author: PER CURIAM.

text:
    Edward Joseph X. CHAPMAN, Plaintiff-Appellant, v. Richard KLEINDIENST et al., Defendants-Appellees.
    No. 74-1218.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 20, 1974.
    Decided Dec. 16, 1974.

      Diane Crawford Geraghty, Northwestern Legal Assistance, Chicago, Ill., for plaintiff-appellant.
    Henry A. Schwarz, U. S. Atty., William C. Evers, III, Asst. U. S. Atty., East St. Louis, Ill., for defendants-appellees.
    Before HASTINGS, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges.
   PER CURIAM.

Edward Joseph X. Chapman, a prisoner at Marion Federal Penitentiary, brought this pro se civil rights action against various federal prison officials as a result of his extended confinement in punitive segregation at the institution. Chapman alleged that his placement in segregation for his refusal to handle pork, motivated by his observance of what he contends is a basic tenet of his Black Muslim religion, during kitchen clean-up duties violated his First Amendment free exercise rights. He further claimed that he was denied procedural due process at the hearing that preceded his segregation and that the resulting segregation for nine months constituted cruel and unusual punishment. Chapman sought, in substance, a mandatory injunction ordering his return to the general prison population, an injunction restraining defendants from interfering with his religious freedom, actual and punitive damages, a declaratory judgment, and a writ of mandamus.

Chapman’s request for the appointment of counsel was denied by District Judge Foreman at the commencement of the one-day hearing held on October 9, 1973. Chapman called two witnesses, James Tippy, a Marion caseworker, and James Culley, who had served on the Adjustment Committee that ordered Chapman placed in segregation. At the close of Culley’s testimony, Judge Foreman recessed the case and indicated that he would hear no more testimony. When Chapman protested that he wished to call another witness, Keith X. Ferres, to testify as to the tenets of the Muslim faith, Judge Foreman indicated that Chapman • could submit an affidavit instead, but that he, Judge Foreman, would determine whether additional testimony would be necessary.

On December 17, 1973, the district court entered judgment for the defendants, holding Chapman’s claim for a mandatory injunction moot because he had been released from segregation on July 23, 1973. The court further concluded that Chapman had failed to prove any of the allegations of his complaint.

On this appeal, Chapman, who is now represented by counsel, argues that the district court erred in the following respects: 1) even though Chapman had been released from segregation, his claim for injunctive relief was not thereby mooted; 2) the district judge abused his discretion in not appointing trial counsel for Chapman; 3) the district court improperly terminated the case prior to the close of Chapman’s presentation; 4) Chapman had in fact made out a prima facie case on each of the three alleged constitutional violations; and 5) several evidentiary rulings were erroneous. For the following reasons, we reverse and remand for a new trial.

I.

Insofar as the ruling that Chapman’s release from segregation rendered his claim for a mandatory injunction ordering release moot is concerned, the trial judge was clearly correct. We do not read his order as holding that Chapman’s release mooted his claims for monetary, declaratory, or prohibitory injunctive relief. The release could not have had those effects; the recovery of damages for the alleged violations of his constitutional rights does not turn on his continued presence in segregation. Nor would his release render moot his request for a declaratory judgment that the acts of these prison officials were unconstitutional, for an injunction prohibiting further such actions, and for further appropriate relief, including the expurgation of his prison record. As long as Chapman remains at Marion, and as long as he may again be required to handle pork, or may again go before the Adjustment Committee, the possibility of the reoccurrence of these issues satisfies the “actual controversy” requirement of the Declaratory Judgments Act, 28 U.S.C. § 2201, and the “case or controversy” requirement of Article III.

In addition, Chapman’s complaint was drafted as a class action, brought on behalf of all Black Muslims at Marion, some of whom, he alleges, are in segregation as a result of the same First Amendment violations of which Chapman complains. Judge Foreman failed to conduct the investigation and make the findings of the appropriateness of the class action required by Fed.R.Civ.P. 23(c). If Chapman’s contentions of a uniform institutional policy applying to all Black Muslims are correct, this is another compelling reason for finding that the case is not moot and deciding these questions at this time. See Workman v. Mitchell, 502 F.2d 1201, 1207-1208 (9th Cir. 1974).

II.

Chapman next argues that the trial judge abused his discretion in not granting Chapman’s motion for appointment of counsel, once it became clear that he had a reasonable chance of succeeding in this action. Without determining whether Judge Foreman abused his discretion in this case, we have concluded that on remand it would be appropriate for Chapman to have the assistance of counsel. A staff attorney of the Northwestern Legal Assistance Clinic, which represented Chapman before us, has indicated both the willingness and the financial capacity to continue this representation. Since she has already demonstrated her competence and familiarity with the record, we direct the trial judge to make the necessary request pursuant to 28 U.S.C. § 1915(d).

III.

After Chapman had completed his examination of his first two witnesses, the trial judge stated:

“The Court will continue this matter generally at this time. I’ll take the matter under advisement with regard to the evidence that is presented and with regard to the other matters that are to be submitted to me and I’ll make a ruling as to whether or not, in my opinion, additional evidence is needed. I do not have any more time available for this matter at this time.” Tr. 71.

Chapman was permitted to submit the affidavit of Keith X. Ferres, his expert on the Black Muslim religion, but was never subsequently allowed to call any more witnesses.

Termination of the proceedings in this manner was improper since Chapman had not finished presenting his case. Judge Foreman’s ultimate ruling that Chapman had not proved the allegations of his complaint was not consistent with the implicit understanding that, should he decide additional evidence was necessary, he would permit Chapman to continue with the presentation of his case.

The defendants make much of the fact that Chapman stated that he had only one more witness, Keith X. Ferres, that Ferres was to testify only as to the tenets of the Muslim faith, and that there was no dispute over this issue. Judge Foreman decided to terminate the proceedings, however, before Chapman made this statement. See Tr. at 71. In truth, Chapman may have desired to call several additional witnesses, including himself, to the stand, but concluded that, in light of the judge’s statement, he could hope that Judge Foreman would hear at least one more witness.

In addition, Chapman indicated that he might wish to call other witnesses for “rebuttal” testimony. Tr. at 74. While an attorney would refer to testimony as “rebuttal” only if it were to be presented after the defendants’ case, Chapman may have meant simply additional witnesses. Judge Foreman so interpreted this reference; he stated:

“If you desire to submit to the Court an affidavit of the other witnesses or witness — Mr. Ferres, that was here today, you may do so.” Tr. at 74.

Thus, we cannot be certain that, but for Judge Foreman’s premature termination of Chapman’s presentation, the plaintiff would not have introduced the evidence that Judge Foreman concluded was lacking to prove the allegations of the complaint.

While we sympathize with the trial judge’s desire to have this case tried speedily, since we also are conscious of the number of prisoner cases on his docket, nevertheless the procedure used 'in this case is unacceptable. The fact that the trial judge had not scheduled additional time for this matter is plainly not a sufficient justification for aborting the trial before the plaintiff had completed his case.

IV.

Chapman contends that even on this truncated record Judge Foreman erred in concluding that he had not proved the allegations of his complaint.

With respect to Chapman’s claim that he was punished for his observance of a basic tenet of his Black Muslim faith, we agree that he presented substantial evidence of interference with First Amendment rights and that judgment should not have been entered prior to hearing the defendant’s evidence.

The defendants, in their brief, acknowledge that Chapman introduced proof that “(1) his religion forbids touching pork; (2) he was called upon to handle pork; (3) he was placed in segregation for refusing to obey an order by a supervisor, and that order was to handle pork. . . . ” Appellees’ Brief at 19. Having established this interference with his First Amendment right, and having tendered additional evidence by an expert in the Muslim religion, Chapman was entitled to have the defendants come forth with their explanation of the reasons for the requirement that he han-die pork. It was error for Judge Foreman to enter judgment for defendants on this issue. See Walker v. Blackwell, 411 F.2d 23, 25 (5th Cir. 1969); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995, 1000 (1969); Cooper v. Pate, 382 F.2d 518, 521 (7th Cir. 1967).

We do not agree with Chapman, however, that Judge Foreman erred in granting judgment for the defendants on his procedural due process claim. Chapman contends that he was not afforded the procedural protections we described in United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973), cert. denied, Gutierrez v. Department of Public Safety, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102. Although his segregation hearing was held on October 11, 1972, prior to our decision in Miller, he argues that we should apply that decision retroactively. In both Adams v. Carlson, 488 F.2d 619, 624-629 (7th Cir. 1973), and Thomas v. Pate, 493 F.2d 151, 161 n. 6 (7th Cir. 1974), we did so apply the Miller standards. The Supreme Court, however, granted certiorari in Thomas, vacated the judgment, and remanded the case for a reconsideration of the retroactivity issue in light of its decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); see Cannon v. Thomas, - U.S. -, 95 S.Ct. 288, 42 L.Ed.2d 39 (1974). In Wolff, the Supreme Court stated that due process requirements in prison disciplinary proceedings are not to be applied retroactively. 94 S.Ct. at 2983. Thus, we may not apply the Miller standards in Chapman’s case.

Instead, the procedures used in Chapman’s segregation hearing must be judged against the due process standards in force at that time, the standards set forth in Adams v. Pate, 445 F.2d 105 (7th Cir. 1971). In Adams we stated that procedural due process was complied with when “the prisoner is confronted with the accusation against him and afforded a reasonable opportunity to deny the accusation or explain his actions.” 445 F.2d at 108. Chapman’s segregation was ordered only after compliance with these procedures. Thus, Chapman’s claim for damages and for the expurgation of his records on this basis was properly denied. As there is no evidence that Marion officials are not complying with Miller at this time, the entry of a prohibitory injunction would have been improper.

Chapman finally contends that Judge Foreman erred in entering judgment for the defendants on Chapman’s claim that his nine-month segregation was in violation of the Eight Amendment prohibition of cruel and unusual punishment. The essence of his claim is that a nine-month segregation period was disproportionate to the offense he allegedly committed, even assuming that prison officials could properly punish his refusal to handle pork.

In Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973), we recognized that “punishment which is disproportionate to the offense committed constitutes cruel and unusual punishment . . . .” 488 F.2d at 635-636. See also Haines v. Kerner, 492 F.2d 937, 942 (7th Cir. 1974). But, we noted that such a determination in the individual case must turn of necessity on an assessment of all the facts and circumstances surrounding the segregation decision, including such matters as the disciplinary offense involved, the prisoner’s disciplinary record, and the offense for which the prisoner was originally sentenced.

It is precisely these facts that are missing from the record of this case. We do not know whether the threat Chapman admits making influenced the segregation length. We know nothing of any prior disciplinary problems or of any of the myriad factors that may have been and could properly be considered in setting the segregation term. The trial judge made no findings of fact and, as noted in Part III, supra, Chapman was prevented from completely presenting his case. For these reasons, although we express no opinion on the merits of the Eighth Amendment contention, Chapman is not foreclosed from pursuing this claim on remand. Of course, if Chapman should be successful in demonstrating that the sole reason for his segregation was his refusal to obey an order that violated his First Amendment rights, there would be no occasion to reach the Eight Amendment claim. For in that event the punishment would be entirely impermissible and no question of disproportionality would remain.

V.

In summary, we hold that Judge Foreman erred in truncating Chapman’s presentation of his case, and that the facts in the record made out a prima facie ease of a First Amendment violation. On remand, Chapman may pursue both his religious freedom violation and his cruel and unusual punishment claims.

We note that, although Chapman’s complaint contained what must be construed as a demand for a jury trial on the legal issues presented, Judge Foreman conducted the October 9, 1973, hearing without a jury. While we agree that burying the jury demand in the complaint is not the best practice, the court and its staff have a special responsibility to scrutinize carefully pro se complaints for just such infirmities. If Judge Foreman was aware of the jury demand but decided to hear the case himself first because of the prayer for injunctive in addition to damage relief, he clearly erred. The Supreme Court decisions in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-511, 79 S.Ct. 948, 3 L.Ed.2d 988, and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472-473, 82 S.Ct. 894, 8 L.Ed.2d 44, require the presentation of the legal claims to the jury prior to any factual resolution by the trial judge on the equitable claims. The fact that Chapman also sought a declaratory judgment does not affect this requirement.

It is more likely, however, that Judge Foreman was simply unaware of the jury demand; Chapman raised no objection when the hearing was held without a jury. Normally, the failure to object under such circumstances would constitute a waiver of the right to a jury trial. See National Family Insurance Company v. Exchange National Bank of Chicago, 474 F.2d 237, 241 (7th Cir. 1973), cert. denied, 414 U.S. 825, 94 S.Ct. 129, 38 L.Ed.2d 59; Smith v. Cushman Motor Works, 178 F.2d 953, 954 (8th Cir. 1950). Here, however, Chapman, who was not represented by counsel, may not have been aware of his right to object to a hearing to the court. Thus, on remand, Chapman should be allowed a jury trial unless one is formally waived pursuant to Fed.R.Civ.P. 39(a).

The judgment is accordingly vacated and the case is remanded for further proceedings.

      . Attorney General Richard G. Kleindienst; Norman A. Carlson, Director of the Federal Bureau of Prisons; George W. Pickett, Charles Fenton, and Captain Earl Buzzard, Marion officials; and Frederick Siber, Director of Chaplaincy Services, Federal Bureau of Prisons.

      . In addition, if it is found that Chapman was wrongfully placed in segregation, expurgation of the record of this punishment, would seem appropriate to protect Chapman from future, prejudice in obtaining parole, work assignments, and the transfer to a prison nearer his home. Chapman included in his complaint a general prayer for all appropriate relief. It is axiomatic that pro se prison complaints will be held to a less stringent standard than pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652; Bryant v. Harris, 465 F.2d 365, 366 (7th Cir. 1972).

      . The defendants suggest opaquely that Judge Foreman’s mootness determination applied to the entire request for injunctive relief. Ap-pellees’ Brief at 5.

      . Defendants have argued here that Chapman may not maintain his damage action because of the doctrine of “official immunity.” Judge Foreman did not rule on this defense below; it is unclear that it was presented to him, although the defendants did cryptically state in their answer that “Inmates of federal penitentiaries are not entitled to monetary damages for violation of their First Amendment rights, if such a violation occurred.” In any event, the defense of official immunity, because it is not an absolute bar to damage recoveries, requires a full hearing and concomitant findings of fact by the trial judge. On remand, which we order infra, the defendants may argue that the circumstances in which damages may be recovered against federal officials for official acts first enunciated in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, and further developed in our decisions in Scherer v. Brennan, 379 F.2d 609 (7th Cir. 1967), cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 666; Skolnick v. Campbell, 398 F.2d 23 (7th Cir. 1968); and Scherer v. Morrow, 401 F.2d 204 (7th Cir. 1968), cert. denied, 393 U.S. 1084, 89 S.Ct. 868, 21 L.Ed.2d 777, have not been demonstrated by Chapman.

      . The federal courts have concluded that prisoner complaints were not moot under similar circumstances in West v. Cunningham, 456 F.2d 1264, 1265-1266 (4th Cir. 1972); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995, 997 n. 1 (1969); Jackson v. Bishop, 404 F.2d 571, 575-576 n. 5 (8th Cir. 1968) (Blackmun, J.); and Pierce v. LaVallee, 293 F.2d 233, 234 (2d Cir. 1961).

      . We have previously held that the decision whether to request counsel to represent an indigent in a civil case, as authorized by 28 U.S.C. § 1915(d), “rests in the sound discretion of district courts unless denial would result in fundamental unfairness impinging on due process rights.” LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967). See also Ehrlich v. Van Epps, 428 F.2d 363, 364 (7th Cir. 1970). Chapman would have us adopt the standard set forth in Dreyer v. Jalet, 349 F.Supp. 452, 486 (S.D.Tex.1972), aff'd mem., 479 F.2d 1044 (5th Cir. 1973):
      “[I]f a civil action brought by an indigent acting pro se, including prison inmates, has merit requiring an evidentiary hearing, then counsel should be appointed to properly present the claim.”

        See Peterson v. Nadler, 452 F.2d 754, 757-758 (8th Cir. 1971); Chubbs v. City of New York, 324 F.Supp. 1183, 1191 (E.D.N.Y.1971); cf. United States v. Simpson, 141 U.S.App.D.C. 8, 436 F.2d 162, 167-170 (1970). These cases discuss the highly complex institutional and financial considerations posed in a request for counsel by the indigent civil litigant. We need not, however, decide this important question in this case.

      . Our ruling herein does not in any way interfere with the sound discretion of a trial judge to limit the number of witnesses that may appear to present essentially cumulative evidence. See Loux v. United States, 389 F.2d 911, 917 (9th Cir. 1968), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135. Such was clearly not the basis of Judge Foreman’s actions.

      . There is some evidence in the record tnat Chapman’s segregation may have resulted in part from a threat made to the prison officer who ordered him to handle pork. Chapman admits saying that “ ‘Allah (God) might might come to his defense and blow (Mr. Brown) him through an oven’ as he allegedly did a previous prison oppressor of plaintiff.” Complaint Paragraph 16(d). The Incident Report filed by Brown, however, stated the charge as “Failing to perform work as instructed by a supervisor,” a violation of Code No. 303. Judge Foreman, in entering judgment for defendants, made no finding that the threat was the real reason for the segregation, instead of the refusal to handle pork. In its present incomplete posture, the record strongly indicates that Chapman was punished at least in part for his refusal to clean off the food carts.

      . Because of our disposition of his other contentions, it is unnecessary for us to consider Chapman’s allegations concerning the trial judge’s evidentiary rulings.

      . See Complaint Paragraph 34(b)(7).

      . See 5 J. Moore, Federal Practice j[ 38.40, at 328.1-328.2 (2d ed. 1974).

      . Beacon Theatres, Inc. v. Westover, 358 U.S. 500, 504-505, 79 S.Ct 948, 3 L.Ed.2d 988.


source: Caselaw Access Project

license: Public Domain

text:
    FRUEHAUF CORPORATION et al., Petitioners, v. Thomas P. THORNTON, United States District Judge for the Eastern District of Michigan, Respondent.
    No. 74-2089.
    United States Court of Appeals, Sixth Circuit.
    Oct. 10, 1974.
    John L. King, Berry, Moorman, King, Lott & Cook, Detroit, Mich., Gerald C. Risner, William A. Barnett, Chicago, 111., for petitioners.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., for respondent.
    Before MILLER, LIVELY and EN-GEL, Circuit Judges.
   Fruehauf Corporation, William E. Grace and Robert D. Rowan, have moved this Court to stay an order of the United States District Court for the Eastern District of Michigan, Southern Division, dated September 13, 1974, entered in the case of United States of America, Plaintiff, v. Fruehauf Corporation, Robert D. Rowan and William E. Grace, Defendants, being a criminal conspiracy case pending in said court, setting the trial of the criminal case for October 29, 1974. The specific request is that the Court stay the said order until this Court shall issue its final order granting or denying the petitioners’ petition for the writ of mandamus (filed prior to the motion to stay but pending before us for decision) in which the petitioners pray that this Court issue its said writ of mandamus compelling Respondent, District Judge Thomas P. Thornton, to stay the trial of the said criminal action (Case No. 45325) now pending in the said United States District Court for the Eastern District of Michigan for such reasonable time as is necessary (1) to allow counsel for petitioners to review and assemble voluminous written material consisting of 1,949 Excise Tax Letter Rulings made available to said counsel on August 26, 1974, as a result of the district court’s order in said criminal action entered on June 26, 1974; and (2) to permit counsel to obtain compliance with the district court’s order of January 30, 1974, entered in Case No. 4-70345, a civil action instituted by petitioners in said court under the Freedom of Information Act, and to review and assemble the documents required by that order to be turned over to petitioners if said order is affirmed by this Court.

The said civil action referred to in the petition for mandamus is an action instituted by the petitioner in the said district court under the Freedom of Information Act to obtain from the Internal Revenue Service a vast amount of documents consisting of private tax rulings and other records which the petitioners claim to be disclosable under the Freedom of Information Act. In that action the district court entered an order directing the disclosure of a number of the documents sought by the petitioners, under provision for deletion, subject to court review, of items claimed to be confidential. The ruling of the district court in the Freedom of Information Act case is presently pending for review by this Court in Fruehauf Corporation, et al. v. Internal Revenue Service, No. 74-1474, which appeal has been briefed, and submitted to the Court for decision after oral argument on October 3, 1974.

Upon consideration of the petition for mandamus, the answer thereto of the Government of the United States, and the applicable authorities, we are of the opinion that the petition for the writ of mandamus is not well taken. It is apparent that the petitioners have already received the benefit of extensive discovery and disclosure from the files of the Internal Revenue Service as the result of discovery proceedings in the criminal action. The criminal action has been pending for a considerable length of time and it is apparent that the petitioners may apply to the district court in that action for further discovery if this should become necessary in the course of what promises to be a protracted trial. We have no reason to believe that the respondent district judge will not accord the petitioners a fair trial in the criminal action and grant them such relief by way of discovery or otherwise that they may be legally entitled to. If in the trial of said case any errors should be committed with respect to discovery or other aspects of the case, the rulings of the district judge would be subject to appellate review. We are of the view that the Freedom of Information Act was not intended to serve as a substitute for criminal discovery. Cf. Renegotiation Board v. Bannercraft Clothing, Co., Inc., et al., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); Hawkes v. I. R. S., 467 F.2d 787 (6 Cir., 1972) and Stans v. Gagliardi, 485 F.2d 1290 (2 Cir., 1973). The said petition for mandamus filed by the petitioner with this Court on September 24, 1974, is therefore hereby denied.

In view of this ruling on the petition for mandamus it becomes unnecessary to consider the petitioners’ motion for a stay of the district court’s order setting the date for the beginning of the trial of the criminal action, since the motion for a stay now becomes moot.


author: BARNES, Senior Circuit Judge. PELL, Circuit Judge

text:
    Peter J. RABINOWITZ et al., Plaintiffs-Appellants, v. BOARD OF JUNIOR COLLEGE DISTRICT NO. 508, COUNTY OF COOK, STATE OF ILLINOIS, a body politic and corporate, et al., Defendants-Ap-pellees.
    No. 74-1164.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 11, 1974.
    Decided Dec. 23, 1974.
    Rehearing Denied April 21, 1975.
    Michael Krinsky, Victor Rabinowitz, New York City, Lance Haddix, Chicago, 111., for plaintiffs-appellants.
    George L. Siegel, Fred R. Kimmel, Chicago, Ill., for defendants-appellees.
    Before SWYGERT, Chief Judge, PELL, Circuit Judge, and BARNES, Senior Circuit Judge.

       Senior Circuit Judge Stanley N. Barnes of the Ninth Circuit, sitting by designation.

   BARNES, Senior Circuit Judge.

This is an appeal from the dismissal of plaintiffs’ action without prejudice for mootness. (C.T. 22, 25-27). We reverse.

I.

Plaintiffs are tenured faculty members of Southwest College who were ordered transferred to different public Junior Colleges pursuant to a resolution of defendant Board passed on July 3, 1973. Plaintiffs, on August 16, 1973 (alleging that the transfers (1) were in reprisal for plaintiffs’ exercise of protected speech, (2) were made without giving adequate notice of the reason for the transfer, (3) were promulgated under an unduly vague and indefinite policy, and (4) denied plaintiffs a prior hearing commensurate with the demands of due process), brought this action seeking injunction and declaratory relief. The district court on September 11, 1973 issued a preliminary injunction; but before the case was heard on the merits, defendants entered into a new collective bargaining agreement with plaintiffs’ union which placed a “freeze” on faculty transfers during the period of the agreement: i. e., until June 30, 1975. On December 4, 1973 defendant Board, reciting the litigation herein and the collective bargaining agreement entered into, passed a resolution specifically revoking the transfer orders of July 3, 1973 affecting plaintiffs.

The district court then dismissed plaintiffs’ action on December 20, 1973, reciting in a subsequent memorandum of February 6, 1974 that it did so for mootness in light of: (1) the agreement, and (2) the Board’s resolution.

II.

It is established doctrine that the voluntary cessation of the complained of action is not sufficient to moot litigation. It must appear with assurance “that ‘there is no reasonable expectation that the wrong will be repeated,’ ” United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); Aurora Education Ass’n v. Board of Education, etc., 490 F.2d 431, 435 (7th Cir. 1974); cf. DeFun-is v. Odegaard, 416 U.S. 312, 94 S.Ct. 704, 40 L.Ed.2d 164 (1974). The defendants have the “heavy burden of persuasion,” United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). Here the defendants have not sustained that heavy burden. There is indeed a reasonable expectation that the wrong alleged may be repeated. That expectation is not a mere “speculative contingenc[y].” DeFunis, supra, note 4.

The protections of the collective bargaining agreement which plaintiffs presently enjoy will terminate as of June 30, 1975, at which time plaintiffs may again become exposed to the threat of transfer. If, as plaintiffs allege, defendants’ motivation behind the transfers in the instant case was to squelch plaintiffs’ opposition and dissent to their policies, then it seems apparent that there is little or no assurance that defendants will not attempt the transfers against next July. Indeed, this case itself arises out of the second attempted transfer of plaintiff Kaufman. Defendants have not withdrawn or repudiated the rule under which they have acted.

The case is not moot.

Reversed and remanded.

PELL, Circuit Judge

(dissenting).

Putting the matter quite simply, the majority opinion has revived a dead case which despite the purported resuscitation remains without sufficient breath of life to justify judicial attention. I, therefore, respectfully dissent.

The statement of the principle that the judiciary should not concern itself with moot questions, indeed would be exceeding the limitations of its authority under Article III of the Constitution, is not one of recent enunciation.

“The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to give an opinion upon a question of law, that opinion may have weight as a precedent for future decisions. But the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.” California v. San Pablo and Tu-lare Railroad Company, 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893).

The application, however, of this relatively simple statement of policy has not followed with the ease that might have reasonably been expected. Overriding policy considerations as well as genuine difficulties in diagnosis of the condition of health of the case have resulted in leaving the path to decision somewhat less than clear and certain. A recent case involving the availability of welfare benefits to employees on strike graphically illustrates the difficulties.

In Super Tire Engineering Company v. McCorkle, 469 F.2d 911 (3d Cir. 1972), the court had before it a challenge to the New Jersey welfare program on the basis that the payment of such benefits interfered with free collective bargaining. The strike had been settled and a divided court held the litigation was moot. This result was found improper by the Supreme Court, again on a divided basis, and the cause was remanded for proceedings on the merits. 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). While the Supreme Court rejected the determination of the Court of Appeals that the case was moot, the opinion of the lower court contains a particularly extensive survey and analysis of authorities which have sought to deal with this troublesome question. 469 F.2d at 914 et seq.

Inasmuch as the Supreme Court reversal was based upon the Court of Appeals’ misapplication of the principles derivable from the cases surveyed rather than upon any misstatement thereof, the guidelines which the majority of the Court of Appeals found in Supreme Court eases appear to me to be proper ones for application to the appeal before this court.

“The problem of mootness presents a recurring refrain in several types of cases. Analysis of them reveals four concerns that the Supreme Court addresses in terms of mootness. They are: that some sort of judicial decree be possible, that the parties remain in a posture sufficiently adverse to insure effective litigation, that the issue in contention continue to be concrete, and that the issue not be one that will recur and yet be unreviewable.” 469 F.2d at 915.

In the light of these guidelines I turn to an examination of the appeal before us. Both District Judge Will and a three-judge panel of the Illinois Appellate Court have held that there was no live controversy. I agree. The complaint basically was directed at the transfers of July 3, 1973. Injunctive relief was sought and Judge Will granted a preliminary injunction on the basis that “the Complaint and Affidavits filed in support thereof establish that there is a bona fide dispute between the parties which may affect the constitutional rights of the Plaintiffs.” The dispute which was the basis of the preliminary injunction has been ended. The transfers have been cancelled and the faculty transfers in the absence of agreement have been frozen until June 30, 1975.

While the majority opinion in the present case does not differentiate between injunctive and declaratory relief, I cannot conceive that any controversy remains as to the former. Without further court order, the transfers at which the sought-for injunctive relief was pointed have now been nullified as fully as though the injunction prayed for had been granted. There does remain, however, the matter of declaratory relief and this issue in the appropriate case may avoid mootness. Super Tire Engineering Company, supra, 416 U.S. at 121, 94 S.Ct. 1694. However, the Supreme Court in that case emphasized aspects which are conspicuously absent in the present case. There the Court observed that “the challenged governmental activity ... is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.” Id. at 122, 94 S.Ct. at 1698. In the case before it, in distinguishing cases in which mootness was found to exist, the Court observed, that in those cases, “the recurrence of a seizure [was] so remote and speculative that there was no tangible prejudice to the existing interests of the parties and, therefore, there was a ‘want of a subject matter’ on which any judgment of this Court could operate.” Id. at 123, 94 S.Ct. at 1698. Further, the Court observed that in the case before it the challenged policy “is fixed and definite [and] not contingent upon executive discretion.” Id. at 124, 94 S.Ct. at 1699. (Emphasis added.)

In the case we have before this court, while June 30, 1975, is not distantly remote, possibility of recurrence cannot be other than completely speculative. The trial court on remand will have to speculate that notwithstanding the rebuffs suffered by alleged attempts at disciplinary transfers resulting from union negotiations, arbitration, and preliminary injunction, the administration will once again in July 1975 attempt to transfer. Directing its attention to that point in time, the trial court will have to put aside the possibility that transfers may be based upon legitimate factors — the needs of other colleges, increased enrollment in other colleges, decreased enrollment in Southwest College, increased emphasis on certain curricular subjects elsewhere, decreased emphasis at Southwest, et cetera.

Passing these hurdles, the trial court will be confronted with the speculative determination that the plaintiffs have not taken employment elsewhere (one is now on leave of absence at his own request), that the identity of the college president will remain unchanged (plaintiffs argue that there has been a power struggle between plaintiffs and the president, a not unusual aspect of academic life), and that the union will either be unsuccessful or will abandon efforts to continue the freeze on transfers without agreement. In sum, the district court will have to attempt to lay down some due process guidelines based upon guessed-at factual possibilities rather than probabilities.

Returning to the guidelines from the majority opinion in the Court of Appeals in Super Tire quoted above: Presumably some sort of a judicial decree can be fashioned by an ingenious trial judge but it may or may not be responsive to that which would have developed if there had not been judicial action. There is no certainty whatsoever that the parties on either side will remain in a sufficiently adverse posture nor do I conceive that the litigation issue is any longer concrete. Finally, it seems crystal clear that if the administration should again undertake in July 1975 a transfer it will not only be reviewable but reviewed.

With all due respect to the majority opinion in the present case, I do not find the cited antitrust cases persuasive. The test for mootness in those cases is a stringent one and mere voluntary cessation of alleged illegal conduct does not moot the case leaving the defendant free to return to his old ways. United States v. Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968).

Further, because of the speculative nature of the possibility that the alleged wrong may be repeated I am in complete disagreement with the majority’s conclusion that there is here a reasonable expectation of recurrence. As a matter of fact, the appellants’ argument of likelihood of recurrence, including apparently the reference to the prior attempted transfer of Kaufman, is found only in certain testimony allegedly taken from discovery depositions which are not a part of the record.

Notwithstanding the crowded conditions of court dockets, the judiciary should bend every reasonable effort to afford full due process to every controversy. It is to be regretted, however, when the factors precipitating litigation have died that the speculative possibility of their rebirth should further increase the work load with which the courts are attempting to cope. I would let this case rest in peace.


author: CUMMINGS, Circuit Judge.

text:
    Hattie KEENON, Individually and on behalf of all persons similarly situated, Plaintiff-Appellant, v. James B. CONLISK, Jr. and James M. Rochford, Defendants-Appellees.
    No. 74-1463.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 6, 1974.
    Decided Dec. 30, 1974.
    Jack B. Schmetterer, Chicago, 111., for plaintiff-appellant.
    Richard L. Curry, Corp. Counsel, Edmund Hatfield, Asst. Corp. Counsel, Chicago, 111., for defendants-appellees.
    Before SWYGERT, Chief Judge, MARIS, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

       Senior Circuit Judge Albert Branson Maris of the Third Circuit is sitting by designation.

   CUMMINGS, Circuit Judge.

This action was brought under the Civil Rights Act (42 U.S.C. § 1983) for injunctive relief and damages. The complaint alleged that at 8:00 p. m. on August 12, 1973, plaintiff and her husband were arrested in the Second Police District of the First Area of the Chicago Police Department. They were transferred to Second District headquarters at 5101 South Wentworth Avenue. From 8:00 p. m. until midnight, plaintiff was incarcerated in a cell with her hands handcuffed behind her back. On the other hand, during this time her husband was searched, fingerprinted, charged with three firearms offenses, permitted to make bond and released. At approximately midnight, plaintiff, still handcuffed, was transported in a prisoners’ transportation vehicle to Central Police Headquarters at 1121 South State Street where processing of the single charge against her (possessing a firearm without a registration certificate) was begun. She was released about 4:00 a. m. on August 13, 1973.

Plaintiff sued not only on her own behalf, but also on behalf of all women arrested outside of the Central Police District and charged by Chicago police officers with certain criminal offenses within five years of the filing of this lawsuit. According to the complaint, male prisoners are processed after their arrests within the area and district wherein they are arrested, whereas women are processed only at Central Headquarters at 1121 South State Street, the only place where policewomen are assigned to process female arres-tees.

Because of the different treatment accorded to members of the female sex, plaintiff claims that she suffered com-pensable injury by reason of the lengthy handcuffing and unnecessarily prolonged incarceration. She further alleges that “her attorneys [had] to travel longer distances and to spend more time to effect her release” than in the case of her husband. Similar allegations are made on behalf of the plaintiff class.

The defendants are the former Superintendent of the Chicago Police Department and his successor. They were charged with responsibility for the department’s policy of maintaining policewomen to process female prisoners only at Central District Headquarters, thus causing inferior treatment of female arrestees and, therefore, depriving plaintiff and members of her class of due process and the equal protection of the laws. In addition to $15,000 damages sought for plaintiff and each member of the plaintiff class, she sought an injunction requiring the employment of enough policewomen to process female prisoners within the Police Department areas and districts where they are arrested and ordering the processing of female prisoners to take place within those areas and districts.

Defendants filed a motion to dismiss and the district court granted the motion on the ground that the complaint failed to state a claim upon which relief can be granted. See Fed.R.Civ.Pro. 12(b)(6). Other grounds raised by defendants were not considered by the district court in its memorandum opinion and order.

Defendants did not present any supporting affidavits or other evidentiary material but argued that their policy represented a valid administrative distinction “made necessary by the lack of adequate physical facilities and unavailability of police matrons at the local district level.” Despite plaintiff’s contention that the different treatment of prisoners based on sex involved a “suspect classification” requiring strict judicial scrutiny, the district judge held that the “rational basis” test was applicable and proceeded to apply it. The court addressed the issue “whether a rational basis for the Police Department’s regulation on the processing of the female ar-restees exists,” and concluded:

“The Department’s concern that the processing of women, which includes physical custody and search, be handled in an appropriate manner, makes it reasonable that they are brought to the only place where matrons are on duty around the clock. Since many more men are arrested than women, it is not unreasonable that the facilities for handling women prisoners are not as generally dispersed as those for men. This system is not arbitrary in its treatment of women, but rather represents a reasonable attempt to act in their best interests and to handle the processing of all arrestees efficiently.”

In our view, the district judge could not properly have determined that the practices complained of were reasonable from the record before him. Plaintiff’s allegations, which must be taken as true at this juncture in the proceedings, are sufficient to require a showing by the defendants of some justification for the allegedly discriminatory treatment of female arrestees. Bald assertions that the police practices are reasonable cannot be considered. The district court held that because fewer females are arrested, it is reasonable to provide matrons and processing facilities only at central headquarters. The district court could not have so held without accepting defendants’ assertions as fact. In light of the allegedly inferior treatment of women arres-tees, the lack of any factual record to support defendants’ contentions and the acceptance of the well-pleaded facts in the complaint required at this stage of the proceedings, we conclude that the district court erred in holding that it was reasonable for defendants to refuse to provide processing for women arrestees at more than one location in the city, to keep such arrestees handcuffed for several hours while transportation to central headquarters is arranged, and to delay their opportunity to secure release on bond. The defendants may be able to justify their seemingly discriminatory treatment of women arrestees, but it was improper to dismiss the complaint without considering any evidence to support this classification based upon sex.

The judgment of dismissal is reversed and the cause is remanded for further proceedings pursuant to Circuit Rule 23.

      . The Police Department divides Chicago into areas and districts. Several of the 21 districts comprise each of the 6 areas.

      . Because we hold infra that even under the “rational basis” test the district court could not properly dismiss the complaint as it did, we need not decide if the “rational basis” test is the proper standard by which to judge the propriety of a classification based upon sex.

      . See e. g., Hillebrand v. Sav-Co., 353 F.Supp. 19 (E.D.Ill.1972); Pointer v. American Oil Co., 295 F.Supp. 573 (N.D.Ind.1969). See also 2A Moore’s Federal Practice (2d ed.) fl 12.08 at 2267 (1974).

      . See generally, 2A Moore’s Federal Practice (2d ed.) U 12.08 at 2265-2286 and fl 12.09 at 2296 (1974).


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARTER LUMBER, INC., Respondent.
    No. 74-1313.
    United States Court of Appeals, Sixth Circuit.
    Dec. 17, 1974.
    Elliott Moore, Deputy Associate Gen. Counsel, Peter G. Nash, John S. Irving, Jr., Patrick H. Hardin, Robert G. Sewell, Fredric Sagan, John G. Elligers, National Labor Relations Board, Washington, D. C., Emil C. Farkas, Regional Atty., Region 9, NLRB, Cincinnati, Ohio, for petitioner.
    John A. Daily, Schwab, Sager, Grosen-baugh, Rothal, Fort, Skidmore & Nukes, Akron, Ohio, for respondent.
    Before WEICK, PECK and MILLER, Circuit Judges.
   This case is before the Court upon application of the National Labor Relations Board pursuant to Sec. 10(e) of the Act for enforcement of its order issued against Carter Lumber, Inc. on November 16, 1973. The Board’s decision and order are reported at 207 N.L.R.B. No. 64.

The Board found that the company violated Sec. 8(a)(1) of the Act by discharging supervisor, Cecil Love, because he testified adversely to the company in a Board proceeding. The Board further found that the company violated Sec. 8(a)(3) and (1) of the Act by refusing to recall Charles Parks and in reducing the hours of work available to Andrew Deere because they had engaged in union activities.

We are in agreement with the holding of the Fifth Circuit in Oil City Brass Works v. N.L.R.B., 357 F.2d 466, 471 (1966), that “any discrimination against supervisory personnel because of testimony before the Board directly infringes the right of rank-and-file employees to a con-gressionally provided, effective administrative process, in violation of Sec. 8(a)(1) tt

As pointed out by the Fourth Circuit in N.L.R.B. v. Electro Motive Mfg. Co., 389 F.2d 61, 62 (1968), “The effect of the discharge [of a supervisor for testifying] is to tend to dry up legitimate sources of information to Board agents . . . ”, and thus to impair the functioning of the machinery provided for the vindication of the employees’ rights.

The Second Circuit in Pedersen v. N.L.R.B., 234 F.2d 417, 420 (1956), pointed out that the Board should be required to utilize every resource at its command to protect witnesses, including supervisors, who have been placed in jeopardy because the Board has required them to appear and to give testimony.

After a full consideration of the record, we feel that substantial evidence on the record as a whole supports the finding of the Board that supervisor Love was discharged because of his testimony at the hearing, and that the company wrongfully refused to recall employee, Charles Parks, and wrongfully reduced the hours of work available to Andrew Deere, because they had engaged in union activities.

It follows, therefore, that the order of the Board of November 16, 1973, should be and it is hereby enforced according to its terms.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AVON CONVALESCENT CENTER, Respondent.
    No. 74-1731.
    United States Court of Appeals, Sixth Circuit.
    Dec. 17, 1974.
    Elliott Moore, Michael S. Winer, Deputy Associate Gen. Counsel, Laura Ross Blumenfeld, N.L.R.B., Washington, D. C., John C. Getreu, Director, Region 9, N.L.R.B., Cincinnati, Ohio, for petitioner.
    Jonas B. Katz, Brown & Gettler, David Reichert, Dennis J. Buckley, Cincinnati, Ohio, for respondent.
    Before PHILLIPS, Chief Judge, and WEICK and CELEBREZZE, Circuit Judges.
   This case is before the court upon the application of the National Labor Relations Board for enforcement of its bargaining order against Avon Convalescent Center issued on March 29, 1974. The Board’s Supplemental Decision and Order are reported at 209 N.L.R.B. No. 143. For a complete statement of facts reference is made to that decision of the Board and to its earlier decision dated June 22, 1973, reported at 204 N.L.R.B. No. 64, including the dissents of Chairman Edward B. Miller to both decisions. In both decisions the majority of the Board disagreed with the decisions of the Administrative Law Judge.

Upon consideration, the court concludes that the Supplemental Decision and bargaining order of the Board requiring respondent to bargain collectively with Local Union 47, Service Employees International Union, AFL-CIO, is not supported by the record in this case.

It is ordered that enforcement of the order of the Board be and hereby is denied.


author: PER CURIAM:

text:
    J. W. YOUNGBLOOD et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-2177.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.
    John Gano, Joseph D. Jamail, Houston, Tex., for plaintiffs-appellants.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Arthur L. Bailey, Atty., Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Acting Chief, App. Sec., Jonathan S. Cohen, William M. Brown, U. S. Dept, of Justice, Tax Div., Washington, D. C., Larry Ross, Tax Div., Dallas, Tex., Fred B. Ugast, U. S. Dept, of Justice, Tax Div., Fort Worth, Tex., for defendant-appellee.
    Before GEWIN, BELL and CLARK, Circuit Judges.
   PER CURIAM:

Taxpayers sought in 1967 to amend their 1963 income tax return so as to change from an installment basis for paying taxes on capital gains to a completed sales basis. After a full hearing, the district court agreed with the Internal Revenue Service that the 1963 election was binding on taxpayers. Cf. Pacific National Co. v. Welch, 1938, 304 U.S. 191, 194-195, 58 S.Ct. 857, 82 L.Ed. 1282.

The opinion of the district court is reported. Youngblood v. United States, W.D.Tex., 1974, 388 F.Supp. 152. We agree with the result reached in the district court and find it unnecessary to add to what was said in the opinion of that court.

Affirmed.


author: COWEN, Chief Judge:

text:
    Edwin R. FREDRICK v. The UNITED STATES.
    No. 255-73.
    United States Court of Claims.
    Dec. 18, 1974.
    Earl W. Wolfe, Tulsa, Okl., attorney of record, for plaintiff.
    Iraline G. Peniston, Washington, D. C., with whom was Asst. Atty. Gen., Carla A. Hills, for defendant.
    Before COWEN, Chief Judge, and SKELTON and KASHIWA, Judges.
   ON PLAINTIFF’S MOTION AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

COWEN, Chief Judge:

Plaintiff was formerly employed as a Supervisory Aircraft Quality Control Representative, GS — 1942—12, for the Defense Supply Agency, Defense Contract Administration Services Region, Dallas (DCASR — Dallas). In the spring of 1971, after receiving a Separation/Reduction-in-Force (RIF) Notice, he retired from his position, and he has not been rehired by the agency. In this case, plaintiff claims that he is entitled to reinstatement to his former position and back pay from the date of his allegedly involuntary retirement, because he was erroneously not afforded the job retention protection of 5 U.S.C. §§ 3501-3502 (commonly known as part of the Veterans’ Preference Act). Plaintiff also argues that the Civil Service Commission (CSC) should have accepted his appeal from the RIF, because the retirement was an involuntary act on his part, and that the Defense Supply Agency has improperly denied him priority in reemployment.

The constitutionality of the Veterans’ Preference Act has been challenged in other cases, but we believe this is the first case in which the issue to be decided is whether the Act violates the due process clause of the Fifth Amendment to the extent that it discriminates against those serving the government in a civilian capacity under a War Service Appointment. We conclude that the Veterans’ Preference Act does not unduly discriminate against War Service appointees; we further assume for the purposes of this case that plaintiff’s resignation was an involuntary act on his part; and we remand the case to the Defense Supply Agency with directions to hear and determine, in the first instance, plaintiff’s claimed priority rights to employment in that agency.

The case is before us on cross-motions for summary judgment, and the facts essential to a decision in this case are not disputed. On February 8, 1943, plaintiff received a War Service Appointment as a Principal Procurement Inspector (Aircraft) from the War Department — Army Air Forces at Large. The appointment was made pursuant to Executive Order No. 9063, 3 C.F.R. at 1091 (Cum.Supp.1943), and plaintiff worked in Tulsa, Oklahoma. On March 5, 1945, plaintiff received a 2-B classification from his local draft board at the request of Colonel H. A. Strauss, his superior, pursuant to Executive Order No. 9309, 3 C.F.R. at 1256 (Cum.Supp.1943). Plaintiff’s appointment was for the duration of World War II, and he could not resign without prejudice. At the conclusion of the war, the appointment was terminated by a reduction in force with an effective date of September 30, 1945. Plaintiff emphasizes the fact that he performed an important service for the country in time of war by seeing that the war materials and equipment furnished to the military personnel met the requisite governmental specifications and standards.

On March 12, 1951, the plaintiff reentered Federal service and was employed by the United States Air Force, AMC, Southern Air Procurement District, as an Aircraft Inspector at the Douglas Aircraft Company, Tulsa, Oklahoma. Between March 12, 1951 and May 31, 1971, he progressed in pay grades from GS-8 to GS-12. During the period from March 29 to April 2, 1971, the agency conducted a workload survey that resulted in a reorganization of plaintiff’s section. On April 7, 1971, plaintiff received a Separation/Reduction-in-Force Notice with an effective date of separation of June 11, 1971. On April 23, 1971, W. M. Allison, Chief of the Office of Civilian Personnel, circulated a memorandum notifying all employees that a 4.5 percent cost-of-living increase would be available to retirees off the rolls on or before May 31, 1971. On April 26, 1971, plaintiff applied for retirement, specifically stating in the application “Retirement — Discontinued Service (Involuntary),” and the retirement became effective on May 31, 1971.

On June 21, 1971, plaintiff filed an appeal with the Regional Office of the CSC, arguing that he was improperly denied the benefits of the Veterans’ Preference Act in the RIF, and this appeal was subsequently taken to the CSC Board of Appeals and Review. On November 17, 1971, the Board found that the CSC had no authority to hear Mr. Frederick’s appeal because he chose to resign voluntarily, rather than be separated by the RIF. In addition to refusing to accept the appeal, the Regional Office also sent plaintiff a letter on July 29, 1971, explaining that he was not entitled to veterans’ preference because he had not served on active duty in military service. The Board also reviewed this aspect of plaintiff’s appeal and concluded that plaintiff did not qualify for veterans’ preference.

After the CSC’s decision on his request for review of the RIF, plaintiff attempted to obtain reemployment with the agency. In the April 7, 1971, notification of his selection for separation under the RIF, the agency advised plaintiff that he had been placed in tenure group I — B and entered upon the Reemployment Priority List. Thereafter, on May 27, 1971, Colonel Harold W. Yount, Commander, Defense Supply Agency, DCASR — Dallas, issued a letter to all employees concerning the “DoD Priority Placement Program.” In this letter, Colonel Yount stated:

Displaced employees affected by manpower reductions in the Department of Defense will be given first priority for vacancies in our activity. President Nixon has given strong backing to this effort. The Department of Defense has established a program to assure this policy is followed. It is called the “DoD Priority Placement Program,” commonly called a “Stopper List” in practical application.

On June 9, 1972, plaintiff applied for the vacant position of Quality Assurance Specialist, GS — 11. Mr. Fredrick was not selected for this position; it was filled by promoting another employee within the agency. On July 17, 1972, Mr. Fredrick appealed this decision to the Regional Office of the CSC and then to the Board of Appeals and Review, claiming that he should have been given priority in filling the vacant position. On December 19, 1972, the Board ruled against Mr. Fredrick on the ground that his claim for priority in reemployment was a matter of agency policy and that there had been no violation of the Civil Service Regulations.

I

The primary issue concerns the constitutionality of 5 U.S.C. §§ 3501— 3502 (hereinafter sometimes referred to as the Veterans’ Preference Act). Plaintiff is not a veteran because he was not honorably discharged after serving on active duty in the Armed Forces (5 U.S.C. § 2108(1)), and consequently, he is not a “preference eligible” as that term is defined for purposes of Title 5 of the United States Code, 5 U.S.C. § 2108(3) (1970). Plaintiff argues that his civilian governmental service should entitle him to the job retention benefits of the Veterans’ Preference Act and that the Act is an unconstitutional violation of his rights to equal protection of the laws and of the due process clause of the Fifth Amendment to the extent that it discriminates against those serving under a War Service Appointment. We cannot accept this contention.

In approaching the equal protection claim, we must decide whether the Act creates an arbitrary distinction between two classes of persons which is wholly unrelated to the objective of the statute. The classification prescribed by the Act “ ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415, [40 S.Ct. 560, 64 L.Ed. 989] (1920).” Johnson v. Robison, 415 U.S. 361, 374-375, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974).

The provision for retention of veterans in Federal service has been accepted practice for many years. In 1876, Congress passed a statute requiring the head of any executive department in “reduction of force” actions to “retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States, and the widows and orphans of deceased soldiers and sailors.” Act of Aug. 15, 1876, ch. 287, § 3, 19 Stat. 169. This policy has been eontin-ued and expanded to the present time.

In order to determine the reasonableness of the classification, it is necessary to examine the objective of the statute. The present statutory framework is based primarily on the Veterans’ Preference Act of 1944, ch. 287, 58 Stat. 387. Mr. Starnes, the sponsor of H.R. 4115, which eventually became the 1944 Act, stated the purpose of the Act in these words:

What [H.R. 4115] does is to give legislative sanction to existing veterans’ preference, to the rules and regulations in the executive branch of the Government, and to broaden and strengthen those preferences, with the idea that when a man is selected by the country to serve in battle and give his life, if need be, for the preservation of this country and its institutions, that same man is certainly entitled to some degree of preference for positions in Government departments and agencies in serving his country in peacetime. It is a reward to a man for patriotic duties well performed; it encourages our young men and women to serve their country in an hour of need; and it makes them feel when they have given their all or offered to give their all in defense of this country and its institutions, that a grateful country will recognize their sacrifice and service when peaces [sic] comes by giving them preference for service in .various capacities with their Government. (Emphasis added.)

Hearings on S. 1762 and H.R. 4115 before the Senate Comm, on Civil Service, 78th Cong., 2d Sess. 8 (1944). Mr. D’Ale-sandro stated his position as follows:

I favor this legislation because this nation has trained 12,000,000 fighting men to destroy and kill. They have been taken away from schools, colleges, and jobs. Their home life has been broken up, and they have turned into hard tough soldiers and sailors * * *
******
The millions of men and women returning from the war fronts and camps will need jobs, money, training, hospitalization, and other assistance. They expect stability and security, so that they can start rebuilding their private lives.
We must give them all that. It is the least we can do for them. * * * [90 Cong.Rec. 3506 (1944)]

These statements indicate that there are several justifications for the Act. Those in military service suffer a greater loss of personal freedom than do their civilian counterparts: they are subject to discipline, possible relocation overseas, and potentially hazardous duty. Military personnel are often beset with greater problems in reorienting themselves to civilian employment than non-military persons, and the veterans are entitled to a reward for their services. This rationale is similar to that usually given for State veterans’ preference acts. In Koelfgen v. Jackson, 355 F.Supp. 243, 251 (D.Minn. 1972), aff’d mem., 410 U.S. 976, 93 S.Ct. 1502, 36 L.Ed.2d 173 (1973), the court listed the following reasons as those which have historically been given to justify veterans’ preference:

1. The State owes a debt of gratitude to those veterans who served the nation in time of peril. State ex rel. Kangas v. McDonald, 188 Minn. 157, 246 N.W. 900 (1933).
2. A veteran is likely to possess courage, constancy, habits of obedience and fidelity, which are valuable qualifications for any public office holder. Goodrich v. Mitchell, 68 Kan. 765, 75 P. 1034 (1904).
3. Veterans should be aided in rehabilitation and relocation because military service has disrupted their normal life and employment. Note, 26 Wash. & Lee L.Rev. 165 (1966).

See Feinerman v. Jones, 356 F.Supp. 252, 259 (M.D.Pa.1973).

Plaintiff argues that the generally accepted rationale for the veterans’ preference applies equally as well to him because he too suffered problems of disruption of his life; he developed as much “courage, constancy, habits of obedience and fidelity” as a veteran who was a desk clerk, a medic, a chaplain or a quartermaster; and the nation owes him a debt of gratitude for his services in the war effort. While plaintiff’s work in the production effort on the “home front” may well have been a valuable service, it differs in many significant respects from military duty. Plaintiff did not leave the country, nor was he subject to reassignment abroad. In his position, he could not be called upon to risk his life in combat or to suffer the rigors of military life, and it is doubtful whether his problems in readjusting to private life were comparable to those whose military skills were not as readily adaptable to private life as were plaintiff’s. The fact that Mr. Fredrick, as a War Service appointee, was denied the right to resign without prejudice during the period of his appointment, or that he received a 2 — B draft classification from his local draft board during part of the time of his appointment does not place him in the same category as military veterans when it comes to receiving job retention benefits.

The principle of granting preference to veterans in certain aspects of public employment has been accepted in both State and Federal practice. See, e. g., White v. Gates, 102 U.S.App.D.C. 346, 253 F.2d 868, cert. denied, 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147 (1958); Feinerman v. Jones, supra; Koelfgen v. Jackson, supra. In White v. Gates, the petitioners, non-veteran Government employees, claimed that the Veterans’ Preference Act discriminated against them in violation of their constitutional rights. A single judge on the District Court dismissed the complaint without convening a three-judge court because the complaint failed to raise a substantial constitutional question. In affirming that decision, the United States Court of Appeals for the District of Columbia stated:

Veterans’ preference in federal employment has been an established policy of Congress for many years. Encouragement and reward of military service are its rational basis. If it is unwise and costly, this does not make it unconstitutional. The Supreme Court and other courts have enforced it, and have done so without suggesting any possible constitutional difficulty [253 F.2d at 869],

This case is similar to the recent Supreme Court decision in Johnson v. Robi-son, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). In Robison, a conscientious objector, who had satisfactorily performed two years of alternative service at Peter Bent Brigham Hospital, Boston, brought a class action seeking to have 38 U.S.C. §§ 101(21), 1652(a)(1), and 1661(a), which, taken together, provide the standards for entitlement to the benefits of the Veterans’ Readjustment Benefits Act of 1966, declared unconstitutional in violation of the First and Fifth Amendments. Robison claimed, in part, that he was as entitled to the benefits of that Act as were the veterans who served on active duty and that the Act violated the equal protection principle to the extent that he was denied these benefits. After examining the legislative background of the 1966 Act, the Court found the Act was designed to compensate for the disruption military service causes to civilian lives, and not merely to eliminate the educational gaps between those who served their country and those who did not. The Court also determined that the disruptions caused by military life were qualitatively and quantitatively different from the disruptions caused by Robison’s alternative service and that this difference was sufficient to form a rational basis for the congressional classification. Moreover, the Court held that the statutory classification bore a rational relationship to the stated goal of “enhancing and making more attractive service in the Armed Forces of the United States” (415 U.S. at 382, 94 S.Ct. at 1173), and the Court upheld the constitutionality of the Act.

The Veterans’ Preference Act and the Veterans’ Readjustment Benefits Act are two ways in which Congress sought to help military veterans. We find, as did the Supreme Court in Robison, that Congress had a rational basis for differentiating between veterans who served on active duty and those who performed a type of “alternative service” in a civilian capacity. There is a qualitative difference between civilian employment and service in the military, even when the military service is confined to non-combat duty. As Mr. Starnes stated when he introduced H.R. 4115, veterans’ preference in employment encourages men and women to serve their country in the military. The Court in Robison found these grounds sufficient to provide a rational basis for the Veterans’ Readjustment Benefits Act, and we find them similarly applicable here. Congress had a reasonable basis for excluding War Service appointees from the benefits of the Veterans’ Preference Act, and we hold that there is no undue discrimination or unequal application of the law in denying plaintiff the privileges of the Act.

Plaintiff also argues that it violates due process to deprive him of the right to continue in public employment through the use of an arbitrary preference which has no rational basis and contends that he was denied a hearing prior to termination to determine whether he was better qualified than the eligible veterans. We reject both arguments. As discussed above, there is a rational basis for giving veterans preferential treatment in employment. Furthermore, once plaintiff received his RIF notice on April 7, 1971, he was entitled to a review by the CSC to determine whether his rights were violated. See 5 C.F.R. § 351.901. Also, if the facts show that his retirement was involuntary under circumstances amounting to an adverse action, he was entitled to have his appeal heard by the CSC. See Perlman v. United States, 490 F.2d 928, 203 Ct.Cl. 397 (1974). These procedural protections have not previously been found lacking in due process, and we do not now find them lacking. Contrary to plaintiff’s assertions, Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966) is inapposite here. That case involved different statutes and arose under circumstances wholly unrelated to the situation at hand.

II

The next question is whether plaintiff had a right to have his appeal on the RIF action heard by the CSC even though he retired prior to the effective date of the RIF and was not separated by the RIF. In Perlman v. United States, supra, we held that a combination of circumstances, including faulty action by the Government, was sufficient to show that an employee’s resignation was involuntary and that he was entitled to a hearing by CSC on the merits of the RIF in his case. In this case, it is not necessary to resolve the difficult question of whether Mr. Fredrick acted voluntarily within the purview of the Perl-man decision when he “chose” to retire. In his administrative appeals and before this court, plaintiff has sought to challenge the RIF on the constitutional issue only; he does not claim that the RIF was otherwise improper. As discussed above, the Act does not unduly discriminate against him or otherwise violate his constitutional rights. Assuming, arguen-do, that plaintiff’s resignation was involuntary and that the CSC should have heard his appeal, plaintiff cannot succeed on his constitutional claim.

It would serve no useful purpose to find that the CSC should have given Mr. Fredrick a hearing and then to remand the case for the CSC to consider the constitutional issue in the first instance, as defendant has requested. This is not a matter where it is important for the agency to prepare the factual record, to interpret a statute which it is authorized to administer, or to apply its own regulations. Moreover, the CSC Board of Appeals and Review has already given some indication of its position that Mr. Fredrick is not entitled to the benefits of the Veterans’ Preference Act. Since we find that plaintiff’s constitutional claim is without merit, there is no need for further action by the CSC.

Ill

Finally plaintiff claims his priority reemployment rights were violated. In the notification of plaintiff’s selection for the RIF, the agency placed plaintiff in tenure group I — B and entered him upon the Reemployment Priority List. Plaintiff admits that the Defense Supply Agency has not violated the CSC regulations governing appointments from the Reemployment Priority List by filling the vacant position through promotion of a current employee within the agency. See 5 C.F.R. § 330.201; Federal Personnel Manual § 330 — 337, Subchap. 2, Subsection 2 — 2(2) (June 27, 1968). Instead, plaintiff relies on the letter from Colonel Yount, Commander Defense Supply Agency, DCASR — Dallas, issued on May 27, 1971, to show that he was entitled to first priority in filling vacant positions.

Mr. Fredrick’s July 17, 1972, appeal to the CSC (his second appeal under consideration in this case) was based primarily on this letter. In rejecting plaintiff’s claim, the CSC found that the Civil Service Regulations had not been violated, and with respect to Colonel Yount’s letter, the Board said:

Since it is clear that the Commander’s letter of May 27, 1971 relates to agency policy and not to a matter of the Civil Service Regulations, whatever rights accrued to the appellant from this letter should be pursued within the agency’s channels and not with the Civil Service Commission.

Colonel Yount’s letter indicates that the Department of Defense had established its own special policy and program with respect to priorities in filling vacancies within the agency. This program was called the “DoD Priority Placement Program.” But except for Colonel Yount’s letter, there is nothing in the record which explains the program or sets forth the procedure to be followed. In view of this and other questions that may arise concerning plaintiff’s priority rights, we think that these are matters which are better left for resolution in the first instance by the Defense Supply Agency. Plaintiff should not be faulted for his failure to exhaust his administrative remedy within the agency before filing this suit, because there is nothing in the record to show that he was informed of any rights he may have had to appeal to the agency.

Accordingly, it is hereby ordered that this case is remanded to the Defense Supply Agency pursuant to Pub.L. 92— 415, 86 Stat. 652, and Rule 149(b), for a period not to exceed 6 months from the date of this order. Plaintiff shall have 30 days from this date within which to file his appeal with the Defense Supply Agency to establish whatever rights he may be entitled to under the DoD Priority Placement Program, referred to in Colonel Yount’s letter of May 27, 1971. Upon receipt of plaintiff’s appeal, the agency is directed to hear and determine plaintiff’s rights under the DoD Priority Placement Program. Further proceedings in the court shall be stayed during the period fixed in this order of remand. Defendant’s counsel is designated to advise the court by letter to the clerk of the status of the remand proceedings, and such advice shall be given at intervals of 90 days or less, commencing with the date of this decision.

      . On numerous occasions the Supreme Court has reiterated that “while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.’ ” Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964). See Jolin-son v. Robison, 415 U.S. 361, 364 n. 4, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Frontiero v. Richardson, 411 U.S. 677, 680 n. 5, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Shapiro v. Thompson, 394 U.S. 618, 641-642, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

      . See Act of Aug. 23, 1912, ch. 350, § 4, 37 Stat. 413; Veterans’ Preference Act of 1944, ch. 287, § 12, 58 Stat. 390; Act of Aug. 19, 1964, Pub.L. No. 88-448, § 202(l)-(3), (4)(c), 78 Stat. 486; Act of June 29, 1968, Pub.L. No. 90-367, § 3, 82 Stat. 278; Act of Oct. 22, 1968, Pub.L. No. 90-623, § 1(23), 82 Stat. 1313.

      . There are numerous cases which have upheld the constitutionality of granting veterans preference in public employment. Some of these include: State ex rel. Higgins v. Civil Service Comm. of Bridgeport, 139 Conn. 102, 90 A.2d 862 (1952); People ex rel. Sellers v. Brady, 262 111. 578, 105 N.E. 1 (1914); Shaw v. Marshalltown, 131 Iowa 128, 104 N.W. 1121 (1905); Goodrich v. Mitchell, 68 Kan. 765, 75 P. 1034 (1904); Ricks v. Dept. of State Civil Service, 200 La. 341, 8 So.2d 49, (1942); McNamara v. Director of Civil Service, 330 Mass. 22, 110 N.E.2d 840 (1953); Swantush v. Detroit, 257 Mich. 389, 241 N.W. 265 (1932); State ex rel. Kangas v. McDonald, 188 Minn. 157, 246 N.W. 900 (1933); Gianatasio v. Kaplan, 257 N.Y. 531, 178 N.E. 782 (1931), cert. denied, 284 U.S. 595, 52 S.Ct. 203, 76 L.Ed. 512 (1932); Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d 701 (1938) (statute constitutional in part); State ex rel. Raines v. Seattle, 134 Wash. 360, 235 P. 968 (1925). On the other hand, some cases have found state veterans’ preference statutes unconstitutional, but these do not affect the outcome of this suit. See Brown v. Russell, 166 Mass. 14, 43 N.E. 1005 (1896); Commonwealth ex rel. Maurer v. O’Neill, 368 Pa. 369, 83 A.2d 382 (1951); Carney v. Lowe, 336 Pa. 289, 9 A.2d 418 (1939).


author: SKELTON, Judge:

text:
    Ronald L. McDONALD v. The UNITED STATES.
    No. 396-73.
    United States Court of Claims.
    Dec. 18, 1974.

      J. Francis Pohlhaus, Washington, D. C., Atty. of record, for plaintiff; Nathaniel R. Jones, New York City, of counsel.
    Alan L. Ferber, Washington, D. C., with whom was Asst. Atty. Gen., Carla A. Hills, New York City, for defendant.
    Before LARAMORE, Senior Judge, and SKELTON and KUNZIG, Judges.
   ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT

SKELTON, Judge:

Plaintiff, while an enlisted man in the United States Marine Corps, was charged and convicted of four counts of assault with intent to commit murder in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1970). On April 17, 1970, he was sentenced by a general court-martial to a dishonorable discharge, confinement for 80 years at hard labor, and total forfeiture of pay. Subsequent appeals were taken to the convening authority, the Navy Court of Military Review and the United States Court of Military Appeals. At each stage the verdict of the general court-martial was upheld, while at the same time the sentence was reduced. After his final military appeal, the plaintiff’s sentence was reduced to 10 years of hard labor, plus discharge and forfeiture of pay. The plaintiff, having served part of his sentence, was granted a parole effective August 24, 1973, under the terms of which his liberty was to be severely reduced until February 5, 1979.

The plaintiff, claiming constitutional defects in his court-martial, brings suit in this court for back pay resulting from the forfeiture provision of his sentence, damages for lost veterans’ educational benefits, and an order granting him an honorable discharge. Plaintiff raises three counts in his petition for relief: (1) the inclusion in the record submitted to the authorities reviewing the court-martial of an investigation report made pursuant to Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (1970) violated his sixth amendment right of confrontation as well as due process; (2) constitutional due process was violated when the Uniform Code of Military Justice assigns multiple roles to the convening authority; and (3) the statute under which the plaintiff was convicted, 10 U.S.C. § 934, was constitutionally vague and overbroad. Plaintiff moved for and received a suspension of proceedings on the second and third counts in order to await a ruling by the Supreme Court on several pending cases. This case is before us now on plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment on count one which deals with the contents of the record made available to the convening authority and the Naval Court of Military Review.

Under Article 32, U.C.M.J., 10 U.S.C. § 832 (1970), it is required that before a charge or specification is referred to a court-martial, a full investigation must be conducted as to the circumstances and truth of the matter set forth in the charge. This article provides:

§ 832. Art. 32. Investigation
(a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

The plaintiff argues here that the Article 32 investigatory report prepared on the events surrounding this case, was included in the record presented to the convening authority and Military Court of Review and used by them in reviewing the facts and law behind his conviction. In addition to several other allegedly objectionable items, this particular Article 32 report included a statement made by Pfc. Damon L. Johnson as to his suspicions of plaintiff’s guilt and placing plaintiff near the scene of the crime. Plaintiff asserts that because Johnson did not testify at the court-martial and thereby subject himself to cross-examination, the consideration of his statement by the convening authority and the Court of Military Review violated both fifth amendment due process and the sixth amendment right of confrontation. In addition, he alleges that consideration of facts such as these, which were not introduced at the court-martial, contravenes federal rules and statutes governing the conduct of such court-martials and that a violation of governmental procedure of this alleged magnitude constitutes a denial of fifth amendment rights.

We note at the outset that under Article 36, U.C.M.J., 10 U.S.C. § 836 (1970), the President is authorized to prescribe rules of procedures for “courts-martial, courts of inquiry, military commissions, and other military tribunals * * *.” Pursuant to this authority, the Manual for Courts Martial (MCM) was issued. Under the regulation as thus promulgated by the President, MCM, paragraph 82b(l) and (5), the Article 32 investigation report is required to be appended to the complete set of records submitted to the convening authority and the Court of Military Review. This regulation provides:

b. Contents. (1) General. The record of the proceedings in each case will be separate and complete in itself and independent of any other document. The record will show all the essential jurisdictional facts. It will set forth a verbatim transcript, except as provided below, of all proceedings had in open sessions of the court, all sessions held by the military judge, and hearing held out of the presence of the members. See 74f(l) and Article 39.
******
(5) Appendages. Accompanying the original record — securely bound together — will be the original charge sheet and, if not used as exhibits or properly disposed of otherwise, the other papers which accompanied the charges when referred for trial, including the report of investigation under Article 32 and, if the trial was a rehearing or new or other trial of the case, the record of the former hearing or hearings. [Emphasis supplied.]

In deciding whether or not the inclusion of the particular Article 32 report in the record violated any substantive rights as alleged by the plaintiff, the use of the report permitted by the regulations must be considered.

The Uniform Code of Military Justice, 10 U.S.C. §§ 801-940 (1970) requires that a conviction made at a court-martial be reviewed first by the convening authority and then by the Court of Military Review, 10 U.S.C. §§ 860, 866 (1970). It further specifies that, unlike civilian appellate courts, the scope of review may include both the findings of fact and the conclusions of law. As a result, the review authorities are permitted to exercise their own discretion as to the weight that may be given to evidence obtained at the trial, credibility of witnesses, and other issues of fact normally reserved in civilian courts to the initial trier of facts. This discretion to review the factual basis of a conviction is limited, however, by MCM, paragraph 86b(l)(e) to competent evidence established at trial as follows:

b. Matters to be considered on review. (1) When proceedings resulted in findings of guilty. Before he may approve a finding of an offense or the sentence adjudged therefor, the convening authority must determine:
******
(c) That the competent evidence of record (87a(3); ch. XXVII) established beyond a reasonable doubt each element found guilty (ch. XXVIII); [Emphasis supplied.]
* * * * * *

The limitation on the scope of review to “competent evidence of record” would appear to exclude hearsay from consideration by the convening authority reviewing a court-martial conviction as to the guilt or innocence of a defendant. Since the Article 32 report is clearly hearsay, containing as it does statements not subjected to cross-examination, under MCM, paragraph 86b(l)(c), it could not be the basis of any decision on guilt or innocence by the convening authority. Thus, although the MCM requires that the Article 32 report be appended to the record, it forbids the reviewing authorities from considering its contents, except for mitigating purposes as stated below, where such contents do not represent competent evidence of record.

Although regulation MCM, paragraph 86b(l)(c) appears to govern only the convening authority and not the Court of Military Review, the Court of Military Appeals has ruled in United States v. Duffy, 3 U.S.C.M.A. 20, 11 C.M.R. 20 (1953) that reviewing authorities, in affirming or reversing a conviction, cannot use evidence that was outside of the trial record. This case, based not on regulation but on the earlier version of Article 64 and 66, U.C.M.J., 10 U.S.C. §§ 864 and 866 (1970), would clearly limit the scope of review open to the Court of Military Review in the same fashion that MCM, paragraph 86b(l)(c) limits the convening authority and prohibits the Article 32 report from being used in any review of the guilt or innocence of the present plaintiff. See also, United States v. Lanford, 6 U.S.C. M.A. 371, 20 C.M.R. 87 (1955).

State and federal courts have long held that a judge sitting in a non-jury case can hear both admissible and inadmissible evidence without reversible error taking place. In such a case, the judge will merely exclude from his consideration the inadmissible evidence and base his decision solely on the evidence that is competent and probative. Chief Judge Marshall in an early Supreme Court case reaffirmed this principle upon which all non-jury cases are based:

[A]s the cause was by consent not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions. But if the District Court improperly admitted the evidence, the only effect would be, that this Court would reject that evidence, and proceed to decide the cause, as if it were not in the record. It would not, however, of itself, constitute any ground for a reversal of the judgment. * * * [Field v. United States, 34 U.S. (9 Pet.) 182, 202, 9 L.Ed. 94 (1834).]

See also Weems v. George, 54 U.S. (13 How.) 190, 14 L.Ed. 108 (1851). The Court of Military Review, comprised of panels of military judges, all of whom are members of the bar of a federal court or of the highest court of their state as required by 10 U.S.C. § 866(a), is well qualified to exclude the contents of the Article 32 report from its review of a defendant’s guilt or innocence as mandated by the regulation. Just as no error or constitutional defect occurs when a judge sitting without jury hears proffered evidence ruled by him to be inadmissible, so, too, no error or constitutional defect occurs when the Court of Military Review sees an Article 32 report but as required by regulation, does not base its decision upon it.

This rule was observed in United States v. Swenson, 165 F.2d 756 (2d Cir. 1948) where evidence not available at trial was placed in the trial record forwarded to the staff judge advocate reviewing a conviction. The judge advocate noted in his affirmance of the conviction that he did not consider the added evidence presented to him. On appeal through a habeas corpus proceeding, the plaintiff argued that regardless of his intention it would be humanly impossible for the reviewing authority to blot from memory the contents of the new evidence. Judge Swan rejected this argument saying:

[W]e dp not think the rule applicable to courts-martial is different in this respect from the rule in civilian courts. Frequently the civilian judge in deciding facts must pass on the competence of evidence, determine to exclude it, and then decide the case as though he had never learned of the excluded evidence. Even in jury cases, it is at times assumed that a jury may disabuse their minds of facts which have been brought to their attention; * *. [Id. at 757.]

Although in Swenson, it is not clear whether the judge actually saw the evidence in question, the holding is broad enough to include the situation where in fact the military judge has seen evidence adjudged incompetent. In the instant case, although we agree that review of the conviction of the plaintiff should not be based on such inadmissible materials as the Article 32 report, there is no evidence that the reviewing authorities ever saw the report, or if they did, that they based their decision to some extent upon its content in violation of regulation and case law.

At oral argument, the plaintiff asserted that although the Court of Military Review is comprised of judges, the convening authority, who represents the first review of a conviction, is neither a judge nor a lawyer and therefore is less able to exclude from his decision the incompetent evidence represented by the Article 32 report. Although this may be true, the Uniform Code of Military Justice provides a second complete review based on both the facts and law of the case in the Court of Military Review. As such, the defendant at a court-martial is given an opportunity to have his conviction reviewed de novo by the Court of Military Review and any prejudice resulting from improprieties in the convening authority’s basis for his decision is completely removed.

Although as seen, the Article 32 report cannot be used in considering the guilt or innocence of the defendant at a court-martial, there is no prohibition against using it in reviewing the sentence. See United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973), and United States v. Lanford, supra. According to Articles 64 and 66, U.C. M.J., 10 U.S.C. §§ 864, and 866, the reviewing authorities can only reduce a sentence or overturn a conviction, never increase them. As a result, to the extent the Article 32 report is used in a review of a defendant’s sentence it serves only as mitigating evidence.

In United States v. Lanford, supra, during a review of the defendant’s sentence imposed after a guilty plea, evidence contained in his service record and not introduced at an earlier hearing was utilized by the reviewing authority. The defendant’s argument that his service record should not have been considered during the appeal of his sentence was rejected by the Military Court of Appeals when it said:

* * * The sentence imposed by the court is not final. It cannot be increased, but it may be mitigated by the reviewing authorities. The question then arises as to whether the interests of justice require these reviewing authorities to look no further than the trial proceedings for facts which would justify a reduction in the sentence. It seems to us that an accused would be the last person to urge that rule. In any event, we think that the law is less harsh. In our opinion, justice is fostered by giving the reviewing authorities power to go outside the record of trial for information as to the sentence. * * * [6 U.S.C.M.A. at 379.]

In a recent Court of Military Appeals case, United States v. Bethea, supra, although the court held that an Article 32 report cannot be used on appeal for deciding the guilt or innocence of a defendant convicted at a court-martial, it did reaffirm the holding of Lanford which had permitted the use of evidence de hors the trial record in reviewing the sentence.

Because the only way in which an Article 32 investigative report may be used by the convening authority or the Court of Military Review is to provide mitigating information for the potential reduction of a defendant’s sentence, there is no real prejudice resulting from its being seen by those reviewing bodies. In fact, in the instant case where the sentence was substantially lowered at each step of the appeal, being reduced from 80 years of hard labor to only 10, there is no evidence that the inclusion of the report adversely affected the present plaintiff’s rights.

Even beyond the consideration of whether inclusion of the Article 32 investigative report violates statute or regulation, the claims of the plaintiff fail to rise to the constitutional levels required before a review of a final decision in a court-martial is allowed in this court. Article 76, U.C.M.J., 10 U.S.C. § 876 (1970), makes final all decisions of courts-martial, as follows:

§ 876. Art. 76. Finality of proceedings, findings, and sentences
The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74), and the authority of the President. Aug. 10, 1956, ch. 1041, 70A Stat. 64.

Under the finality provision of section 876 it would appear that any appeal of a court-martial to this court arising in the posture of a suit for back pay would be prohibited. Cases have limited the reach of this statute by excepting collateral review through habeas corpus petitions, Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed 141 (1950); Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed 146 (1950), or by making exceptions for circumstances where a court-martial has so completely denied fifth or sixth amendment rights that the very jurisdiction of the court may be denied. Begalke v. United States, 286 F.2d 606, 148 Ct.Cl. 397 (1960), cert. denied, 364 U.S. 865, 81 S.Ct. 108, 5 L.Ed.2d 87; Shapiro v. United States, 69 F.Supp. 205, 107 Ct.Cl. 650 (1947).

In the most recent Supreme Court case in which review of a court-martial was sought through a suit here for back pay, United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), the Court held that where the alleged infirmities at the court-martial fail to rise to a constitutional level, this court has no jurisdiction to collaterally review the conviction. Although what is a sufficient constitutional claim is not precisely clear, the Supreme Court stated in Augenblick:

[A]part from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place only where the barriers and safeguards are so relaxed or forgotten, as in Moore v. Dempsey, supra [261 U.S. 86 [, 43 S.Ct. 265, 67 L.Ed. 543] (1923) ], that the proceeding is more a spectacle (Rideau v. Louisiana, 373 U.S. 723, 726 [, 83 S.Ct. 1417, 10 L.Ed.2d 663]) or trial by ordeal (Brown v. Mississippi, 297 U.S. 278, 285 [, 56 S.Ct. 461, 464, 80 L.Ed. 682]) than a disciplined contest. [Id, 393 U.S. at 356, 89 S.Ct. at 534.]

Where, as here, the inclusion of the Article 32 report was in accordance with official regulations, the court-martial cannot be considered a “spectacle” or a “trial by ordeal.” See Taylor v. United States, 199 Ct.Cl. 171 (1972); Gallagher v. United States, 423 F.2d 1371, 1378, 191 Ct.Cl. 546, 557 (1970), cert. denied, 400 U.S. 849, 91 S.Ct. 58, 27 L.Ed.2d 86. Similarly, since the issue of the Article 32 report was raised at all of the military forums available to the instant plaintiff and dismissed by them, it should not be permitted to be raised again here. See Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), where the court said:

* * * But these provisions [dealing with the finality of courts-martial] do mean that when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence. * * * [Id. at 142, 73 S.Ct. at 1049.]

For all of the reasons enumerated above, we hold that since the military reviewing authorities conducted themselves at all times in accordance with the regulations governing court-martials, and since the plaintiff’s claims with respect to count one do not rise to a constitutional level, we do not have jurisdiction to decide this portion of the case. United States v. Augenblick, supra. We, therefore, deny plaintiff’s motion for summary judgment as to count one and grant the defendant’s motion for summary judgment as to count one and dismiss plaintiff’s petition as to that count, and remand the remainder of the case to the trial judge for further proceedings regarding counts two and three.