author: GIBSON, Circuit Judge.

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Appellant, v. ACE HARDWARE CORPORATION, Appellee.
    No. 73-1498.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 11, 1974.
    Decided April 3, 1974.

      Jacob I. Karro, Atty., U. S. Dept, of Labor, ^Washington, D. C., for appellant.
    Dayton O. Rasmussen, Jr., and E. R. Freeberg, Midwest Employers Council, Inc., Omaha, Neb., for appellee.
    Before MEHAFFY, Chief Judge, and GIBSON and WEBSTER, Circuit Judges.
   GIBSON, Circuit Judge.

The Secretary of Labor appeals from a judgment entered for defendant Ace Hardware Corporation (hereinafter Employer) in this action instituted under Section 7(b) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. We affirm the judgment entered for the Employer.

This appeal presents an issue of first impression before any appellate court. At issue is whether the Secretary’s actions in this case complied with the statutory directive of attempting to effect voluntary compliance through “informal methods of conciliation, conference, and persuasion” pursuant to 29 U.S.C. § 626(b) before instituting legal action. The District Court found he did not, holding that the Secretary did not properly attempt to achieve voluntary compliance by the Employer before instituting legal action.

Employer, a corporation with principal offices in Chicago, Illinois, operates warehouse distribution plants in Atlanta, Georgia; San Francisco, California; Chicago, Illinois; and Lincoln, Nebraska, the location of the alleged discriminatory practices in this case. In late 1971, Employer commenced operating the Lincoln plant and transferred Charles L. Bates from Chicago to be the general plant manager. In November, 1971, Bates reviewed the employees already assigned to the Lincoln plant and chose Dallas D. Howell, a truck driver for over 16 years with Employer, to be traffic manager, whose responsibilities included the initial interviewing of new applicants for positions as truck drivers. Howell had never hired employees before and was not aware of the Act. Bates was generally aware of the Act, but did not inform Howell of it. Bates made the final decision concerning the hiring of new employees, although Howell could eliminate applicants before Bates reviewed anyone.

When Howell assumed his position as traffic manager, the company had received 45 applications for six or seven positions as truck drivers. Howell adopted the following procedure to screen the applicants for employment. After reviewing the applications. Howell scheduled and conducted personal interviews. During those interviews, Howell would write certain comments on a section marked “remarks” on the application forms. On Byrl A. Prichard’s application, the notation “Age?” was written. Prichard was 52 years old during the winter of 1971. Robert H. Long’s application had the same notation. Cecil Raymond Richard’s application contained the comment, “to [sic] old.” On James Elmer Johnson’s application, “Age?” also appeared. “No” was written on the applications of Donald Eugene Rudy, Herbert Jess Grady, and Samuel D. Tipton. The record does not reveal if any comments were written on Bernard Chapman’s application. Each of the above applicants was over 50 years of age. After the initial interview with Howell, some applicants were scheduled for polygraph examinations, Department of Transportation tests (known as D.O.T.’s), and physical examinations. None of the applicants over 50 years of age was hired by the Employer before December 29, 1971, the date of the first visit by the compliance officer with the Department of Labor.

Acting upon complaints of Prichard and Johnson, the Secretary decided to investigate the Employer for possible violations of the Act. On December 29, 1971, Donald R. Chleborad, a compliance officer with the United States Department of Labor, Employment Standard Administration, visited the Employer. Chleborad’s job included investigating violations of the Act in question, the Fair Labor Standards Act, the Minimum Wage and Overtime Act, and others. On December 29th, Chleborad met with Bates from approximately 9:00 a. m. to 3:00 p. m. to discuss violations of the Act. He informed Bates that he was investigating possible violations of the Act as reported by Prichard and Johnson. Bates was cooperative, and the two reviewed and discussed the actual applications in Howell’s office. Chleborad asked Bates what the notations referring to “age?” meant and was told that “ ‘age’ does not mean ‘age’ as such; it means an unqualified individual or somebody who cannot do the job.” Bates told Chleborad that Prichard was not hired because he was unqualified and that Johnson had failed the Department of Transportation tests. The meeting ended and Chleborad said that he would contact Bates again.

On January 7, 1972, Chleborad returned and initially met with Bates. Howell was called in by Bates and, upon questioning by Chleborad, said that Johnson had failed the Department of Transportation tests and Prichard was unqualified and had a bad attitude as reasons for the company refusing to hire them. Chleborad was informed that Long was being hired, as it turned out on a part-time basis when additional drivers were required (termed “extra board” by the Employer and “10%” by the workers). Chleborad was also told at this meeting that “age” referred to “an unqualified individual or that no job opening was available.”

On January 28 or 29, 1972, Chleborad telephoned Bates and told him the failure to process applications of those over 50 years of age “would definitely appear to be a violation of the Age Discrimination Act.” Bates said that he still would not hire Prichard. Chleborad told Bates that he would “submit the file accordingly to the supervisor, and in turn to the Regional Office for consideration.” No other information pertinent to this appeal was exchanged between the Secretary and the Employer. The Secretary did not contact the Employer again before the commencement of this action, approximately four months later.

On May 23, 1972, the Secretary filed the complaint in this action against the Employer seeking to permanently enjoin any violations of the Act by the Employer, for costs of the action, further equitable relief including any “amounts due individuals by reason of said violations,” interest on those amounts, and an order compelling the employment of these individuals. The individuals were not named in the complaint, and the trial mainly centered on the alleged violations in regard to Prichard and Johnson. During trial, the District Court admitted a field operations handbook (an exhibit of both parties) issued by the Secretary to compliance officers setting forth operative procedures to be employed to implement this Act and also other federal labor acts.

The District Court first held:

I think it is clear by the greater weight of the evidence that Howell preferred men of some maturity, but was reluctant to take as truck drivers men over the age of 50 years; that he would have hired men over the age of 50 years, if he had not been able to hire enough truck drivers under that age who were qualified; that age was a factor in Howell’s mind from the outset of the employment of truck drivers in November, 1971, and remained a factor throughout that employment process; and that Byrl A. Prichard was not hired by the defendant because of age, in violation of the Act.

However, the District Court found for the defendant reluctantly, because the Secretary failed to comply with the voluntary compliance requirement of the Act, which in part reads:

Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

29 U.S.C. § 626(b).

In relying on the standards that the field operations handbook describes, the District Court found that the compliance officer failed to request the Employer to “make whole” Prichard (basically pay wages he would have received had he been hired), did not specifically and directly tell the Employer that the file was being referred for review, and did not allow the Employer the opportunity to express his views, in writing or otherwise, on the charges, specifically in light of the “make whole” remedy. Since these findings of fact are not clearly erroneous and the conclusions of law involve no interpretive error, we- affirm the District Court with the following comments.

As we have not previously interpreted any provision of the Act and since the implementation of the Act will be affected by this decision, a more extensive analysis of the Age Discrimination in Employment Act (ADEA) is in order.

Passed in 1967, the Act was designed to promote “employment of older persons based on their ability rather than age” and to prohibit “arbitrary age discrimination in employment.” 29 U.S.C. § 621(b); accord, Hodgson v. First Fed. Sav. & L. Ass’n of Broward Co., Fla., 455 F.2d 818, 820 (5th Cir. 1972) (hereinafter First Fed. Sav.); Stringfellow v. Monsanto Company, 320 F.Supp. 1175, 1179 (W.D.Ark.1970). President Johnson in his Older American message of January 23, 1967, recommended the passage of the Act and stated:

Hundreds of thousands, not yet old, not yet voluntarily retired, find themselves jobless because of arbitrary age discrimination. Despite our present low rate of unemployment, there has been a persistent average of 850,000 people age 45 and over who are unemployed. Today more than three-quarters of the billion dollars in unemployment insurance is paid each year to workers who are 45 and over. They comprise 27 percent of all the unemployed, and 40 percent of the long-term unemployed.

Quoted in H.R. No. 805, 90th Cong., 1st Sess., U.S.Cong. & Adm.News 2213, 2214 (1967). (The Senate Bill was passed instead of the House Bill; however, the Senate Bill contained the exact language of the original House Bill.) ADEA was passed by Congress and its purview limited to persons “at least forty years of age but less than sixty-five years of age.” 29 U.S.C. § 631.

The Act commendably seeks to remedy the neglect of older persons in employment practices by employers, employment agencies, and labor organizations, 29 U.S.C. §§ 623(a), (b) and (c). Advertising for employees stating a prefer-enee for a certain age of a person is also prohibited by the Act. 29 U.S.C. § 623(e). Congress, however, also realized that valid decisions in hiring and discharge may provide a defense to a charge of an arbitrary discriminatory employment practice based on age. In part, an employer, employment agency, or labor organization’s employment action is not a violation of the Act if “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business,” “where the differentiation is based on reasonable factors other than age,” or when the allegedly discriminatory action is “to discharge or otherwise discipline an individual for good cause.”

The remedies of the Act are basically described in two sections. Section 626 (b) provides in part:

(b) The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided; That liquidated damages shall be payable only in cases of willful violations of this chapter.' In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

Unpaid minimum wages and unpaid overtime compensation referred to in the above section and in 29 U.S.C. § 216(b) has appropriately been interpreted by the District Court in Monroe v. Penn-Dixie Cement Corporation, 335 F.Supp. 231, 234-235 (N.D.Ga.1971) (footnotes omitted), in a discharge case, to mean “the difference between the value of the compensation by way of salary together with other specific monetary benefits, such as increased pension benefits which would have vested prior to trial, to which plaintiff would be entitled had he remained employed by defendant until the trial date and the value of his total benefits and earnings at other jobs from his discharge until the trial date.” Of course, in a case as this when the alleged discriminatory action is the refusal to hire, the damages would be computed with the following changes. In such a ease, the damages would be the difference between what the applicant would have received in specific monetary benefits prior to trial had he been hired less whatever he received in wages if he secured employment. Specific questions concerning damages or other relief are within the equitable discretion of the district court pursuant to 29 U.S.C. § 626(b) and must await future resolution from the courts. Also, since ADEA incorporates 29 U.S.C. § 216(b) pursuant to 29 U.S.C. § 626(b), the district court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 626(b); accord, Monroe v. Penn-Dixie Cement Corporation, supra at 235-236 (attorney’s fees and costs would have been allowed if plaintiff had received a judgment).

We turn now to the specific major issue in this case. The Secretary argues that the efforts of his compliance officer through the two personal meetings and one telephone call constituted substantial compliance with the voluntary compliance requirement of the Act. We disagree.

An integral part of the Act is the express provisions allowing the employer or other organization the opportunity to voluntarily comply with its provisions before legal action is initiated. The introductory Congressional findings and purposes set the spirit and standard to be followed in achieving the enacted goals. Section 621(b) reads in part: “It is therefore the purpose of this chapter * * * to help employers and workers find ways of meeting problems arising from the impact of age on employment.” (emphasis added). To achieve the goal of eliminating discriminatory employment practices in relation to age, the Secretary’s duties should be seen as aiding not only the worker in gaining or maintaining employment, but also the employer in fulfilling his obligations under the law. In this period in our nation in which governmental regulations permeate many facets of previously unregulated activity, government officials must approach their service with a spirit and an attitude of helpfulness and concern for all persons with whom they deal and not with ambiguity, nonchalance, and heavy-handedness of an all-pervasive federal bureaucracy.

The Act expressly provides for giving the employer or other organization the opportunity to voluntarily comply with the requirements of the Act. Section 626(b) reads in part:

Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

The legislative history of the Act strongly indicates that conciliation, conference, and persuasion must constitute strong, affirmative attempts by the Secretary to effect compliance before resorting to legal action. The House Report makes this clear by stating:

It is intended that the responsibility • for enforcement vested in the Secretary by section 7, be initially and exhaustively directed through informal methods of conciliation, conference, and persuasion and formal methods applied only in the ultimate sense. (emphasis added).

H.R. No. 805, 90th Cong., 1st Sess., U.S. Code Cong. & Admin.News pp. 2213, 2218 (1967).

From that language and the express provisions of the Act, the Secretary must initially use exhaustive, affirmative action to attempt to achieve conciliation before legal action is begun. In the fiscal year of 1971, the Wage and' Hour Division of the Department of Labor reached agreements through conciliation with 90 per cent of the 2,522 establishments found in violation of the Act. H. Callahan and C. Richardson, Protecting the Older Worker, 6 J. Law Ref. 214, 225 (1972). Obviously the Secretary strongly recognizes the enacted obligation to conciliate and has been largely successful in his efforts. Also during the calendar year 1971, fifty suits under the Act were filed, eight of which were dismissed due to parties’ stipulations to comply to certain agreements. H. Callahan and C. Richardson, supra at 226. Although the availability of and resort to courts allow for a method of resolving conflicts, the framework of a free people and the functioning of their government depends not essentially upon the courts, but upon the desire of the people to agree within the framework of their law and to compromise the differences outside the walls of a courtroom. The voluntary compliance provisions recognize this principle and also wisely perceive that conciliation is a difficult process in which exhaustive, affirmative action, in this situation initiated by the Secretary, is demanded to achieve resolution without the necessity of legal action.

In this case, we think that the compliance officer did not fulfill, the affirmative burden of exhaustively employing informal methods to allow the Employer the opportunity to comply voluntarily with the Act. Instead of actively pursuing resolution of the conflict, the Secretary let the case lay dormant for almost four months and filed this present action. Specifically, we affirm the District Court’s finding that the compliance officer improperly did not inform the Employer that “back wages” should be paid to Prichard. In order for the Employer to comply voluntarily with the Act, he must know specifically what the Secretary desires him to do in order to reach that result. Persuasion cannot be accomplished if the desired goal is unknown. The Secretary by not informing the Employer that back wages are recoverable under the Act and by later instituting a law suit for such damages is defeating the very purpose of attempting to persuade the Employer to comply with the Act. The Secretary’s desires and the requirements of the Act should be clearly explained to the employer or alleged violator.

Although the record shows conflicting testimony on whether the compliance officer directly informed the Employer that the file “was being referred for review,” we think that the District Court’s finding that the compliance officer did not clearly and affirmatively tell the Employer that the file was in fact being referred to the Secretary for review and possible legal action is not clearly erroneous. The District Court succinctly and perceptively held that “[vjoluntary compliance through conciliation, conference, and persuasion is more likely to be effected when the employer clearly understands that the matter will proceed at a level beyond that of the compliance officer if there is not a voluntary resolution of the dispute.”

We further hold that the District Court correctly held that the Employer should have been given the opportunity to respond, at least orally, to the violations in light of a “make whole” remedy.

Although the District Court did discuss the compliance officer’s conciliation attempts in relation to the standards announced in the Secretary’s handbook for conciliation officers, which was admitted into evidence as a joint exhibit of the parties, it is not entirely clear from the decision whether the District Court thought that the provisions of the handbook itself are binding regulations that must be followed by the Secretary. Stated in other words, does a violation of the handbook provisions constitute a per se violation of the Act concerning conciliation attempts? We generally agree with the Secretary that “[c]onciliation is notably an assignment to be played by ear” for “it requires flexibility and responsiveness to the attitudes of the other participants and to the developing positions taken by them in conversations.” In this regard, courts would be unwise to hold the Secretary to rigid positions announced in the handbook as guidelines for the compliance officers. Handbooks should be ideally written to allow for far-reaching guidelines to implement enacted provisions. In short, there should be a measure of safety written into the procedures to be followed. Courts would also lack prudence to dictate to the Secretary exactly how to perform his duties, which are expressly within the expertise of the Secretary and his department. Our decision affirms the conclusions reached by the District Court, not because the conciliation officer failed to abide by the rules of the handbook, but rather, we think, the statute itself required at least the performance of the affirmative actions by the Secretary to eliminate discriminatory practices and effect voluntary compliance through conciliation and persuasion that were described herein, but not attempted in this case.

The Government correctly argues that the handbooks cannot have the force or effect of regulations that are binding upon the Secretary. These handbooks are very similar to the handbooks in Hawkins v. Agriculture Stabilization and Conservation Committee, 149 F.Supp. 681 (S.D.Tex.1957), in which the court noted that the handbooks were not published in the Federal Register, were not intended by any government officials to have the force and effect of law, and were only guidelines for government personnel. That rationale applies here. In addition, since the handbook was the joint exhibit of the parties, the Government does not argue on appeal that its admission was prejudicial error.

The Secretary last submits that the District Court should not have denied all relief, but “should have stayed the proceedings to permit the Secretary to make necessary additional efforts toward effecting voluntary compliance.” The Employer argues that the statutory directives are a condition precedent to the court entertaining jurisdiction of the legal action. We think the District Court would have had the power to order this under § 626(b). However, we think that § 626(b) invests a broad discretion in the District Court “to grant such legal or equitable relief as may be appropriate to effectuate the purposes” of the Act. We cannot say that the District Court’s failure to grant a stay of the proceedings was an abuse of discretion, particularly in light of the express statutory provision of the Act requiring conciliation attempts before instituting legal action.

Judgment affirmed.

      . The Honorable Warren K. Urbom, Chief Judge, United States District Court, District of Nebraska, heard the case without a jury, and his opinion is published as Brennan v. Ace Hardware Corp., 362 F.Supp. 1156 (D. Neb.1973).

      . The record indicates that there may be a conflict concerning what information was recorded on these applications by Howell during or immediately after the interviews and what might have been recorded at a later time, specifically after visits by the conciliation officer with the Department of Labor. In evaluating the Secretary’s efforts to comply with the statutory directives, we accord the unresolved factual issues in favor of the Secretary, resting largely on the testimony of Donald It. Chleborad, a compli-anee officer with the United States Department of Labor, Employment Standard Administration, who investigated Employer in this case.

      . Apparently Howell and Bates concluded that Prichard had a bad attitude because Prichard was insistent to find out why he was not hired and two other truck drivers whom he knew were hired. Prichard had called Howell and questioned him concerning his failure to obtain employment.

      . On this contested issue of what Chleborad told Bates, the District Court concluded from the entire testimony that:
      [T]here was no informing by the compliance officer to the employer that the file in fact was being referred for review. Twice the compliance officer informed Bates that the compliance officer would discuss the matter with his supervisor and once told Bates that he, the compliance officer, would “consider” sending the file to the regional office.
      Obviously, the District Court credited other testimonies than Chleborad’s.

      . None of the complainants testified that he wanted employment with defendant. Prieh-ard, who had gained other employment as a truck driver before trial, testified that he did not want to work with defendant because “I don’t think it would be a very good relationship.” Prichard obtained permanent employment on February 25, 1972, and drew unemployment of $504.00 and part-time wages as a truck driver of $136.70 from approximately December 1, 1971, until February 25, 1972.
      Although Prichard testified that he accepted an employment offer made by Howell on December 16th or 17th as an “extra board” truck driver, Howell testified that Prichard was never offered any type of employment. Nevertheless, Prichard never did work for the Employer.

      . "Those sections read:
      § 623. Prohibition of age discrimination— Employer practices

      (a) It shall be unlawful for an employer—
      (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
      (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
      (3) to reduce the wage rate of any employee in order to comply with this chapter.

        Employment agency practices

      (b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.

        Labor organization practices

      (c) It shall be unlawful for a labor organization—
      (1) to exclude or to expel from its membership, t>r otherwise to discriminate against, any individual because of his age;
      (2) to limit, segregate, or classify its membership, or to classify or fail to refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employ-meat opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s age;
      (3) to cause or attempt to cause an em- . ployer to discriminate against an individual in violation of this section.

      . 29 U.S.C. § 623(f)(1) ; accord, First Fed. Sav., supra, 455 F.2d at 820; Stringfellow v. Monsanto Company, supra, 320 F.Supp. at 1179.

      . 29 U.S.C. § 623(f)(1).

      . 29 U.S.C. § 623(f)(3). Section 626(f)(2), concerning seniority systems, was interpreted in Hodgson v. American Hardware Mutual Insurance Company, 329 F.Supp. 225 (D.Minn.1971).
      For a discussion of other cases interpreting the Act and not widely reported and a general view of the Act, see H. Callahan and C. Richardson, Protecting the Older Worker, 6 J.Law Ref. 214 (1972) ; Annot., 29 A.L. R.3d 1407 (1970).

      . First Fed. Sav., supra, a “refusal-to-hire” case, allowed recovery of back wages, but did not describe what they would be.

      . The District Court in Stringfellow ambiguously stated:
      It should be noted that the Act makes no provision for the imposition of attorney’s fees. It provides specifically that liquidated damages shall be payable only in cases of willful violation thereof.
      Stringfellow v. Monsanto Company, supra, 320 F.Supp. at 1181. In that case, the plaintiff was unsuccessful in establishing a violation of the Act, and we interpret that above statement to mean that a plaintiff is not entitled to receive attorney’s fees and costs when no judgment has been entered for the plaintiff. If judgment is entered for the plaintiff, attorney’s fees and costs are recoverable. 29 U.S.C. §§ 216(b) and 626(b).

      . The Secretary argues on appeal that “it requires an unusual degree of credulity to believe that the three conversations in question ran their course without the compliance officer’s having requested the manager to ‘make whole’ the individuals involved.” The record clearly states otherwise. Chleborad clearly testified that “[b]ack wages were not discussed” during the investigation and conciliation attempts. Appendix at 73.

      . See footnote 4, supra, and text accompanying footnote 4.

      . The Secretary has prepared a handbook for conciliation officers to aid them in the implementation of ADEA and several other federal labor acts. Pages are altered and inserts added on a continual basis. After enactment of ADEA, provisions relating to that Act were added as an appendum to the handbook, which already was in use for implementing other acts.


source: Caselaw Access Project

author: CRAVEN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ted Lewis JOHNSON, Jr., Appellant.
    No. 73-1740.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1974.
    Decided March 27, 1974.
    Fred Warren Bennett, Washington, D. C. (Court-appointed counsel), for appellant.
    Paul Trible, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

In this appeal from a conviction of bank robbery, we think only two of the four issues briefed merit discussion.

I.

Appellant Johnson assigns error in the failure and refusal of the trial judge to give the so-called- Telfaire instruction on the question of identification. United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972). In a case argued on appeal the same day as this one, United States v. Holley (4th Cir. 1974), we have adopted the Telfaire rule but have adopted it prospectively. We, therefore, hold that at the time Johnson sought a Telfaire instruction the refusal to give it was not reversible error. Moreover, the instruction that was given by the district judge was fair and specifically informed the jury that “the most important issue is the element of identity.” United States v. Levi, 405 F.2d 380 (4th Cir. 1968). Even so, we would be inclined to reverse as in Holley were it not for circumstances greatly reducing the possibility of misidentification.

Johnson was identified by a customer in a barber shop, McCree, who saw the robbers as they walked past the shop, which was adjacent to the bank. Mc-Cree testified that as Johnson walked past the plate-glass window of the barber shop he stopped and looked directly into the shop. The look on Johnson’s face was so unusual that McCree immediately and correctly concluded that the bank was about to be robbed. As the robbers left the bank, McCree observed them from inside the barber shop and then followed them down the sidewalk until he was threatened with a weapon by the man he later identified as Johnson. Within less than a month McCree identified a photograph of the defendant from a group of photographs exhibited to him by FBI agents. Later he picked Johnson from a lineup. This identification testimony is more convincing than that in Holley, and in addition, there is some degree of corroborating circumstantial evidence. The alleged getaway car had on it four latent fingerprints of Johnson. Moreover, Johnson’s behavior in the use of fictitious names and flight to avoid prosecution was incriminating.

II.

The district judge disclosed the prior convictions of the defendant appearing in the presentence report. In doing so he complied with our decision in Baker v. United States, 388 F.2d 931 (4th Cir. 1968), and with the express language of Fed.R.Crim.P. 32(c)(2) that the trial judge may disclose “all or part . . . . ” His failure to disclose more

In United States v. Bryant, 143 U.S.App.D.C. 53, 442 F.2d 775, cert. denied, 402 U.S. 932, 91 S.Ct. 1534, 28 L.Ed.2d 866 (1971), the Court of Appeals for the District of Columbia took half a step in

is not reversible error. But we reiterate, as we said in United States v. Knupp, 448 F.2d 412 (4th Cir. 1971) (en banc), that disclosure when requested should be favored in order that the appearance of justice will be fostered and respect for the administration of the law increased. the direction of disclosure. Adhering to the language of Fed.R.Crim.P. 32(c)(2), that court affirmed the discretion of the district judge but required that the exercise of discretion must appear on the face of the record. We do not go so far, but once again, we urge the district judges in this circuit to adopt, voluntarily, a policy of routinely releasing the contents of presentence reports in their entirety, subject to exception only for confidential matter that can reasonably be expected to adversely affect the defendant, or harm others, or substantially impede the administration of justice.

Affirmed.


author: FIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ted Lewis JOHNSON, Jr., Appellant. UNITED STATES of America, Appellee, v. Marvin Thomas LESTER, Appellant. UNITED STATES of America, Appellee, v. John Edward LEE, Appellant.
    Nos. 73-1308 to 73-1310.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 7, 1973.
    Decided April 5, 1974.

      Fred Warren Bennett, Washington, D. C. (Court-appointed counsel), for appellants.
    Oscar W. Bannister, Jr., Asst. U. S. Atty. (John K. Grisso, U. S. Atty., on brief), for appellee.
    Before WINTER, FIELD and WIDENER, Circuit Judges.
   FIELD, Circuit Judge:

Ted Lewis Johnson, Jr., Marvin Thomas Lester and John Edward Lee appeal from their convictions for armed bank robbery. 18 U.S.C. § 2113(d).

At about 9:00 a. m. on September 22, 1972, four individuals wearing green jump suits and ski masks and carrying pillow cases robbed the Lewis Plaza Branch of the South Carolina National Bank in Greenville, South Carolina, of $15,904. The robbers fled from the bank in a 1967 Plymouth automobile which they abandoned about one-half mile from the bank and transferred to another getaway car. A short time later a man and a woman companion left the second car at a rental lot at the Green-ville airport and boarded a flight for Atlanta.

FBI agents investigating the robbery quickly found the abandoned Plymouth and witnesses put them on the trail of the second car, a red Toyota. Phillip N. Enlow, Assistant Special Agent in charge of the Columbia, South Carolina, FBI office recalled a similar robbery in the Charlotte, North Carolina, area where the robbers, including a woman, effected an escape by a flight from Charlotte to Atlanta. At Enlow’s direction, the FBI agents went to the Green-ville airport where they found the Toyota which contained a ski mask and green coveralls. The agents also discovered in a trash can near the Toyota a white pillow case stamped with a Golden Eagle Motel mark with a bank teller’s tabulation on the inside. Upon inquiry at the motel, the agents learned that five reservations for an Atlanta flight had been made that morning in the names of Mr. and Mrs. B. Kelly, R. P. Deskin, W. Bell and J. Hart. The agents also obtained descriptions of the male and female occupants of the Toyota from employees of the car rental agency and the airline. The woman was described as wearing a white uniform with a white hat and carrying a large handbag, while the man wore white pants and a white shirt. All of this information was relayed to the Atlanta FBI office by Enlow who offered the opinion that based upon the modus operandi of the Charlotte robbery the woman would be carrying the money. The Atlanta FBI office ordered the plane to circle the airport until agents could be dispatched to the terminal.

The FBI agents met the couple traveling as Mr. and Mrs. B. Kelly about 10:50 a. m. as they deplaned and escorted them to a room at the airport for questioning. Kelly told the agents that his name was James Leroy Green, while Mrs. Kelly maintained that she was Velma Kelly but offered no identification to that effect. During the questioning Mrs. Kelly’s handbag was taken from her by the agents. The agents then took the couple to the FBI field office in Atlanta where they were interrogated in separate rooms. During the course of questioning Mrs. Kelly about her identification she indicated that she had identification in her handbag. Thereupon, an agent opened the handbag which disclosed a white pillow case containing a large amount of money and at the bottom of the handbag were identification cards which disclosed that Mrs. B. Kelly was in fact Eldrena Stewart. Upon further questioning Miss Stewart took from her undergarments approximately $2200 contained in wrappers bearing the inscription “South Carolina National Bank.” The agent determined that the money taken from Stewart included “bait money” from the Greenville bank and also learned that the true identification of Kelly was Ted Lewis Johnson, Jr. Shortly thereafter, formal arrest warrants for Stewart and Johnson were procured.

Johnson was charged in a three count indictment with (1) bank robbery (18 U.S.C. § 2113(a)), (2) armed bank robbery (18 U.S.C. § 2113(d)), and (3) possession of stolen money (18 U.S.C. § 2113(c)). Stewart was charged in counts one and three and Lester and Lee in counts one and two. Stewart entered a guilty plea to possession of stolen money and count one was dismissed as to her. A jury found the appellants guilty of armed robbery, and they were sentenced to the custody of the attorney general for twenty years. All other counts were dismissed.

I.

The primary point on Johnson’s appeal is his contention that the money taken from Stewart’s handbag was the product of an illegal search and its use as evidence in the trial violated his Fourth Amendment rights. The district court conducted a suppression hearing and concluded that the agents had probable cause to arrest Johnson and Stewart at the Atlanta airport and that an arrest did, in fact, take place at that time. Accordingly, the district judge upheld the validity of the search on the ground that it was incident to a lawful arrest.

We agree with the district court. The Atlanta agents had the authority to make the arrest under 18 U.S.C. § 3052, and when they took Johnson and Stewart into custody at the airport and restricted their liberty of movement the arrest was complete. Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). “No formal words are required, nor is a declaration necessary at the time of arrest.” Moran v. United States, 404 F.2d 663, 666 (10 Cir. 1968); United States v. Baxter, 361 F.2d 116 (6 Cir. 1966). Whether the arrest at the airport was constitutionally valid depends, of course, on whether “the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [Stewart] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L. Ed.2d 142 (1964). See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L. Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 70 S.Ct. 31, 94 L. Ed. 513 (1949). The record provides ample support for the finding of the district judge that the Atlanta agents had probable cause and reasonable grounds to believe that both Stewart and Johnson had committed an offense and that, accordingly, the arrest was constitutionally valid.

Aside from his challenge of the arrest, Johnson contends that the search of Stewart’s handbag was unjustified since it was no longer within her “immediate control” as required by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We find this argument unpersuasive. When the investigative questioning focused on the handbag and required that it be opened to verify Stewart’s identification it lost its innocuous character and became a legitimate subject of the officers’ search. Assuredly this was not an unreasonable act on the part of the officers. To permit Stewart, a suspected participant in an armed bank robbery, to open the handbag would have been, to say the least, indiscreet. The answer to Johnson’s argument is found in Chimel itself :

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. * * * And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front ' of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the ar-restee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S. at 762, 763, 89 S.Ct. at 2040.

Finally, Johnson urges that since the handbag was not searched at the time Stewart was taken into custody or shortly thereafter, it was not “substantially contemporaneous” with her arrest and was unreasonably remote under the principle of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1963). We find no suggestion in Preston that the term “contemporaneous” contemplates immediacy; that case merely held that “[o]nee an accused is under arrest and in custody, then a search made at another place without a warrant is simply not incident to the arrest.” 376 U.S. at 367, 84 S.Ct. at 883. That is a far cry from the present case where Stewart was undergoing custodial questioning with the handbag close at hand in the same room.

Since the search of Stewart’s handbag was constitutionally permissible, the evidence was properly admitted at Johnson’s trial.

II.

Appellant Marvin Thomas Lester contends that a confession given by him to an FBI agent was coerced and that the district court employed an incorrect standard of proof in making the determination that the confession was voluntary.

Briefly stated, the facts bearing upon Lester’s claim are as follows: After his arrest on the bank robbery charges Lester was placed in the Fulton County, Georgia, jail and on October 2, 1972, his wife visited him at the jail. Lester instructed her to arrange bail for Claude Franklin, a cell mate who was being held on shoplifting charges, and pursuant to these instructions Mrs. Lester engaged a person to post the bond. Thereafter, when Franklin’s name was called for release Lester responded. However, when the officials checked the fingerprint card which had been made at the time of Franklin’s arrest they discovered Lester’s ruse and, of course, returned him to his cell. In investigating the attempted escape, the officials found Mrs. Lester in an automobile near the jail and took her into custody. The following morning an FBI agent came to Lester’s cell to interview him relative to escape and at that time Lester stated that his wife was innocent of complicity and if the agent would assure him that she would not be prosecuted he would “lay it all out about the bank robbery.” The agent responded that the prosecution of Mrs. Lester rested solely within the discretion of the United States Attorney but that he would advise him of Lester’s cooperation. Thereafter, Lester signed the waiver card ánd made the confession regarding the robbery. No charges were filed against anyone with respect to the abortive escape. Lester urges, however, that the confession was coerced by the hostage posture of his wife.

The district court conducted an extensive suppression hearing with respect to the confession and held that it had been freely and voluntarily made within the meaning of 18 U.S.C. § 3501. In considering the issue of voluntariness the court ruled that the Government was not required to prove voluntariness beyond a reasonable doubt, but need only demonstrate that fact by a preponderance of the evidence. In making this ruling the district judge was of the opinion that the Supreme Court decision in Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L.Ed.2d 618 (1972), was controlling and that the standard prescribed for this circuit in United States v. Inman, 352 F.2d 954 (4 Cir. 1965), was no longer viable. Inman, which was decided shortly after the Supreme Court’s decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), directed the courts of this circuit that upon proffer of a confession the judge should conduct a voir dire. hearing on the issue of voluntariness in the absence of the jury, and upon the evidence presented at such hearing should determine the admissibility of the confession, and permit it to go to the jury only if he was convinced beyond a reasonable doubt that it was voluntary. Our adoption of the reasonable doubt standard in Inman, however, was not dictated by constitutional considerations in the light of Jackson, but was based upon our supervisory power over district courts within this Circuit. Ralph v. Warden, Maryland Penitentiary, 438 F.2d 786, 793 (4 Cir. 1970). See Morris v. Boles, 386 F.2d 395, 402 (4th Cir. 1967). Aside from the District of Columbia we apparently have been the only Circuit to require this high degree of proof, a position that has been the subject of some criticism.

Whether, if this question were still open country, we would continue to adhere to the Inman standard may be debatable, but we conclude that Lego requires that we re-examine our position. Although the decision in that case involved the standard applied by the state courts of Illinois, the prefatory statement of the opinion indicates that at least one of the reasons for granting certiorari was to attain uniformity on this issue in the federal system. Elaborating upon Jackson, the Lego Court stated that the requirement of “a reliable and clearcut determination that the confession was in fact voluntarily rendered” was satisfied if the judge was persuaded of that fact “at least by a preponderance of the evidence.” The Court emphasized that the purpose of the voluntariness hearing is to determine the admissibility of the evidence and “has nothing whatever to do with improving the reliability of jury verdicts.” In rejecting the petitioner’s constitutional argument the Court stated that it was “unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt.” That we fall within the reach of the decision is evident from the footnote to this observation:

“It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule. Cf. Ralph v. Warden, swpra, n. 1, clarifying United States v. Inman, supra, n. 1; Pea v. United States, supra, n. 1.” 404 U.S. at 488, n. 16, 92 S.Ct. at 626.

And while the Court specifically recognized the right of the States to adopt a higher standard, we read the plain thrust of its opinion as a direction that the federal courts shall follow the preponderance standard. Upon this reading of Lego, the directions of Inman must be revised to admit those confessions into evidence where voluntariness is demonstrated by a preponderance of the evidence rather than the higher degree of proof. It follows, of course, that we affirm the action of the district judge in permitting Lester’s confession to go to the jury.

III.

[.5] The third appellant, John Edward Lee, complains that the district court erred in admitting into evidence a “mug shot” photograph of him incident to the testimony of an identification witness. In support of this claim Lee relies upon our decision in United States v. Harman, 349 F.2d 316 (4 Cir. 1965), but we find that case readily distinguishable. All of the writing on Lee’s photograph had been taped over and the court instructed the jury to draw no inferences from such concealed portions. For this reason, and since the photograph had legitimate probative relevance to demonstrate the difference in Lee’s appearance at the time of trial as compared to the time of a prior photographic identification, we find Lee’s contention answered by the observation of the Second Circuit in United States v. Calarco, 424 F.2d 657, 661 (1970):

“We conclude, however, that introduction of these file photographs, as modified was not likely to cause the jury to infer the existence of prior criminal convictions. It is much more likely that the jury assumed they were taken by the police when the appellants were arrested on the charges for which they were then being tried. The photographs in question, in the form in which the jury saw them, did not include the overt references to specific prisons and dates of incarceration which were apparent in the ‘mug shots’ whose introduction was held error in United States v. Har-man, 349 F.2d 316 (4th Cir. 1965). Nor were they introduced to buttress testimony naming the persons pictured as the perpetrators of the crimes for which they were then being tried, as was held to be the case in Barnes v. United States, 124 U.S. App.D.C. 318, 365 F.2d 509 (1966).”

We have given careful consideration to the other points raised by the appellants and find them to be without merit. Accordingly, the convictions are affirmed.

.Affirmed.

      . The record discloses that Stewart’s handbag was opened by the officer at 12:30 p. m., just three and one-half hours after the robbery of the bank in Greenville.

      . See United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

      . Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627 (1967).

      . “No other federal appellate court, with the single exception of one, has imposed the reasonable doubt standard in this context. All others have either avoided the problem entirely, or established some qualitative standard consistent with sound judicial experience and far less stringent than what we now adopt.
      “The use of our supervisory powers to impose this unique and unwarranted burden of proof is a misconception of the purposes of our supervisory powers.”

        Id., n. 2, 397 F.2d at 639 (Burger, Cir. J., dissenting).

      . Lego v. Twomey, 404 U.S. at 479, 92 S.Ct. at 621.

      . Id., 404 U.S. at 488, 92 S.Ct. at 626.

      . See United States v. Watson, 469 F.2d 362, 365 (5 Cir. 1962).

      . See United States v. Sherman, 421 F.2d 198 (4 Cir. 1970); Dirring v. United States, 328 F.2d 512 (1 Cir. 1964).


author: ROSS, Circuit Judge.

text:
    Sheldon J. WATTS, Appellant-Plaintiff, v. The BOARD OF CURATORS, UNIVERSITY OF MISSOURI, et al., Appellees-Defendants.
    No. 73-1824.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1974.
    Decided April 9, 1974.

      William H. Pickett, Kansas City, Mo., for appellant-plaintiff.
    Jackson A. Wright, Columbia, Mo., for appellees-defendants.
    Before VAN OOSTERHOUT, Senior Circuit Judge, LAY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

Sheldon J. Watts, a former nontenured assistant professor of the University of Missouri at Kansas City (U.M.K. C.), brought this action under 42 U.S.C. § 1983 alleging a deprivation of his constitutional rights in the nonrenewal of his employment contract. The case was submitted to the district court without a jury and upon stipulated facts and depositions. The district court found that Watts’ constitutional rights of procedural due process were not violated and that the nonrenewal of the employment contract' was not based on impermissible reasons under the constitution. Watts v. Board of Curators, University of Missouri, 863 F.Supp. 883 (W.D.Mo.1973); Watts appeals from that decision on the sole ground that the court erred in finding that he was not denied reemployment because of the exercise of a protected constitutional right. We affirm the decision of the district court.

Watts was initially employed as a probationary assistant professor for the academic year 1966-67 and was reemployed under separate one-year contracts thereafter until the last year of his employment during which he was employed pursuant to a terminal contract for the term September 1, 1970, through August 31, 1971. This type of employment at the University of Missouri is called a term appointment. Under the Academic Tenure Eegulations, established by the Board of Curators of the University of Missouri, “[h]olders of academic staff positions under term appointments have no rights of permanent or continuous tenure.” Those regulations provide for the creation of a University Faculty Committee on Tenure. They also charge the Dean with the duty to recommend each year of an assistant professor’s term either that he (1) be reappointed for a term; (2) be reappointed on a continuous appointment; (3) be promoted to an associate professor on a continuous appointment; (4) be reappointed as an assistant professor for a terminal one-year term; or (5) not be reappointed.

Pursuant to the recommendation of the Committee on Tenure and Promotion and in concurrence with the recommendation of the Dean of the College of Arts and Sciences and the Chancellor, Watts was reappointed in 1969 as an assistant professor for a terminal one-year term for 1970-71. Accordingly, on October 13, 1969, Watts was informed by the Dean that his appointment for the academic year 1970-71 would be a terminal one in the following correspondence:

I am further obliged to inform you that the Committee have concluded, after serious deliberation and consideration, that your appointment for the academic year 1970-71 should be a terminal appointment. This decision reflects the fact that although your research project has been supported for a considerable length of time, nothing has yet been presented to your peers in the nature of an article or paper. If your manuscript were accepted for publication before January 1971 the committee would reconsider your position in light of your publication record and other matters affecting tenure. I am confident that this decision was not one lightly or frivolously taken and rests upon consideration [sic] which the Committee believe are important to the future growth and development of the Department.

This notification by the Dean did not proffer a constitutionally impermissible basis for the nonreappointment. However, the only correspondence from the Committee on Tenure to the Dean prior to the notification of Watts, that is in the record, contained the following paragraph :

This decision is based on several factors. 1) His.research has not resulted in any publication or even reviews by a press even though it has been supported for three years by grants. 2) He has taken no interest in his profession at the state level. He has neither presented a paper at the Missouri Conference nor has he discussed his work with local English scholars. His attitude is that only English historians in England are worthy of consulting perplexed the committee. 3) He objects strongly to teaching world history, even on a once every two or three year basis. In fact, he tried to obtain a “united front” of instructors requested to think about this to refuse as a group. 4) He has displayed disloyalty to his colleagues by distributing a critical review to selected members of the department. 5) He has taken the position that in confrontation with students that they are always right and on one occasion suggested that the University “might need burning down.” (This might have been in jest, but no one there thought so.) All of these factors lead the committee to conclude that he should not be offered tenure. If the book is published during 1970-71 and he seems drastically changed after his leave, the committee might reconsider. However, to protect the department and university the leave with a terminal contract seems the best approach.

Watts argues that there is nothing to suggest that the officials of the University and the Board of Curators do anything other than rubber stamp the recommendation of the Committee and that, since some of the above factors in the Committee’s nonreappointment recommendations are protected by the first amendment, his nonrenewal was constitutionally impermissible.

After the receipt of this memorandum from the Committee, Watts was notified by the Dean of his terminal appointment as hereinbefore set forth. Watts accepted this decision as “fair” and went to England under a partial grant from the University to finish his manuscript. On December 9, 1970, Watts wrote a letter to the Chairman of the Tenure Committee and attached thereto a copy of a contract with Coronado Press as proof that he was then in compliance with the condition set forth in the Dean’s letter to Watts of October 13, 1969. However, on December 9, 1970, Watts had actually .completed only three of nine chapters of the book.

After a conference between Watts and the Dean concerning the unfinished manuscript, the Dean wrote to the Chairman of the Tenure Committee on March 24, 1971, indicating that on the basis of the Dean’s reading of the completed portion of the. manuscript and an article which had been published, “it will be impossible to fault him with respect to his scholarship.” The letter contained a statement by the Dean that “there is not sufficient objective evidence to justify the termination of Professor Watts and I believe that your committee’s recommendation to advise it in the light of recent evidence would not be in the best interests of the Department.”

Thereafter the Committee met again and unanimously voted not to modify its recommendation. Another written report was sent by the Chairman of the Committee to the Dean on March 29, 1971, reaffirming the Committee’s recommendation not to offer Watts a new contract. It specified as the reasons for its recommendation that Watts had failed to finish his manuscript by the appointed time; that he had failed to participate in conferences relating to his specialized academic interest, including the annual state meeting in Columbia, Missouri; that he was absent at the time of registration in January 1971; and that he rebelled against extra teaching assignments made by the head of the department. The fourth and fifth items set forth in the Committee’s earlier report were not even mentioned in this later letter to the Dean. The statements in this report are corroborated by the deposition testimony of several of the defendants. The Dean concurred in this decision of the Committee. Watts was then given the opportunity to meet with the Committee and discuss the reasons for the decision, but he failed to attend the meeting which had been set for May 11, 1971. On May 10, 1971, Watts wrote to the Dean as follows:

If you find you are able to give me reasons for your decision in writing, I would appreciate it. I refuse to have any more to do with this business. I forgive you.

A full written report was made by the Dean to the Chancellor on May 13, 1971. This report stated that “good teaching is not an issue in this case; neither the department’s committee nor the administration question the fact that these gentlemen are adequate teachers. The decision was based on the failure of these gentlemen to fulfill certain contractual agreements within the time initially stipulated.”

The Chancellor reviewed the case and concurred in the recommendation.

Judge Williams found that “[t]he primary and basic reason for the recommendation of the Committee on Tenure and Promotion for the University to issue a terminal contract to Plaintiff was the fact that though Plaintiff had received support from the University to enable him to complete and publish a book, he had not met his commitment to do so.” He cited as an additional reason Watts’ “attitude of unwillingness to teach world history.” He referred to the other factors mentioned in the memo of October 7, 1969, and determined that they were “minor and alone would not have been considered by Committee members as sufficient to warrant a recommendation of a terminal contract.”

After a careful examination of the record, including the exhibits and the depositions which were taken, we must conclude that these findings were not clearly erroneous. Indeed they seem to be the only logical findings that could be made as to the initial determination of the defendants to award Watts only a terminal contract in October of 1969.

However, our view of the record is that this determination was only a necessary prelude to the actual decision in March of 1971 to permit the terminal contract to expire without offering Watts another contract.

In a letter to Watts dated July 23, 1970, the Dean confirmed the statement made in his letter of October 13, 1969, supra, as follows:

You will also recall that the Committee signified its willingness to reconsider its recommendation if your progress relative to your present research program and other considerations affecting the criteria for tenure and promotions seemed to warrant it. This willingness still exists and is confirmed by this memorandum.

In December of 1970, Watts asked the Committee to reconsider his appointment on the basis of a publishing agreement for his book which he submitted, and on the basis of the forthcoming publication of an article in an academic journal. The Dean had an interview with Watts and thereafter asked the Committee to reconsider its decision. The Committee did reconsider its earlier recommendation and made its final decision as evidenced by the letter from the Chairman of the Committee to the Dean on March 29, 1971, and as shown by the depositions of the defendants.

The Dean concurred in the recommendation and submitted his report to the Chancellor who then failed to take any additional steps to give Watts a new contract.

The important factor here is that the final decision not to give Watts a new contract was made in the spring of 1971 after a thorough reconsideration of the matter by the Committee and after the Committee had decided, for constitutionally permissible reasons, to recommend that no new contract be tendered. The memo of October 7, 1969, which Watts claims cites two constitutionally impermissible reasons for the decision to offer him a terminal contract, is not conclusive for two reasons. First, the alleged constitutionally impermissible reasons were not the primary reasons for the determination and were only incidental to the principal reason. Secondly, the decision was a tentative one subject to later review if Watts’ manuscript was accepted for publication before January 1971. He did not finish his manuscript and publish his book within the prescribed time, and after a full reconsideration, the Chancellor, upon the written recommendations of the Committee and the Dean, did not recommend that the Board of Curators offer Watts a new contract.

It is now almost axiomatic that teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Accordingly, a state may not deny a valuable governmental benefit “to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). Yet, a state has a legitimate interest in the fitness and competence of its teachers. Shelton v. Tucker, 364 U.S. 479, 485, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). There is no requirement in the constitution that a teacher’s classroom conduct be the sole basis for determining his fitness. Fitness for teaching depends on a broad range of factors. Beilan v. Board of Education, 357 U.S. 399, 406, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958). A college has a right to expect a teacher to follow instructions and to work cooperatively and harmoniously with the administration. It is the burden of the teacher to show that the decision not to renew a contract was in fact a pretext, and that the decision was actually based on the Board’s disapproval of the exercise of a constitutionally protected right by the teacher. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

In this case, Watts has failed to demonstrate that the actual nonrenewal decision, made by those charged with the authority to render such binding determinations, was based upon anything other than the permissible reasons that he had failed in his professional and employment commitment to publish a book after having been afforded time and monetary support by the U.M.K.C. for that purpose and his reluctance to teach world history as directed. The result we reach in this case accords with previous decisions of the Supreme Court and this circuit. In Pickering ,v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Supreme Court recognized that in evaluating the • conflicting claims of first amendment protection and the need for orderly school administration:

The problem . . . is to arrive at a balance between the interests of the teacher . . . and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Id. at 568, 88 S.Ct. at 1735.

Likewise this result is consistent with our decision in Gieringer v. Center School District No. 58, 477 F.2d 1164 (8th Cir. 1973). There we considered a teacher discharge which the School Board arued rested upon an entire history of the teacher’s inability to get along with his superiors rather than upon a report that the teacher had made to the Teachers’ Association. We held that the record did not support that argument and that it was clear from the record that the report served as the catalyst without which no discharge would have occurred. Id. at 1166. However, in a footnote we noted that:

Even assuming Gieringer’s report may have been only partially a factor in his dismissal, if that report was protected activity, then the dismissal was still constitutionally impermissible.

Id. at 1166, n.2. We do not reach that question here since we have determined that the final decision not to renew Watts’ contract was not shown to have been based upon an impermissible reason at all.

For the reasons hereinbefore expressed, the judgment of the district court is affirmed.

      . This letter is not included in the appendix or attached as an exhibit to the pretrial order and stipulation. It is attached as an exhibit to the deposition of Lawrence Larsen. However, Paragraph V of that pretrial order and stipulation provides as follows :
      The parties do hereby stipulate, agree and do hereby submit this case on its merits to the Oourt for a legal determination on the merits of legal liability, if any, based upon evidentiary facts and exhibits contained in this pre-trial order No. 2 and eviden-tiary facts contained in the records of the court including the depositions of the parties hereto and the parties do stipulate to a continuance of the matter for a hearing on the issue of damages if the court should determine legal liability, if any. (Emphasis supplied.)
      We conclude that the exhibit, used by counsel for Watts in his examination of Larsen, is properly before the Court.


author: AINSWORTH, Circuit Judge:

text:
    Dr. Harry W. THERIAULT, Bishop, Church of the New Song of Universal Life, etc., et al., Plaintiffs-Appellees-Cross Appellants. v. Norman A. CARLSON, Director, Bureau of Prisons, etc., et al., Defendants-Appellants-Cross Appellees (two cases). Dr. Harry W. THERIAULT, Plaintiff-Appellant, v. Frederick SILBER, Director, U. S. Chaplain Service, et al., Defendants-Appellees.
    Nos. 72-2592, 73-1182, 73-2183
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 10, 1974.
    Rehearing and Rehearing En Banc Denied Aug. 13, 1974.

      John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., Alan S. Rosenthal, William D. Ap-pier, Dept, of Justice, Joseph S. Davies, Jr., App. Section, Crim.Div., Dept, of Justice, Washington, D. C., for Norman A. Carlson and others.
    Professor Phillip J. Mause, Iowa City, Iowa, for Dr. Harry W. Theriault and others; Dr. Harry W. Theriault, pro se.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Ralph E. Harris, Asst. U. S. Attys., El Paso, Tex., Joseph S. Davies, Jr., App. Section, Crim.Div., Dept, of Justice, Washington, D. C., for Frederick Silber and others.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   AINSWORTH, Circuit Judge:

These three cases, consolidated for appeal, have as their central theme the alleged deprivation by certain federal prison authorities of the constitutional rights of prison inmates to practice their religious faith, known as the “Church of the New Song” or the “Eela-tarian” faith. Harry W. Theriault, a federal prison inmate now serving sentences at LaTuna, Texas for various convictions, is the self-proclaimed founder, organizer, bishop, prophet and spiritual leader of the Eclatarians, a group of prison inmates which progressively continues to increase in size as Ther-iault’s various incarcerations increase geographically. His prison sojourns at the federal penitentiaries at Atlanta, Georgia and LaTuna, Texas generated incidents which form the basis of these three appeals which will be referred to herein as Theriault I, Theriault II and Theriault III.

THERIAULT — No. 72-2592

On June 18, 1970, “Dr. Harry W. Theriault” and a fellow inmate, “Reverend Jerry M. Dorrough,” while incarcerated at the Atlanta, Georgia penitentiary, filed this “First Amendment Action” against the Catholic and Protestant chaplains at Atlanta, alleging various deprivations of their constitutional rights freely to practice their religion, seeking injunctive and other relief. The complainants alleged that the Federal Government’s use of taxpayers’ money to compensate the chaplains for their services was violative of the Establishment Clause of the Constitution. They further alleged that members of their faith were being unconstitutionally denied the right freely to exercise their religion and that the actions of the chaplains in filing reports with the Parole Board relative to prisoners’ participation or lack of participation in religious activities were violative of their First Amendment rights. Their complaint requested generally a recognition of their religion and the granting to them of the same prison religious privileges as those enjoyed by the Catholic and Protestant inmates.

Subsequent to the filing of this petition, Theriault was transferred to the federal penitentiary at Marion, Illinois, where because of his alleged threats to a correctional supervisor of violence upon being denied a place to hold religious services, he was placed in solitary confinement until he was returned to Atlanta in August 1971 for hearings on his June 18, 1970 petition. Extensive hearings were conducted in Atlanta in district court on three separate days during the latter part of 1971 and the early part of 1972 at which Theriault was both lead counsel and principal witness. “Bishop” Theriault and “Pope” Dorrough testified at length in regard to the source, history and tenets of the Eclatarian faith, acknowledging that Theriault had started it off as a game.2 Nevertheless, the district judge refused to allow the Government to present expert testimony relative to the validity of the Eclatarian faith as a religion. At the trial much of the testimony pertained to attempts by Theriault and his fellow inmates to hold secret religious services. There was likewise testimony of violence and threats of violence by Theriault which allegedly caused prison officials to refuse him access to assembly rooms. At the conclusion of these hearings the district judge scheduled another hearing for additional testimony concerning the Government’s representations- of Theriault’s tendency to violence, announcing, however, the court’s intention to give Theriault a “trial run” on holding his religious services. At the final hearing at Atlanta, held in January 1972, several correctional officers and other prison officials from the Marion, Illinois penitentiary testified about various threats by Theriault of mass violence, veiled threats of murder, actual physical assault and battery of prison officials, and destruction by Theriault of prison property. One such incident occurred on April 1, 1971, following a request by Theriault to use the chapel or auditorium for the purpose of honoring the birthday of St. Blanche, an Eclatarian saint. Theriault, an escape artist by his own admission, having several times broken away from federal custody, was considered by prison officials to be a high escape risk. Moreover, he and his followers were known troublemakers. Theriault was told of the prison policy requiring permission from the chaplain to secure a meeting place, as it was the chaplain’s duty to coordinate religious activities. Theriault declined to follow instructions and announced his intention to hold the meeting, warning the prison authorities that if they used violence to break it up there would be bloodshed. Because of his threats, Theriault was placed in solitary confinement, to which he reacted by kicking the correctional supervisor. He later broke the bed from the cell wall, destroyed the toilet with a piece of angle iron, shoved the bed against the cell door and warned that he would kill anyone who attempted to enter.

The district court (Judge Edenfield) granted in part the relief requested by Theriault and issued the following order directed to respondents Hanberry and Beane, Protestant and Catholic chaplains, respectively; Carlson, Director, Bureau of Prisons; Silber, Director of Chaplaincy Services, Bureau of Prisons; and Henderson, Warden, Atlanta Penitentiary.

“(1) Respondents Hanberry and Beane are enjoined from preparing or submitting oral or written reports to other staff members of the Atlanta federal penitentiary concerning the religious activities of individual inmates at that penitentiary;
“(2) Respondent Carlson and respondent Silber are ordered to direct prison authorities under their jurisdiction to grant petitioners the right to freely exercise their religion, including the right to correspond with petitioner Theriault for the purpose of seeking spiritual guidance ....
“(3) Respondent Henderson is hereby ordered to immediately release petitioner Theriault from confinement in punitive segregation and restore him to the general prison population; and
“(4) Respondent Carlson is hereby'ordered to instruct prison authorities under his jurisdiction that they may not re-impose confinement in punitive segregation upon petitioner Theriault unless Theriault violates an institutional rule or regulation requiring such confinement subsequent to the date of this opinion and order or incites riot or insurrection during the conduct of his religious activities subsequent to the date of this opinion and order.”

Both the Government and Theriault appealed.

THERIAULT II — No. 73-1182

Subsequent to the Atlanta hearings Theriault was transferred to the federal penitentiary at LaTuha, Texas, on March 3, 1972, where he was again subjected to intermittent segregated confinement allegedly because of his disregard for prison security regulations and his renewed insistence, accompanied by physical violence, that he be allowed use of the prison chapel for religious services without prior approval of the prison chaplain. From LaTuna Theriault filed a petition in the United States District Court for the Western District of Texas seeking an evidentiary hearing in connection with allegations that his segregated confinement was punitive in nature, violative of Judge Edenfield’s order (see Theriault I), that the prison chaplains at LaTuna were illegally reporting on his religious activities, and that the authorities at LaTuna were generally denying him religious privileges such as the rights to correspond with fellow members of the Eclatarian faith, to circulate among the prisoners, to obtain bibles peculiar to his sect, and to use the prison chapel. Theriault’s petition was dismissed forthwith by the district court (Judge Guinn) on the day it was filed. Theriault appealed.

THERIAULT III — No. 73-2183

Shortly after the filing of the petition with the Western District of Texas, Theriault, while still incarcerated at LaTuna, filed a motion with the district court at Atlanta alleging failure of respondents to comply with Judge E den-field’s previous order. A four-day evi-dentiary hearing was held resulting in a finding by the district judge that Directors Carlson and Silber were in contempt of his order in Theriault I.

The basis of the motion purportedly grew out of the failure of a prisoner incarcerated at Eglin, Florida, to receive a letter sent by Theriault in response to an inquiry about the Eclatarian faith. A four-day hearing was held. The Government admitted that Theriault’s letter had not been delivered inasmuch as Eglin prison officials had not been informed of the court’s order. The failure to so inform Eglin was based on the Government’s belief that the court order applied only to the 166 petitioners to the original action, which petitioners were incarcerated at either LaTuna or Atlanta. A four-day hearing was held at Atlanta resulting in a finding of contempt against Directors Carlson and Silber. See Theriault v. Carlson, N.D.Ga., 1973, 353 F.Supp. 1061. The Government appealed.

Disposition of THERIAULT I

The Government contends that Theriault I should be remanded in order that it may present evidence that the Eclatarian faith is nothing more than a disruptive, anti-authoritarian political movement and therefore not a bona fide religion entitled to the protection of the Constitution. The Government’s attempt to present this proof through expert witnesses was rejected by the district court in both Theriault I and Ther-iault III. We find the unwillingness of the district court to hear evidence in this regard inexplicable considering the doubt entertained by it that the religion was nothing more than a game and since the proof adduced strongly suggests that petitioners are indeed so engaged. The testimony of Dorrough, co-founder of the faith, may explain why some of the original followers, all incarcerated convicts, find the freedom-seeking séct attractive. He explained on direct examination :

“In our Free Exercise Seminars, our revelation ministry is basically to destroy the Nicolaitans which we believe are the repressive rulers and the pow-ercrats of the system. That means— meaning the prison system, the people in the prison system, the people in the parole system, the people in government in general, the judiciary, et cet-era. And we believe in destroying them or changing their minds with the power of our mouth.”

First Amendment freedoms are not absolute. They are properly restricted when a sufficiently important governmental interest appears. United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). The long list of court actions to which Ther-iault is a party, some of which are still pending, as well as the lengthy prison record which he has established over the years, is strongly suggestive of the necessity of employing sharp and careful scrutiny of his activities, including his claim of religious sincerity. One of the tasks of the court “is to decide whether the beliefs professed by [petitioners] . are sincerely held and whether they are, in [their] own scheme of things, religious.” See United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed. 2d 733 (1965). While it is difficult for the courts to establish precise standards by which the bona fides of a religion may be judged, such difficulties have proved to be no hindrance to denials of First Amendment protection to so-called religions which tend to mock established institutions and are obviously shams and absurdities and whose members are patently devoid of religious sincerity. See, e. g., United States v. Kuch, D.C., D.C., 1968, 288 F. Supp. 439.

This matter is therefore remanded and the district court is directed to reopen these proceedings and permit the Government to present additional evidence in the fullest possible manner. On remand the court should allow the greatest liberality of proof and examine every aspect of the case. The court must also determine if this is in truth and in fact a class action in accordance with the rules pertaining thereto.

Disposition of THERIAULT II

The Government concedes in its brief, at page 14, “that the decision of the United States District Court for the Western District of Texas (Theriault II) requires remand in order for that court to enter a full factual explanation of its rejection of Theriault’s contentions.” We agree that remand is proper under the circumstances and therefore vacate the order of dismissal entered by the district court and remand for a full evidentiary hearing.

Disposition of THERIAULT III

The district court’s holding that respondents Carlson and Silber are guilty of a civil contempt is clearly erroneous and unsupported by the evidence. The record shows that Carlson and Silber attempted to comply with an order that was susceptible of misinterpretation. Upon determining what was intended by the order they complied forthwith. We are convinced of their complete sincerity and good faith. The contempt finding by the district court was an abuse of discretion and must be reversed, annulled and set aside.

The district court’s decision in Ther-iault I, No. 72-2592, is vacated and the cause is remanded for a full evidentiary hearing. In Theriault II, No. 73-1182, the district court’s order is vacated and the cause is remanded for a full eviden-tiary hearing. In Theriault III, No. 73-2183, the district court’s order is reversed, annulled and set aside.

      . We find it unnecessary for purposes of this appeal to give a detailed account «of the origin and tenets of Theriault’s newly created religion. The Eelatarian faith, or Church of the New Song, was originally founded by Theriault and Jerry M. Dorrough at the federal penitentiary at Atlanta, Georgia, allegedly as the result of visions experienced by Theriault at the Marion, Illinois federal penitentiary in which he received prophetic messages from “Eclat” informing him that he was the “Eelatarian Nazarlte” and directing him to establish the Church of the New Song.

      . Theriault acquired his Doctor of Divinity certificate through a mail order application. Theriault then, as self-appointed “Bishop of Tellus” ordained Dorrough First Revelation Minister of the Church of the New Song, conferring upon him on the day of the trial , at the courtroom the degrees of Doctor of Divinity, Doctor of Philosophy and Bachelor of Philosophy.
      The complaint as amended includes 164 additional fellow inmates as plaintiffs and was treated by the district judge as a class action.

      . Later, according to Theriault, when he realized he was affecting other people’s feelings he started to get more sincere. When he and Dorrough decided to file this complaint they needed the proper caption. Dor-rough came forward with this suggestion which they adopted: “You put yourself down, you be the head of the church, that’s the Bishop, you put yours, and put me down as the First Minister.”

      . See Theriault v. Carlson, N.D.Ga., 1972, 339 F.Supp. 375.

      . See Theriault v. United States, 8 Cir., 1968, 401 F.2d 79; Theriault v. United States, 5 Cir., 1968, 402 F.2d 792; Theriault v. United States, 5 Cir., 1969, 409 F.2d 1313; Theriault v. United States, 5 Cir., 1970, 434 F.2d 212; United States v. Ther-iault, 5 Cir., 1971, 440 F.2d 713; United States v. Theriault, 5 Cir., 1972, 467 F.2d 486; United States v. Theriault, 5 Cir., 1973, 474 F.2d 359; Theriault v. United States, 5 Cir., 1973, 481 F.2d 1193; United States v. Theriault, No. EP73-173 (W.D., Texas).

      . The suggestion that we attempt now to establish precise standards is neither feasible nor practical.

      . In Wisconsin v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972), in determining that the claims of the Old Order Amish religion for refusing to send their children to school after eighth grade rested on a religious basis, had this to say:
      “Although a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”

      . Although the district court directed Carlson and Silber to order prison authorities under their jurisdiction to grant petitioners the right to correspond with petitioner Ther-iault, the opinion also shows that the “Ecla-tarian faithful, aside from one secretary, are to be found only in the federal penitentiaries of Atlanta and Marion.” See Theriault v. Carlson, N.D.Ga., 1972, 339 F.Supp. 375, 377 n. 3. Under these circumstances the failure of respondents to inform prison authorities other than those at Atlanta and Marion was clearly an honest mistake. Apparently Judge Edenfield himself found his order wanting in clarity when in Theriault III, in rewriting parts of his order, he found it necessary to insert the word “all” before the term “prison authorities.” See Theriault v. Carlson, N.D.Ga., 1973, 353 F.Supp. 1061, 1068.


author: WIDENER, Circuit Judge:

text:
    Rena Sklar OPPENHEIM, Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare (now Caspar Weinberger,) Appellee.
    No. 73-1335.
    United States Court of Appeals, Fourth Circuit.
    Submitted May 18, 1973.
    Decided April 19, 1974.
    Rena Sklar Oppenheim, pro se.
    George Beall, U. S. Atty. for appellee.
    Before HAYNSWORTH, Chief Judge, and FIELD and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This action was brought by the claimant, Rena Sklar Oppenheim, against the Secretary of Health, Education and Wei-fare, pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Secretary denying her application for disability insurance benefits under §§ 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i) and 423. On January 15, 1973, the district court entered an order affirming the Secretary’s position, and this appeal followed. We vacate and remand for further inquiry.

The standard of review in cases of this nature is prescribed in § 205(g) of the Act, 42 U.S.C. § 405(g), as follows: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Under the law, the Secretary, not the courts, is charged with reconciling inconsistencies in the evidence. Thus, if his findings are supported by substantial evidence, his decision must be upheld. E. g., Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962). The courts are not to try the case de novo. At the same time, they must not abdicate their traditional functions; they cannot escape their duty to scrutinize the record as a whole to determine whether the conclusions reached are 'rational. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964).

The'claimant filed an application for a period of disability and disability insurance benefits on July 25, 1967. Her primary complaints concern pain and stiffness of the right arm, which began in January, 1967, and bad vision; additional complaints include recurrent neck pain, toxemia, and uncontrollable bowel movements. She has also complained of headaches, confusion and nervousness since about April, 1967.

The record contains the reports of nine physicians who have examined the claimant on various occasions. Each report contains a statement of the objective medical findings made by the examining physician. After considering the record, the Appeals Council, on June 16, 1970, made a number of specific findings. Among them was the statement that “the claimant’s impairments, individually and in combination, would not prevent her from performing light and sedentary work within the scope of her vocational training and experience.” We find this assertion difficult to reconcile with Dr. Blum’s conclusion that “any type of occupation might be quite difficult when it involves bookkeeping, and reading or clerical work of any sort.”

When Dr. Blum, an ophthalmologist, examined the claimant, he found her vision to be 20/200 in each eye without glasses and only 20/80 with glasses. He also found that she was unable to use her eyes together properly because of a large strabismus. These medical findings are neither disputed nor contradicted by other medical evidence. Indeed, Dr. Goldberg’s earlier examination tends to corroborate Dr. Blum’s evidence.

The Appeals Council discounted these medical findings with the observation that the claimant’s congenital visual impairment did not prevent her from doing clerical work or operating an automobile. This court, however, considers the decision of the Appeals Council to have been without foundation when it substituted its opinion for that of the ophthalmologists.

On remand, the Secretary should conduct further inquiry into Mrs. Oppen-heim’s eye condition with a view to determining her ability to perform sustained work of a clerical nature. Dr. Blum states such work would be “quite difficult.” Accordingly, the scope of the inquiry should at least be directed toward determining the meaning of Dr. Blum’s phrase, “quite difficult,” in this context.

At the same time, the Secretary should consider that the objective medical facts in this record indicate the existence of a debilitating elbow condition which surgery has failed to cure; visual difficulties such as nearsightedness, strabismus, and congenital nystagmus; a sometimes severe gastrointestinal problem with a possibly psychogenic background; and recurrent neck pain, stemming from a 1961 auto accident, which occasionally necessitates use of traction and a cervical collar. The issue before the Appeals Council is not only the existence of these problems, but also their degree of severity, and whether, together, they impaired the claimant’s “ability to engage in substantial gainful activity.”

Despite its assertion to the contrary, the report of the Appeals Council tends to fractionalize the several ailments and to treat each in isolation. On remand, we wish the Secretary to consider whether the combination of medical problems, both chronic and acute, impair the claimant’s “ability to engage in substantial gainful activity.”

Other than Dr. Blum’s statement, the only opinion evidence on this point is that of Dr. Lister who reported that he considered the claimant “to be totally disabled from any form of gainful employment.” This expert judgment is neither met nor contradicted by any other expert judgment. A physician’s statement, of course, is not conclusive of the ultimate fact in issue, Mrs. Oppenheim’s ability to engage in substantial gainful activity. It does, however, reflect Dr. Lister’s opinion of the severity of the claimant’s various impairments and her ability to adapt to them. Dr. Lister has treated Mrs. Oppenheim since 1956. As we noted in Vitek v. Finch, 438 F.2d 1157, 1160 (4th Cir. 1971), “[w]hile the Appeals Council is not bound by this assessment, this court has emphasized that the opinion of a claimant’s treating physician is entitled to great weight, for it reflects an expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.” Accord, Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962).

It is not sufficient for the Secretary to say, as here, that the claimant suffers several physical impairments yet can do “light and sedentary work within the scope of her vocational training and experience as an office manager, bookkeeper or office clerk.” It must be shown medically that she can perform the physical activities those jobs require without serious aggravation to present physical impairment or to general health.

Remanded.

      . A deviation of the eye that the patient cannot overcome in which the visual axes are not physiologically coordinated.

      . At tlie administrative hearing, this remand contemplates either side, of course, should be allowed to introduce all evidence touching the disability of the plaintiff.