the law of the United States, of New York or of New Mexico that authorizes such procedure. The interstate appeals procedure permits the taking of testimony before the Commission in the state of a claimant’s residence and the transmitting of such testimony to the state against which the claim is asserted. With this the appellant was not content; but to more she was not entitled.

Only brief consideration need be given to the other statutes upon which the appellant relies. Section 42 U.S.C.A. § 1983 provides a Federal remedy for a denial or deprivation of a federally protected right by a state or state agency. The failure of New Mexico to provide a forum to adjudicate a claim against the state of New York is not within the purview of Section 1983. Reliance upon 42 U.S.C.A. § 1988 is also misplaced. This section does not create rights nor confer jurisdiction. Declaratory judgment relief is made available to Federal litigants by 28 U.S.C.A. §§ 2201-2202 and Rule 57 Fed.Rules Civ. Proc. They do not create jurisdiction.

The district court properly refused to treat this as a class action and properly rejected the application for the convening of a three-judge court.

The judgment of the district court is correct. It is affirmed.


author: JAMES HUNTER, III, Circuit Judge.

text:
    NEW JERSEY COUNTY AND MUNICIPAL COUNCIL #61, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, et al., Appellees, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, et al., Appellants.
    No. 72-1645.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 16, 1972.
    Decided May 4, 1973.

      A. L. Zwerdling, Gen. Counsel, AFSCME AFU-CIO, Zwerdling, Maurer, Diggs & Papp, Washington, D. C., Michael H. Gottesman, Darryl J. Anderson, Bredhoff, Barr, Gottesman, Cohen & Peer, Washington, D. C., for appellants.
    Warren J. Kaps, Stein & Rosen, Englewood Cliffs, N. J., and Seymour Margulies, Jersey City, N. J., for appel-lees.
    Before ALDISERT, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

This is an appeal from a district court judgment and permanent injunction which, inter alia, enjoins appellant American Federation of State, County and Municipal Employees,, AFL-CIO (the international), from maintaining a trusteeship which it had imposed over one of its constituent local unions, Local 1959. Since we find that the district court had no subject matter jurisdiction in this matter, we reverse the judgment and order that the complaint be dismissed. The facts in this case were reviewed at length by Chief Judge Coolahan in his June 20, 1972 opinion, and it is unnecessary to repeat them here.

Appellants have raised several arguments before this court, but the only one which we must consider is whether the district court had jurisdiction to enjoin the international under Title III of the Labor Management Reporting and Disclosure Act of 1959 (“Act” or “LMRDA”), 29 U.S.C. §§ 461-466. Section 302 of that Act, 29 U.S.C. § 462, states in pertinent part:

“Trusteeships shall be established and administered by a labor organization over a subordinate body only in accordance with the constitution and bylaws of the organization which has assumed trusteeship over the subordinate body and for the purpose of . . otherwise carrying out the legitimate objects of such labor organization. (Emphasis added.)

The litigants agree that the international is a “labor organization” as defined in § 3(i) and (j) of the Act, 29 U. S.C. § 402(i) and (j), since it has chartered a small number of local unions which represent employees in the private sector. On the other hand, Local 1959 is not a “labor organization” under the Act because its charter limits its membership exclusively to Hudson County New Jersey public and civil service employees. § 3(e), (i) and (j), 29 U.S.C. § 402(e), (i) and (j). Consequently, the issue which we are required to decide is whether a trusteeship imposed by a parent “labor organization” upon a local which is not a “labor organization” is regulated by the trusteeship provisions of Title III. Appellants argue that the term “subordinate body” was used in Title III interchangeably with the term “subordinate labor organization,” and that the imposition of a trusteeship over Local 1959 is not governed by the Act since Local 1959 is not a “subordinate labor organization” and thus not a “subordinate body” as that term is used in § 302. Appellees disagree with this interpretation and contend instead that Congress meant to distinguish between a “subordinate body” and a “subordinate labor organization.”

In addressing this problem, we first observe that the LMRDA has six titles “dealing with various facets both of internal union affairs and of labor-management relations.” Wirtz v. Bottle Blowers Ass’n., 389 U.S. 463, 469, 88 S.Ct. 643, 647, 19 L.Ed.2d 705 (1968). Putting aside Title III for the moment, our examination of the Act reveals that its other five titles specifically apply only to “labor organizations” and thus do not affect public employee unions. Title I enacts a bill of rights for members of labor organizations; Title II involves reporting by labor organizations, officers and employees of labor organizations and employers; Title IV concerns itself with elections in labor organizations ; Title V provides various safeguards for labor organizations; and Title VI consists of certain miscellaneous provisions. Viewing the Act as a whole, it thus seems that if Congress had intended Title III to regulate the manner in which a trusteeship may be imposed upon a public employee union, it would clearly have said so. This it did not do. Nevertheless, it is true that Title III, alone among the Act’s provisions, sometimes uses the phrase “subordinate body” rather than “labor organization.” Consequently, a section by section examination of Title III is necessary in order to determine whether or not “subordinate body” was meant to include public employee unions.

Title III contains four operative sections, §§ 301 through 304 of the Act, 29 U.S.C. §§ 461-464. Section 301(a), 29 U.S.C. § 461(a), establishes reporting requirements which a “labor organization” must comply with whenever it “assumes trusteeship over any subordinate labor organization.” Public employee unions are not covered by § 301 because, as we have noted, these unions are not “labor organizations” under the Act. Since a principal reason for § 301 is to prevent violations of the substantive trusteeship requirements of §§ 302 and 303, 29 U.S.C. §§ 462 and 463, and to provide information about any possible violation, we agree with appellants that it is unlikely that the range of trusteeships governed by those sections would exceed that which is protected by the reporting provisions of § 301. This is also consistent with the manifest Congressional intent in the other five titles of the Act to exclude public employee unions.

While § 301 indicates that Title III does not regulate trusteeships over public employee unions, § 303 demonstrates even more strongly that this is so. Its heading reads “Unlawful acts relating to labor organizations under trusteeship,” yet the text of § 303(a) ends with a proviso that uses the term “labor organization” for the exact entity that the rest of that section discussed as a “subordinate body.” (Emphasis added.) Plainly, then, Congress used these terms interchangeably in § 303.

The two remaining sections of Title III are §§ 302 and 304, 29 U.S.C. §§ 462 and 464. Section 302, which was quoted in part at the beginning of this opinion, establishes the purposes for which a trusteeship may be imposed, and it is this section which appellees claim was violated when appellants placed Local 1959 under trusteeship. The other section, § 304, deals with procedural aspects of enforcing or challenging a trusteeship. Both of these sections use the term “subordinate body,” and thus appellees argue that there is a distinction between “subordinate body” and “labor organization” or “subordinate labor organization.” We cannot accept this literal interpretation of these two sections. As the Supreme Court has cautioned, labor legislation, and particularly the LMRDA, should not be construed literally but rather “against the background of its legislative history and in the light of the general objectives Congress sought to achieve.” Wirtz v. Bottle Blowers Ass’n., supra at 468, 88 S.Ct. at 646; National Woodwork Mfrs. v. NLRB, 386 U.S. 612, 619, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). Appellees do not discuss the legislative history of the Act, and our examination of this history has revealed nothing to indicate that Congress intended to include public employee unions as subordinate bodies in §§ 302 and 304 while explicitly excluding them from the rest of the Act.

In summary, after considering the legislative history of the LMRDA, its express exclusion of public employee unions from the definition of “labor organization” in §§ 3(e), (i) and (j), its failure to regulate these unions in the other five titles of the Act, the use of the term “subordinate labor organization” in § 301, and the interchangeability of the terms “labor organization” and “subordinate body” in § 303, the only conclusion which we can reasonably reach is that public employee unions are not covered by the phrase “subordinate body” in §§ 302 and 304.

The judgment of the district court is reversed and this case is remanded to the district court so that the complaint may be dismissed in accordance with this opinion.

      . While it appears that the trusteeship in question was imposed only over Local 1959, there existed at the same time an unchartered organization known as New Jersey County and Municipal Council No. 01 which had been dfesigned as the successor of Local 1959. The district court found that Council No. 61 was a viable entity having a de facto existence, and that it and Local 1959 constituted a hybrid organization. Accordingly, all references to Local 1959 in this opinion shall he deemed to include Council No. 61.

      . New Jersey County and Municipal Council No. 61 v. American Fed’n of State, County and Municipal Employees, No. 196-72 (D.C.N.J. June 20, 1972).

      . § 3(i) of the Act provides:
      “(i) ‘Labor organization’ means a labor organization engaged in an industry affecting commerce and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor dis-I>utes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization, other than a State or local central body.”
      § 3(j) of the Act provides in pertinent part:
      “(j) A labor oranization shall be deemed to be engaged in an industry affecting commerce if it—
      (1) is the certified representative of employees under the provisions of the National Labor Relations Act, . or
      (2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce, or . ”

      . Municipal governments are not recognized as employers under the LMRDA, § 3(e) provides in pertinent part:
      “(e) ‘Employer’ means any employer or any group or association of employers engaged in an industry affecting commerce . . . but does not include the United States or any corporation wholly owned by the Government of the United States or any State or political subdivision thereof.”
      Consequently, a union like Local 1959 which represents only municipal employees cannot be a “labor organization” within the meaning of the Act.

      . The term “subordinate body” is not defined in the Act.

      . Sections 305 and 306 of the Act, 29 U.S.C. §§ 465 and 466, are also part of Title III. However, since these sections do not deal with the establishment, maintenance or dissolution of a trusteeship, they have no bearing on this case and will not be discussed further.

      . § 301(a) of the Act provides in pertinent part:
      “(a) Every labor organization which has or assumes trusteeship over any subordinate labor organization shall file within thirty days after the imposition of any such trusteeship, and semiannually thereafter, a report . . . containing the following information: (1) the name and address of the subordinate organization; (2) the date of establishing the trusteeship; (3) a detailed statement of the reason or reasons for establishing or continuing the trusteeship; and (4) the nature and extent of participation by the membership of the subordinate organization in the selection of delegates to represent such organization. . The initial report shall also include a full and complete account of the financial condition of such subordinate organization as of the time trusteeship was assumed over it. During the continuance of a trusteeship the labor organization which has assumed trusteeship over a subordinate labor organization shall file on behalf of the subordinate labor organization the annual financial report required by section 431 (b) of this title. . . . ”

      . § 303 of the Act provides;
      “Unlawful acts relating to labor organization under trusteeship
      “(a) During any period when a subordinate body of a labor organization is in trusteeship, it shall be unlawful (1) to count the vote of delegates from such body in any convention or election of officers of the labor organization unless the delegates have been chosen by secret ballot in an election in which all the members in good standing of such subordinate body were eligible to participate, or (2) to transfer to such organization any current receipts or other funds of the subordinate body except the normal per capita tax and assessments payable by subordinate bodies not in trusteeship : Provided, That nothing herein contained shall prevent the distribution of the assets of a labor organization in accordance with its constitution and bylaws upon the bona fide dissolution thereof.” (Emphasis added.)