text:
    UNITED STATES of America, Plaintiff-Appellee, v. William John NICKLES, Defendant-Appellant.
    No. 74-2739
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 14, 1975.
    Rehearing Denied April 11, 1975.
    Terry S. Freedman, Orlando, Fla. (Court appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Peter Dearing, Asst. U. S. Atty., Jacksonville, Fla., Harrison T. Slaughter, Jr., Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, 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.

   PER CURIAM:

Appellant William John Nickles was indicted for the possession and distribution of a controlled substance listed in Schedule III, 21 U.S.C. § 812, in violation of 21 U.S.C. § 841(a)(1). Convicted by a jury on both counts and sentenced, he brings this appeal.

The appeal presents a single issue. Nickles asserts that in order to establish that the substance in his possession, phencyclidine hydrochloride, was a controlled substance within Schedule III, the Government was obliged to prove at his trial that it had a depressant effect on the central nervous system. We disagree with Appellant, and- accordingly affirm the conviction.

Title 21 U.S.C. § 812, Schedule 111(b) includes in part:

Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system:
(7) Phencyclidine.

Under 21 U.S.C. § 811 the Attorney General is delegated authority to amend the enumeration of substances in Schedule 111(b), either by addition or deletion, where appropriate. Phencyclidine was originally listed in Schedule 111(b) by the Congress, however, and the Attorney General has made no relevant amendments. We think the phrasing of the statute clearly evinces a Congressional determination of the actual depressant effect of the specifically listed substances, including phencyclidine. This finding precludes any necessity for the Government’s demonstrating that depressant effect afresh in each trial under § 841(a)(1), and we do not read the statute to require such proof. Accord, United States v. Levin, 8 Cir. 1971, 443 F.2d 1101, 1106, cert. denied, 1971, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 260; cf. United States v. Spence, 5 Cir. 1970, 425 F.2d 1079.

Since that is the case, in order to prevail here Nickles must show that the statute treats “any material, compound, mixture, or preparation which contains any quantity of [the enumerated] substances,” such as phencyclidine hydrochloride, differently from the enumerated substances themselves, such as phencyclidine. While Congress might well have considered such a differentiation, between the listed substances and their alloys, the language of the statute seems clearly to show that Congress decided against it. Instead, Congress has provided that if amalgams should be developed that include enumerated Schedule 111(b) substances in some form which it is desirable to distribute freely, the way remains open through § 811(a) for an interested party to petition the Attorney General to initiate de-control proceedings. Until these procedures are successfully completed, such products remain within the scope of Schedule 111(b); and proof of their particular depressant effect is unnecessary in prosecutions under § 841(a)(1).

The judgment appealed from is affirmed.

      . Appellant suggests that such a reading renders the clause “having a depressant effect on the central nervous system” mere descriptive surplusage. But this argument overlooks the role of the quoted language in limiting the range of substances which the Attorney General may include within Schedule 111(b) by regulation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LESLIE METAL ARTS COMPANY, INC., Respondent.
    No. 74-1505.
    United States Court of Appeals, Sixth Circuit.
    Jan. 22, 1975.

      Elliot Moore, Deputy Associate Gen. Counsel, Peter Nash, John S. Irving, Jr., Patrick H. Hardin, Jay E. Shanklin, Morton Namrow, N.L.R.B., Washington, D. C., Bernard Gottfried, Director Region 7, N.L.R.B., Detroit, Mich., for petitioner.
    J. Michael Guenther, Miller, Johnson, Snell & Cumminskey, Charles C. Hawk, Grand Rapids, Mich., for respondent.
    Before EDWARDS and MILLER, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   PER CURIAM.

This is an application pursuant to Section 10(e) of the National Labor Relations Act as amended, 29 U.S.C. § 151 et seq., for enforcement of an order of the National Labor Relations Board requiring Leslie Métal Arts Company, Inc. to cease and desist from preventing employees from exercising their rights under Section 7 of the Act. The Board’s order also required back pay awards and reinstatement of certain employees who had been suspended or discharged as the result of a disputed labor incident. The order was based upon a finding that Leslie had violated Section 8(a)(1) of the Act by suspending employees Lenard, Knoll, and Wildfong, discriminating against Knoll when he became an unfair labor practice striker, and by threatening employees with disciplinary action when they engaged in a strike or walkout protected by the Act. The findings of fact made by the Administrative Law Judge and approved by the Board we find supported by substantial evidence. We incorporate them in the appendix hereto.

Upon these findings of fact, the Board concluded: (1) that McDonald, Lenard, Knoll, and Wildfong were engaged in activity protected by Section 7 of the Act when they walked out and that the following suspensions and discharges violated Section 8(a)(1) of the Act; (2) that, by refusing to return to work on March 13, Knoll became an unfair labor striker and that Brown’s statement to Knoll that he would be considered as having voluntarily quit if he did not return to work on Thursday was a threat to take disciplinary action if he did not refrain from this protected activity; and (3) that when Debski told McDonald that the employees who had walked out would have to return to work immediately or face strict disciplinary action on the following Monday, he committed an unfair labor practice.

The crucial question before us is whether the Board was correct in finding that the employees’ complaints concerning the company’s failure to correct the conditions resulting from Gallegos’ conduct, predominated over any personal complaint they had against Gallegos herself.

Section 7 of the Act grants employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” An employer commits an unfair labor practice under Section 8(a)(1) when it interferes with, restrains or coerces employees in the exercise of their Section 7 rights. However, all concerted activity is not protected under Section 7. Protected activity must in some fashion involve employees’ relations with their employer and thus constitute a manifestation of a “labor dispute.” Section 2(9) of the Act defines a “labor dispute” as “ . . . any controversy concerning terms, tenure, or conditions of employment . . . ” See e. g., N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).

When employee activity is directed at circumstances other than conditions of employment, it is outside the protection of Section 7. For example, in Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749 (4th Cir. 1949), it was held that the circulation of a petition by an employee for the removal of a foreman against whom the employee held a personal grudge was not protected activity. Similarly, in AHI Machine Tool and Die, Inc. v. N.L.R.B., 432 F.2d 190 (6th Cir. 1970), it was held that a walkout in protest of the discharge of a fellow employee who had “violently and unlawfully slugged a supervisor” was unprotected. Cleaver-Brooks Manufacturing Corp. v. N.L.R.B., 264 F.2d 637 (7th Cir.), cert. denied 361 U.S. 817, 80 S.Ct. 58, 4 L.Ed.2d 63 (1959), also found unprotected a strike protesting the replacement of a supervisor where the evidence showed the strike to be based on mere personal antipathy toward the new foreman.

On the other hand, not all complaints over the quality of supervison have been held to be unprotected. In N.L.R.B. v. Guernsey-Muskingum Electric Co-op., Inc., 285 F.2d 8 (6th Cir. 1960), it was recognized that protests over the incompetence of a foreman could be the prgper subject of protected concerted activity. In reaching this conclusion, the Sixth Circuit relied on the Seventh Circuit case of N.L.R.B. v. Phoenix Mutual Life Insurance Co., 167 F.2d 983 (7th Cir.), cert. denied 335 U.S. 845, 69 S.Ct. 68, 93 L.Ed. 395 (1948), in which it was held to be protected activity for employees to make known their views concerning the capability of a proposed new cashier.

In G & W Electric Specialty Co. v. N.L.R.B., 360 F.2d 873, 877 (7th Cir. 1966), the Seventh Circuit summarized the scope of Section 7 as follows:

The range of possible employee mutual interests apart from those which bear a reasonably significant impact upon working conditions or some material incident of the employment relationship is in our opinion a much broader field than Section 7 is designed to encompass.

The Ninth Circuit in Shelly & Anderson Furniture Co., Inc. v. N.L.R.B., 497 F.2d 1200 (9th Cir. 1974), recognized four essential elements of concerted activity protected under Section 7, citing 18B Business Organizations, Kheel, Labor Law § 10.02 [3], at 10-21 (1973):

(1) there must be a work-related complaint or grievance; (2) the concerted activity must further some group interest; (3) a specific remedy must be sought through such activity; and (4) the activity should not be unlawful or otherwise improper. Id. at 1202-1203.

Upon consideration of the history and terms of the statute as well as case authority on the subject, we conclude that the mere personal animosity found to exist between Gallegos and the other employees at Leslie prior to the March 9 chair-pulling incident would have been an insufficient basis for protected concerted employee activity. Yet the case law clearly supports the view that the personal safety of employees is a working condition that can be a valid basis of a labor dispute. The factual findings regarding the Gallegos chair-pulling inciden tclearly demonstrate the existence of physical and verbal threats to employee safety resulting from the company’s failure to maintain plant discipline, largely because of the conduct of a single employee. It is true that an atmosphere of personal animosity had developed between Gallegos and certain other employees. Nevertheless, employees were entitled to be protected against threats of physical violence and other acts of harassment of a fellow employee creating a difficult condition of employment. Under such circumstances they could legitimately protest by concerted activity the failure of the employer to take appropriate action to correct or alleviate the situation.

Our enforcement of the Board’s order on the facts of this case does not enlarge the scope of Section 7 protection by sanctioning walkouts arising from purely personal quarrels unrelated to labor disputes with an employer. Neither does our decision infer that employers should become involved in personal quarrels between employees. We hold only that when an employer’s failure to maintain discipline rises to the point of threatening employee safety, concerted activity by employees in protest against the employer’s failure is protected activity under the Act. An employer commits an unfair labor practice under Section 8(a)(1) when he interferes with employees’ exercise of such right.

The Board’s petition for enforcement of its order is hereby granted.

APPENDIX

1. Background and events before March 9

At the time of the events involved herein Betty McDonald, Alice Lenard, Kathy Gallegos and Jane Johnson all worked in the plating department in Respondent’s Grand Rapids plant No. 2 on the second shift under the supervision of Paul Vorrheis. [sic] McDonald had worked in that department as a chrome racker since 1966. From mid-September, 1972 until January 29, 1973, she was on sick leave. At the time she went on sick leave, none of the other three worked as chrome rackers.

During McDonald’s absence, Gallegos and Lenard both started to work as chrome rackers and were working in that capacity when. McDonald returned to work. In mid-February, Lenard transferred to another department. However, about 2 weeks later an opening was posted for a chrome racker, Lenard requested it, and on March 2 Lenard was transferred back to chrome racking. On Monday, March 5 Johnson also was transferred to chrome racking.

There is considerable evidence that relations between Gallegos and Johnson on the one hand and McDonald and Lenard on the other were strained and deteriorating before and after this date. Gallegos had dubbed Lenard “bitch,” and Gallegos made statements to Johnson and others, which came to McDonald’s attention, that she was going to call the wives of second shift platers Adrian Knoll and Mike Wildfong and tell them they were playing around with other women. Knoll was married to McDonald’s daughter, and Wildfong was married to McDonald’s niece.

A further conflict and complaint arose from the performance of the racking work. The rackers were paid on a piecework basis, but with a maximum on the amount they could earn on one shift. Some parts were considered more desirable to rack because of the prices they bore. McDonald and Lenard believed that Gallegos and Johnson had at times maneuvered to gain the more desirable parts for themselves to rack leaving the less desirable parts for them. There is evidence, less definite in nature, that complaints also had been made against McDonald by Gallegos and others.

On Tuesday, March 6, Voorheis asked. Lenard to work as an unracker, a different job in the same department. Lenard protested the assignment on the ground that she had been on the racking job longer than Johnson. Voorheis rejected her protest, but Lenard was not required to work as an unracker that night.

On Wednesday night, Lenard and McDonald separately spoke to plant superintendent Don Brown about Lenard’s transfer to unracking, contending that Johnson should be transferred because she had less seniority in the department. Brown, however, took the position that under Respondent’s seniority policy, Lenard was the appropriate person to be transferred as she had less seniority in the plant. Lenard told Brown that if she was required to unrack, she would go home. Later that night, when Voorheis instructed her to unrack, Lenard left the plant. The next night she returned to work and was disciplined. She was given a written warning with the explanation that because it was busy a one-day suspension provided under Respondent’s rules had been waived.

That night, Thursday, Lenard worked as an unracker, and the other three worked as rackers. During a break McDonald stopped work, but Johnson continued to work and finished a rack which McDonald had started. Johnson got credit for the performance of that work. Although McDonald was not thereby prevented from earning the maximum rate for the shift, she viewed Johnson’s action as an attempt to pick on her and complained to Voorheis. He agreed that Johnson should not have finished McDonald’s rack, but attributed Johnson’s conduct to aggressiveness and said that he wanted to see Johnson earn the maximum like anyone else. That night, McDonald also complained to Brown about the incident and her belief that Gallegos and Johnson were teaming up against her in order to pick the parts they wanted to rack and to leave the less desirable parts for her. In response to a question by Brown, McDonald said she thought she was being picked on. McDonald also mentioned Gallegos’ threats to call Knoll’s wife. Brown commented that the latter was a personal matter and said that he would talk to Voorheis about her other complaints.

2. The March 9 chair incident and walkout

On Friday, March 9, at the 6:30 p. m. break period, McDonald and Gallegos stopped racking while Johnson continued to work. McDonald and Gallegos sat in the only two chairs available near their work location. Lenard, who was working as an unracker that night, came by to talk with McDonald. While they were talking, Gallegos got out of her chair and went to talk with Johnson where she was working. Lenard sat in the chair that Gallegos had vacated. Gallegos immediately returned and told Lenard to get out of her chair. Lenard refused. Gallegos again told Lenard to get out of the chair. Lenard said that it wasn’t Gallegos’ chair and that she wasn’t moving. Gallegos then grabbed the chair and yanked it out from under Lenard. Lenard kept her balance and did not fall. Gallegos then said to Lenard, “For two cents, I’d knock you right on your ass.” Voorheis was present and observed the incident. After a pause, Voorheis said that they shouldn’t argue over a chair and asked why they didn’t go upstairs and get another chair. When no one else moved to get one, Voorheis went and got another chair.

At the end of the break period Knoll and Wildfong walked by. Lenard told them what had just happened, and McDonald told them what Gallegos had said about calling their wives. Knoll said he had heard something about those statements and that he was fed up with Gallegos. McDonald said that she had about had it and wasn’t going to take much more of it. However all four returned to work.

A few minutes later Voorheis walked by where McDonald was working. McDonald told him she thought it was pretty “chicken shit” of him to have failed to stop Gallegos or do anything when Gallegos threatened Lenard. Before Voorheis could answer, Gallegos called out, “You old hag. If you’ve got something to say, say it to me and not to Paul.” McDonald answered that she wasn’t talking to her. Voorheis said nothing and walked away.

McDonald then decided to leave, figuring that if she stayed it would end in a fight. McDonald got her coat, went toward the timeclock to leave and again encountered Voorheis. She told Voorheis that she was not going to work under “these conditions of .being called names and having these girls work against me all the time, and threatening other employees.” She told Voorheis she had talked previously to him and Brown about some of these problems and that nothing seemed to be done about it. She told Voorheis that she wasn’t going to stay there that night, and he told her that if she wanted leave she should go. McDonald then told Voorheis that she wouldn’t be going alone and that Lenard, Knoll, and Wildfong would also go because they had also had their fill of Gallegos and the working conditions there.

McDonald then went to the timeclock. She was joined by Knoll, Wildfong, Lenard, and another employee Rick Wilbert, as well as Voorheis. A loud discussion ensued. Voorheis asked them what they were trying to do and said they couldn’t walk off the job like that. Lenard said she was tired of what she had been taking from Gallegos. Knoll said that something had to be done about Gallegos’ conduct. McDonald, Lenard, Knoll, and Wildfong then left the plant.

3. The aftermath of the walkout

After McDonald reached her home, she telephoned Plant Manager Debski and told him that the four employees had walked out because of Gallegos’ behavior and the working conditions. Debski said they couldn’t leave their jobs like that. McDonald said that she had talked to management 2 days earlier but that nothing had changed. Debski told her that they had to return to work that night or strict disciplinary action would be taken on' the following Monday. McDonald said that under the circumstances they would not work any more that night.

Later that night Debski telephoned McDonald and asked her to come to the plant with Lenard on the next morning, Saturday, to talk the matter over with him and Brown.

At the meeting the next morning, Brown asked McDonald why the four employees had left their jobs. McDonald told Brown and Debski about the chair incident the night before, Gallegos’ threat to Lenard, Gallegos’ calling her names, and Gallegos’ threats to call the wives of Knoll and Wildfong. Brown then said that he knew conditions were not the best in the department and that there were hostile feelings. He asked McDonald if she had any suggestions as to what could be done to change the attitude of the girls in the department. McDonald made no suggestions. Brown made suggested [sic] one change in work procedure and asked her opinion of it. McDonald at first said She thought it might work, but then disagreed.

After talking to McDonald, Brown and Debski asked Lenard why she had walked off the job. Lenard gave essentially the same reasons as McDonald, mentioning also that Gallegos called her names while at work.

Brown and Debski said that it was ridiculous to have a walkout over these things and that they would have a departmental meeting to try to solve the problem. They told McDonald and Lenard that they were suspended pending further investigation and that they should call the plant on Monday for further information about their status.

On that day Brown and Debski met separately with Gallegos and Johnson, and Gallegos was given a 3-day suspension because of the chair incident.

On March 14 or 15 Brown told McDonald that she had been discharged for instigating a departmental walkout and leaving her job without permission.

On March 13, Brown informed Lenard that she was suspended for 3 days for her second offense in leaving the plant without permission. At the end of the 3-day period Lenard returned to work.

Wildfong and Knoll were each given one-day suspensions. Wildfong returned to work on Tuesday, March 13, but Knoll did not. Knoll talked to Brown and Debski that afternoon before the start of the second shift and learned of the discipline against him. He asked what was being done with respect to McDonald and Lenard, but Brown and Debski only told him that they were still under suspension. Knoll said that he did not want to return to work under those conditions and that he could not return to work and maintain a happily married life.

On Thursday, March 15, Brown called him, asked him if he would come back to work that night, and told him that if he didn’t return that night, he would be considered as having voluntarily quit because of unexcused absences. Knoll told Brown that he thought he would be there, but when he learned later that afternoon that McDonald had been discharged, he did not report for work.

The next day, Knoll went to the plant to pick up his check and spoke with Brown. Brown said that he was sorry to see Knoll go, and Knoll replied that he was sorry to go but that he could not return to work in view of McDonald’s termination because of his personal family life. Knoll told Brown that he had applied for a prospective job in tool and die work which looked promising. Brown offered to give him a good reference. Knoll thanked him and left.

      . Unless otherwise indicated, the findings which follow are based on a composite of the testimony of McDonald, Lenard, Adrian Knoll, and Don Brown. There is little conflict in their testimony as to the essential facts.

      . All dates which follow occurred in 1973 unless otherwise indicated.

      . McDonald so testified. According to Brown, he told her that he did not like the petty bickering in the department and that he was going to call a departmental meeting to resolve it. Although I believe Brown that he told McDonald that he did not like the petty bickering in the department, I credit McDonaid that Brown did not mentional [sic] calling a departmental meeting until 2 days later on Saturday. There is no evidence that such a meeting was otherwise mentioned by anyone until Saturday, or that any plans to hold such a meeting had been made.

      . Knoll testified that apart from the chair incident, he was dissatisfied because of Gallegos’ threats to call his wife and Wildfong’s, because it was too hot where he worked, and because the platers often worked shorthanded. However, he mentioned none of the other reasons to Voorheis at the time he left.

      . Although Wilbert initially indicated that he would also join them, he did not.

      . McDonald and Lenard so testified as to what they said were the reasons for the walkout. Brown testified that they only mentioned the chair incident as a reason, but that other problems in the department were also discussed in the meeting. I have credited McDonald and Lenard that they voiced all their complaints when asked why they walked out.

      . Brown’s testimony indicates that McDonald was disciplined more severely than the other employees because she was deemed the instigator of the walkout and because of her past record.

      . These findings are based on a composite of the testimony of Knoll and Brown.

      . These findings are based on a composite of the testimony of Knoll and Brown. Although Knoll testified that he could not recall whether he made reference to the feeling within his family, he did not deny the [sic] it was mentioned, and Brown so testified.


author: JOHN R. BROWN, Chief Judge.

text:
    Derek Jerome SINGLETON et al., Plaintiffs, v. JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT, Defendant-Appellee, v. Thomas Arny RHODEN and Honorable Robert A. Biggs, Jr., et al., Defendants-Appellants.
    No. 71-3520.
    United States Court of Appeals, Fifth Circuit.
    Feb. 26, 1975.
    Heber Ladner, Jr., Sp. Asst. Atty. Gen. of Miss., William A. Allain, Asst. Atty. Gen., A. F. Summer, Atty. Gen. of Miss., Jackson, Miss., for defendants-appellants.
    George P. Hewes, III, Richard W. Dortch, Jackson, Miss., for defendant-appellee.
    Before BROWN, Chief Judge, and MORGAN and GEE, Circuit Judges.
   JOHN R. BROWN, Chief Judge.

In this case, that has now become Singleton VII in a controversy spanning eleven and a half years, the litigation concerning the desegregation of the Jackson Municipal Separate School District has now hopefully approached an end.

The present appeal is brought by the state defendants from an order of the District Court of October 19, 1971 enjoining them as state officials from withholding state funds appropriated to the Jackson Municipal Separate School District.

The class plaintiffs, the court-appointed bi-racial committee, and the defendant school board agreed upon, and the District Court approved, a plan for desegregation — a portion of which necessitated some intra-city bussing. Because of this bussing requirement, an Executive Order of the Governor of Mississippi, September 11, 1971, was issued withholding appropriated funds from the school district.

After the Executive Order was issued withholding funds, the school board. moved — and the District Court granted the motion — that the state officials involved in the Executive Order be made party-defendants and that they be enjoined from carrying out the Executive Order, 332 F.Supp. at 985. The state officials, and not the school board, are the only appellants here. We find no merit in the state’s appeal and affirm the District Court’s order.

The statute on which the Governor’s Executive Order relied is § 6336-04 of the Mississippi Code of 1942, providing that pupils who live within the corporate limits of a municipality and who are assigned to a school in the municipality shall not be considered as eligible for school transportation. Concluding that the intra-city bussing portion of the integration plan was in direct conflict with § 6336-04, the Governor issued the Order to withhold state funds from the school district.

The District . Court, however, found it unnecessary to deal with the conflict between the state statute and the adopted integration plan since upon extensive factual hearings the Court determined that the school board had not spent and did not contemplate spending any funds derived from state sources on intra-city transportation. The District Judge was clearly right. The school district produced overwhelming evidence that the bussing was and will be provided for from accumulated reserves and a separate transportation account funded solely by local income. And the Court properly held that expenditure of funds derived from sources other than the minimum education (state funds) was committed to the discretion of the school board. See also § 6411-10.

Since the District Court found that state funds were not being used for intra-city bussing, the Court was not compelled to decide the constitutionality of the state statute. The District Court’s order, then, merely enjoined the state from interferring with the school board’s use of non-state derived funds to pay for intra-city bussing — a necessary part of the agreed District Court’s plan in fashioning a decree to desegregate the school system. Such a transportation scheme in the desegregation of schools has been approved by the Supreme Court when students are required to attend schools outside their neighborhoods. Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554.

The present agreed school plan as designed and promulgated by the school district bears the approval and endorsement of the District Court. Further, the record fully supports a conclusion that the transportation feature of the plan was arrived at through considerable discussion. Consequently, we reject the State’s subsidiary contention that the District Judge was in error in concluding that transportation was essential to achieving unitary status and its related alternative argument that the bussing should be less. We agree with the District Court’s assessment, 332 F.Supp. at 987, and find no merit in the argument. The District Judge had ample basis for his decision and we, therefore, affirm.

Affirmed.

      . The first Fifth Circuit decision in this case was rendered on February 14, 1964, Evers v. Jackson Municipal Separate School Dist., 328 F.2d 408, reinstating the cause and enjoining the school district from segregation of the races. The six decisions of the Fifth Circuit following this original decision all dealt with the approval or disapproval of proposed solutions to completely desegregate the Jackson Municipal Separate School District. Singleton v. Jackson Municipal Separate School District, 5 Cir., 1965, 348 F.2d 729 (Singleton I); 5 Cir., 1966, 355 F.2d 865 (Singleton II); 5 Cir., 1970, 419 F.2d 1211 (en banc) (Singleton III) ; 5 Cir., 1970, 426 F.2d 1364 (Singleton IV) ; 5 Cir., 1970, 430 F.2d 368 (Singleton V); and 5 Cir., 1970, 432 F.2d 926 (Singleton VI).
      A history of the Singletons and the importance of each decision is recorded in the District Court’s opinion from which this appeal is taken. Singleton v. Jackson Municipal Separate Dist., S.D.Miss., 1971, 332 F.Supp. 984, 985-86.

      . The state officials named as defendants and involved in withholding funds are Thomas Arny Roden, Chairman of the State Tax Commission; James Monroe Walker, Associate Commissioner of the State Tax Commission; Robert A. Biggs, Jr., Associate Commissioner of the State Tax Commission; L. G. Holyfield, Secretary of the State Tax Commission; W. Hampton King, State Auditor of Public Accounts and Chief Executive Officer of the State Department of Audit; and Hon. A. F. Summer, Attorney General.

      . The school board of the Jackson Municipal Separate School District has been a defendant in this suit from its inception.


author: WISDOM, Circuit Judge:

text:
    Walter LEONARD, Jr., et al., Plaintiffs-Appellees, v. MISSISSIPPI STATE PROBATION AND PAROLE BOARD et al., Defendants-Appellants.
    No. 74-2354.
    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.
    Rehearing and Rehearing En Banc Denied June 10, 1975.

      A. F. Summer, Atty. Gen., Edwin A. Snyder, Asst. Atty. Gen., Jackson, Miss., for defendants-appellants.
    David M. Lipman, Jackson, Miss., for plaintiffs-appellees.
    Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
   WISDOM, Circuit Judge:

In this § 1983 case, brought as a class action by Walter Leonard, Jr., an inmate of the Mississippi State Penitentiary, the district court enjoined the Mississippi State Probation and Parole Board, the Mississippi State Penitentiary Board, and the Superintendent of the Mississippi State Penitentiary from relying on prison disciplinary records that were the product of procedures held to be constitutionally infirm in Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291. The defendants had utilized these pre- Gates records for determining prisoner classifications, eligibility for work-release, vocational and educational programs, camp and work assignments, and parole consideration. On appeal, the defendant-appellants set out three grounds for reversal. First, they contend that a three-judge district court should have been convened to hear this case under 28 U.S.C. § 2281. Second, they say that this class action is not properly cognizable as a Section 1983 action because, under Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, “habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement.” Third, and decisively, they point out that this Court’s decision in Gates should not be applied retroactively to require expungement of records made before the adoption, on January 26, 1973, of disciplinary procedures that conform to constitutional requirements.

We find the appellants’ first two arguments without merit. We reverse the decision of the district court only because we hold that this Court’s decision in Gates must not be applied retroactively.

I

Under 28 U.S.C. § 2281, a three-judge district court must be convened whenever a plaintiff seeks a federal injunction to restrain the enforcement, operation or execution of a state statute “by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes”. In some circumstances, Section 2281 also requires that a three-judge court be convened when an injunction is sought to restrain a state administrative “practice”. Sands v. Wainwright, 5 Cir. 1973 (en banc), 491 F.2d 417. The cardinal rule of construction in Section 2281 cases, however, is that the three-judge court statute is a technical enactment in the strict sense and must be narrowly construed. See Phillips v. United States, 1941, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800, 805; Sands v. Wainwright, 5 Cir. 1973 (en banc), 491 F.2d 417. See also 1 W. Barron & A. Holtzoff, Federal Practice and Procedure § 52 (C. Wright ed. 1960); D. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1 (1964); 7 Moore’s Federal Practice H 65.16 (1974); C. Wright, Handbook of The Law of Federal Courts § 50, p. 188 (1970 ed.). As Justice Frankfurter said in Phillips, “To bring this procedural device into play— to dislocate the normal operations of the system of lower federal courts . requires a suit which seeks to interpose the Constitution against the enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an ‘administrative board or commission’. The crux of the business is procedural protection against an improvident statewide doom by a federal court of a state’s legislative policy.” Phillips v. United States, 1941, 312 U.S. 246, 251, 61 S.Ct. 480, 483 (emphasis supplied).

In this case, Leonard does not challenge any provision of the Mississippi Constitution. Nor does he attack the constitutionality of any statute, either on its face or as applied. Finally, he does not attack any formal order, rule, or regulation that has been promulgated by a state board or commission. The question, then, is whether the facts of this case fall within the area elucidated in Sands, so that a three-judge court must be convened to consider enjoining the continuation of a state administrative “practice”.

In Sands, the defendant Texas prison officials maintained that a three-judge court was not required because the plaintiffs were challenging only prison “practices” and not prison regulations. The Court said that a distinction between “practices” and “regulations” could not be sustained because “in this case, [Bands], it is a distinction without a difference”. 491 F.2d 417, 428 (emphasis added). Moreover, the Court held that:

“The ‘practices’ whose enforcement the inmates seek to enjoin are, in reality, the Rules and Regulations of the Texas Department of Corrections, as applied. Plaintiffs claim that no particular paragraph or section of those Rules and Regulations — either the 1953 version in effect at the time this litigation was initiated, or the July 9, 1973, version currently in effect — is constitutionally offensive, and that no injunction is sought against any such paragraph or section. The entire thrust of plaintiff’s argument, however, is that the Rules and Regulations, as a whole and as applied, are constitutionally deficient standing alone. More complete and more specific regulations must be mandated in order to assure that the present ‘practices’ will not be continued.”

491 F.2d 417, 428 (emphasis in original). Clearly, Sands does not require that a three-judge court be convened whenever a state administrative “practice” is challenged as unconstitutional. A three-judge court is not required when the constitutional attack is aimed at the mere results of “erroneous administrative action”. Ex Parte Bransford, 1940, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249. See also Clark v. Thompson, S.D. Miss.1962, 204 F.Supp. 30, 31. The mere fact that a prisoner is injured by the acts of a state official done “under color of state law” is sufficient to state a claim under Section 1983, but it is not sufficient to trigger application of Section 2281. In Sands, however, the administrative “practice” was, in effect, the application of administrative rules or regulations that the court found insufficiently specific; in short, the constitutional challenge ran to administrative rules “as applied”.

Here, no such nexus exists between any administrative rules and the administrative practice sought to be enjoined; the administrative practice is simply amorphous. Leonard challenges the continued use of pre- Gates disciplinary records by state officials. The record shows that the defendant officials have continued, in fact, to rely on these records. The record also shows that neither constitutional provision nor statute nor administrative rule requires them to do so. Moreover, no facts in the record demonstrate that the administrative practice challenged here is in fact an administrative rule “as applied” in the sense that term was used in Sands. We hold, therefore, that the administrative practice Leonard challenges is a mere practice and does not require the convening of a three-judge court.

II

The appellants’ second argument, based on Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, is that this class action should have been brought by application for a writ of habeas corpus rather than by an action based on Section 1983 because Leonard, the named plaintiff, was in fact challenging the fact or duration of his confinement. In Preiser, the court held that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate or speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Id., 1973, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439, 456. This distinction is important to the individual party or parties involved because of the different exhaustion principles applied in habeas corpus and Section 1983 cases. See 28 U.S.C. § 2254 and Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Damico v. California, 1967, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647. But see also Gibson v. Berryhill, 1973, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 and Comment, Exhaustion of State Administrative Remedies In Section 1983 Cases, 41 U.Chi.L.Rev. 537 (1974). In Preiser, the plaintiffs “sought injunctive relief to compel restoration of [good-time-conduct] credits, which in each ease would result in their immediate release from confinement in prison.” 411 U.S. at 476-477, 93 S.Ct. at 1829. The Court held, therefore, that the essence of this action fell within the “core” of habeas corpus.

The appellants contend that it has been apparent from the beginning of this litigation that Leonard in fact seeks an early release from custody and that he has disguised a true habeas corpus action as a Section 1983 action in order to circumvent the exhaustion requirement. This argument places substantial weight on Leonard’s statement, made at the evidentiary hearing, that he “wants out on parole”. We think that this view ignores the very theory and purpose of this class action.

As the named plaintiff in this action, Leonard brought suit on his own behalf and on behalf of a class of plaintiffs who have allegedly suffered harm from the continued use of pre-Gates records. The class seeks a declaratory judgment and an injunction to prevent the defendants’ use of pre-Gates records for any purpose against the interest of any class member. In Leonard’s own case, the effect of an injunction would be to prevent the defendant officials from considering Leonard’s pre-Gates disciplinary offenses in determining parole eligibility. In other .cases, the injunction’s effect would be to prevent the defendant officials from considering other prisoners’ pre-Gates records in determining prisoner classifications and eligibility for parole consideration, work-release, and educational programs. Of course, the specific and concrete effect of such an injunction on the status of each prisoner is highly speculative.

The Supreme Court, in Preiser, stated that the plaintiffs would have had to bring a habeas corpus action “even if restoration of [their] good-time credits had merely shortened the length of their confinement, rather than required immediate discharge”. 411 U.S. 475, 487, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439, 449. Arguably, the principle stated in Preiser may affect the relief to which Leonard would, individually, be entitled in this case. Because of our disposition on the merits, however, we need not reach that-point.

The only class relief sought is a determination that the continued use of .pre-Gates records is unconstitutional and an injunction to prevent their use and require their expungement. At least insofar as Leonard brings this action on behalf of the class, we hold that it is properly brought as a Section 1983 action.

III

Finally, we must determine whether this Court’s decision in Gates should be applied retroactively so as to require ex-pungement of pre-Gates records. Our approach to the retroactivity issue is circumscribed by the Supreme Court’s previous consideration of this issue in Wolff v. McDonnell, 1974, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935. In McDonnell, the Supreme Court reversed the Eighth Circuit’s holding that due process requirements in prison disciplinary proceedings must be applied retroactively so as to require that prison records containing determinations of misconduct, not in accord with required procedures, be expunged. The Supreme Court said:

The question of retroactivity of new procedural rules affecting inquiries into infractions of prison discipline is effectively foreclosed by this Court’s ruling in Morrissey that the due process requirements there announced were to be “applicable to future revocations of parole” . . . Despite the fact that procedures are related to the integrity of the fact-finding process . . great weight should be given to the significant impact a retro-activity ruling would have on the administration of all prisons in the country, and the reliance prison officials placed, in good faith, on prior law not requiring such procedures If Morrissey-Scarpelli rules are not retroactive out of consideration for burden on federal and state officials, this case is a fortiori.

Id., 418 U.S. 539, 573, 94 S.Ct. 2963, 2983, 41 L.Ed.2d 935, 961.

As a matter of policy, the Supreme Court based its decision against retroactivity on the adverse effects an alternative rule might have on the administration of prisons and on past good faith reliance of prison officials on then applicable law that did not require such procedures. Nonetheless, the Court’s language clearly indicates that it intended in McDonnell to state a nonretroactivity rule of categorical application; it did not intend to invite a case-by-case determination of past good faith.

In light of the Supreme Court’s holding in McDonnell, we hold that the district court erred in applying Gates retroactively so as to require expungement of pre-Gates records.

The judgment of the district court is therefore reversed.

      . 28 U.S.C. § 2281 provides that:
      An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.

      . 42 U.S.C. § 1983 provides that:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . Gates involved an omnibus bill for relief by prisoners at Parchman. With respect to the disciplinary rules element, Chief Judge Keady entered judgment for the plaintiffs on October 20, 1972, and ordered prison officials to frame disciplinary rules that would conform to constitutional standards. See Gates v. Collier, N.D.Miss.1972, 349 F.Supp. 881. The prison officials adopted new regulations that went into effect on January 26, 1973. The Fifth Circuit affirmed Judge Keady’s opinion with respect to disciplinary rules on September 20, 1974. See Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291.

      . A number of cases were consolidated in Sands for consideration by the en banc court. Although the particular issue discussed here was raised by the Baker v. Estelle section of the en banc case, we will refer to the case, hereafter in this opinion, as Sands.

      The Court also held in Sands that an administrative rule promulgated by a single state official, rather than by an administrative board or commission, was sufficient to trigger Section 2281. See Sands v. Wainwright, 5 Cir. 1973 (en banc), 491 F.2d 417, 426-427. That branch of the Sands holding is not relevant here since the constitutional challenge runs to no administrative order whatsoever.

      . Under Preiser, as we have noted, Leonard may not be entitled to relief in a § 1983 action because of the particular effect that would result in his case from remedying the general harm that is shared by all members of the class. This factor should have no more effect upon the class action dimension of Leonard’s complaint than is usually the case when the named plaintiff is finally offered a job or some analogous benefit from which his class is generally excluded. See Smith v. YMCA, 5 Cir. 1972, 462 F.2d 634; Jenkins v. United Gas Corp., 5 Cir. 1968, 400 F.2d 28. We have no standing problem in this case. See Long v. District of Columbia, 1972, 152 U.S.App.D.C. 187, 469 F.2d 927; Hadnott v. Laird, 1972, 149 U.S.App.D.C. 358, 463 F.2d 304.

      . Counsel for the plaintiffs makes the novel argument that the nonretroactivity rule stated in McDonnell should, itself, be applied nonretroactively. We think that this argument is without merit. It was implicitly rejected in Mills v. Sullivan, 5 Cir. 1974, 501 F.2d 939 and in Taylor v. Sterrett, 5 Cir. 1974, 499 F.2d 367.


author: THORNBERRY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lorchid GOFF, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Deola R. RICHARDSON, Defendant-Appellant.
    Nos. 74-2648, 74-2847.
    United States Court of Appeals, Fifth Circuit.
    March 13, 1975.
    Rehearing Denied April 9, 1975.

      Richard B. Sobol, Anne Pardee Buxton, Leesburg, Va., David J. Dennis, New Orleans, La., Richard T. Seymour, Washington, D. C., Jack Greenberg, Charles Stephen Ralston, New York City, for defendants-appellants.
    Gerald J. Gallinghouse, U. S. Atty., James J. O’Connor, Mary Williams Cázalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
    Before THORNBERRY, COLEMAN and ROSENN , Circuit Judges.

       Of the Third Circuit, sitting by designation.

   THORNBERRY, Circuit Judge:

In these appeals two criminal defendants claim that we must reverse their mail fraud convictions since the jury selection process in their cases violated the standards of the Jury Selection Act of 1968. 28 U.S.C. § 1861 et seq. In the district court, appellants properly filed a timely motion to dismiss the indictments for failure to comply with the Jury Selection Act. 28 U.S.C. § 1867(a). They based their challenge to the Eastern District of Louisiana’s jury pool on inadequate representation of blacks, and poor people. The district court denied the motion, finding that there was no substantial underrepresentation of blacks, and that poor people did not constitute a cognizable class under 28 U.S.C. § 1862. We agree that appellants have failed to show substantial underrepresentation of blacks. Since we reach the same conclusion as to poor people, we do not consider whether they are a cognizable class under the Jury Selection Act of 1968. Thus, finding no infirmity in the Eastern District of Louisiana jury selection procedures, we affirm the convictions.

UNDERREPRESENTATION OF BLACKS:

Appellants’ statistics showed that in 1970 (the date of grand jury selection) blacks comprised 26.33% of the voting age population and 21.06% of the registered voters in the Eastern District of Louisiana. Thus there was a 5.27% absolute differential between blacks in the voting age population and registered black voters, and a 20.02 percentage underrepresentation of blacks on the jury list. The court below found that this underrepresentation was not substantial within the meaning of the Jury Selection Act after assessing the impact of this underrepresentation on a grand jury of twenty-three persons. 370 F.Supp. at 302-04. A grand jury that statistically mirrored the voter registration list would contain 4.6 black persons, while one statistically mirroring the voting age population would contain 6.0 black persons. The court concluded that this amount of underrepresentation was not sufficiently substantial to require the Eastern District of Louisiana to supplement its voter registration list. 28 U.S.C. § 1863. We hold that the district court properly disposed of that issue. See United States v. McDaniels, 370 F.Supp. 295, 302-04 (E.D.La.1973).

UNDERREPRESENTATION OF FOOD STAMP RECIPIENTS:

The district court also examined the underrepresentation of the class of food stamp recipients in the Eastern District of Louisiana on the jury list. The appellants’ statistics demonstrated that in the Eastern District only 30.03% of the food stamp recipients over twenty-one are registered to vote. In contrast 77.76% of the remainder of the voting age population have registered. The district court felt these figures proved substantial underrepresentation, concluding, “. . . food stamp recipients, as a group, are 47.73% underrepresented on voters registration list.” 370 F.Supp. at 304. The district court erred in concluding that this underrepresentation on the voters’ registration list thereby established an underrepresentation on the grand jury list'. The above statistics show only the registration rate differential between food stamp recipients of voting age and the voting age population at-large. That figure, however, does not accurately disclose the impact of that registration differential on the jury list. We think the district court should have proceeded to assess the impact of this registration rate differential on a typical grand jury, just as it did in the case of blacks. The figures showed that food stamp recipients constitute 10.51% of the voting age population, and 4.34% of those on the jury list. Thus a twenty-three person grand jury that mirrored the jury list would contain 1.0 food stamp recipients, while one that mirrored the voting age population would contain 2.4 food stamp recipients. The registration rate differential has the same impact as in the case of blacks. We find this underrepresentation is not so substantial as to require supplementation of the voter registration list. Thus we express no view on the cognizability of the class of food stamp recipients or poor people under 28 U.S.C. § 1862.

Our result comports with the underlying purposes of the Jury Selection Act of 1968. The Act primarily sought to eliminate the “key man” system in the federal jury selection process. Congress felt that utilization of voter registration lists as the primary source of names for the master jury list would provide a more representative cross section of the community. That body recognized that in some instances, failure of particular groups in a community to register would mean that the voter registration list would not accurately represent a fair cross section of the community. But where, as in this case, the impact of the underrepresentation does not substantially affect the composition of the average grand jury, the Act does not require the district to incur the substantial expense and administrative inconvenience necessary to supplement the voter registration list.

Affirmed.

      . The government charged that the appellants fraudulently received welfare benefits, a violation of 18 U.S.C. § 1341.

      . The full text of that opinion is found in United States v. McDaniels, 370 F.Supp. 298 (E.D.La. 1973).

      . Neither the absolute nor the comparative measure of underrepresentation can be considered determinative of the substantiality question. See Gewin, An Analysis of Jury Selection Decision, 506 F.2d 811, 834-35 (1975) (printed as an appendix to Foster v. Sparks, 506 F.2d 805 (5th Cir. 1975)).

      . Appellants defined “poor people” for the purpose of their challenge as “food stamp recipients.” They took a statistically significant sample of food stamp recipients and checked to see how many of those names appeared on the voter registration lists in Eastern District of Louisiana parishes. The measure of economic status, then, was whether a prospective juror qualified for food stamp assistance rather than an absolute dollar ceiling on income.

      . Appellants point out that their figures probably understate the differential because not all poor people register for food stamps. Brief for Appellants at 24-26. But in this case, there is no indication of the steps taken to purge the voter registration list. Failure to do so would tend to offset the understatement. See Gewin, The Jury Selection and Service Act of 1968: Implementation in the Fifth Circuit Court of Appeals, 20 Mercer L.Rev. 349, 369 (1969).

      . Our analysis is similar to that of the Second Circuit in United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974).


author: LEWIS R. MORGAN, Circuit Judge:

text:
    Jerry L. JOHNSON, Petitioner-Appellant, v. R. C. WRIGHT, Warden, et al., Respondents-Appellees.
    No. 74-3017.
    United States Court of Appeals, Fifth Circuit.
    March 13, 1975.
    As Amended April 2, 1975.
    Rehearing and Rehearing En Banc Denied April 28, 1975.

      Philip S. Davi, Atlanta, Ga. (court appointed), for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., Lewis R. Slaton, Dist. Atty., Atlanta Jud. Circuit, Joel M. Feldman, Morris H. Rosenberg, Carter Goode, James H. Mobley, Jr., H. Allen Moye, Asst. Dist. Attys., Atlanta, Ga., for respondents-appellees.
    Before DYER, MORGAN and GEE, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Appellant was convicted in Superior Court of Fulton County, Georgia, of armed robbery and of carrying a concealed and unlicensed pistol. He appeals the district court’s denial of his petition for habeas corpus on two grounds:

(1) his warrantless arrest was not based on probable cause and violated his rights under the Fourth Amendment;

(2) the trial judge’s charge to the jury on the weapons count violated his right to due process. For reasons explained below, we hold that his second contention is correct, and we therefore reverse the judgment of the district court.

I.

The challenged arrest of appellant occurred in the following manner. In the early afternoon of January 7, 1972, Officer D. F. Lindstrom of the Atlanta Police Department received a call on his radio stating that there was a suspicious man at a grocery store in the neighborhood which Lindstrom was currently patrolling. Upon arriving at the store, Lindstrom interviewed several employees, who told him that they believed the man in question had participated in a robbery of the store two days earlier. They described him as a tall black male in his early twenties and wearing a floppy hat; they told Lindstrom that he had left the grocery in a red Ford Fairlane, with a jacked up rear end and with its license plate wired on. They indicated to him their belief that three other black males, one or two of whom were wearing hats, were also riding in the car; appellant was one of these passengers. Lindstrom passed this information along over the police radio, and began to patrol the neighborhood. Shortly, he and R. R. Wilbanks, another officer, both observed a car fitting the employees’ description precisely and occupied by four black males. Wilbanks directed the driver of the Ford to pull over, and approached the car to ask for his driver’s license. Upon observing a .22 caliber pistol on the front seat, Wilbanks ordered the men out of the car and- immediately frisked them. By this time, two additional police vehicles had arrived at the scene, and Wilbanks placed each suspect in one of the cars. He next searched the car and found a sawed-off shotgun; the suspects were then taken to the police station, where they were held on the robbery and gun possession charges.

Our analysis of this series of events begins with the proposition that although “searches conducted without the prior issuance of a warrant are, for the most part, per se unreasonable, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), there are a few clearly delineated exceptions to the warrant requirement of the Fourth Amendment.” United States v. Anderson, 500 F.2d 1311, 1315 (5th Cir. 1974). In addition, we do not deal here with an indivisible process but with five conceptually distinct stages of the search and arrest, each one of which must satisfy constitutional standards.

First, there can be no question that the officers were justified in stopping the car. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), United States' v. Rollerson, 491 F.2d 1209 (5th Cir. 1974). The car precisely fitted the description given by a store employee who alleged that its driver had been involved in a robbery two days previously.

Second, the officers clearly acted properly in arresting the driver when they ascertained that he fit the description given by the store employee. Indeed, appellant does not challenge this contention, and we repeat it only for purposes of logical coherence.

Third, having reason to believe at least one of the car’s occupants might have committed armed robbery, and seeing a pistol on the front seat of the vehicle, the officer acted reasonably in ordering the occupants out to be frisked for other weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), United States v. Rosenberg, 458 F.2d 1183 (5th Cir. 1972).

Fourth, having arrested the driver, the police acted properly in searching the car itself for evidence pertaining to the crime. This warrantless search was proper because the officers had probable cause to believe they would find evidence pertaining to the crime, Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), and because they were dealing with a temporarily stopped automobile, a search of which is justified on the basis of exigent circumstances, see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Naturally, they could not safely and effectively search the vehicle unless it was empty of all passengers, and they therefore acted reasonably in detaining the passengers outside the car. Nor did they act improperly in segregating the passengers in separate cars for the duration of the search; the police had good reason to suspect that these men might be dangerous and might have been involved in a criminal offense. In segregating them, the police reduced any chance that the passengers would confer with each other as to alibis, or that they might endanger the officers.

Finally, when Wilbanks discovered a sawed-off shotgun in the car, he acted properly in arresting all the occupants, since possession of such a weapon constitutes both a federal and a state offense.

Probable cause existed to arrest appellant, and his Fourth Amendment rights were not violated.

II.

At appellant’s trial, the judge charged the jury in part:

Now, this defendant has been charged . . . with the possession of a pistol without a license, and with the carrying of a pistol outside of his home, not in an open manner. I instruct you that the State has proven a prima facie case of the possession of a pistol in this case by someone who is alleged by the Grand Jurors here to have been the defendant, which the defendant denies. And when a prima facie case is made, I charge you that it is then upon the defendant, if you believe the defendant to be the person alleged to have committed this crime, to show that he did possess a license to carry the weapon alleged to have been carried by the State. The defendant in doing so must prove that a license existed to carry the weapon in order to overcome the prima facie showing of the violation of this law by the State. (Emphasis supplied.)

On appeal, the Georgia Supreme Court found this to be a proper charge on violations of Ga.Code Ann. § 26 — 2903 and to contain no constitutional errors. Johnson v. State, 230 Ga. 196, 196 S.E.2d 385 (1973). We hold that the trial court’s instruction violated appellant’s right to due process in permitting the jury to infer that his pistol was unlicensed from evidence that he possessed one, and also in shifting to him the burden of proof on an essential element of the offense.

In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) established that the due process clause of the Fourteenth Amendment requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime . . . However, the Supreme Court has never decided whether this principle applies to the area of evidentiary presumptions and inferences. For example, in Leary v. United States, 395 U.S..6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Court struck down a statutory presumption that possession of marijuana, unless satisfactorily explained, was sufficient to prove that the defendant knew that the marijuana had been illegally imported. Concluding that any given marijuana might have been grown domestically, and that a user was unlikely to be aware of its origin, the Court stated that an inference is,

“irrational” or “arbitrary,” and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. 395 U.S. at 36, 89 S.Ct. at 1548.

The Court added in a footnote that since the challenged inference did not satisfy the “more likely than not” standard, it “need not reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.” Id. n. 64. Likewise, in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Court left the issue unresolved in dealing with the constitutionality of a jury instruction that it might infer from possession of heroin and cocaine that the defendant knew the drugs to have been illegally imported. The Court simply held the heroin inference valid and the cocaine inference invalid, whether judged by the more likely than not standard or the beyond a reasonable doubt standard (i. e. the evidence necessary to invoke the inference is sufficient to permit a rational juror to find the inference beyond a reasonable doubt.) Finally, in Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380 (1973), the Court ruled that, “if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard ... as well as the more-likely-than-not standard, then it clearly accords with due process.”

The inference here involved, that from proof of the defendant’s possession of a pistol the jury may conclude that the pistol is unregistered, is clearly violative of due process by either standard. A more arbitrary and unreasonable conclusion can scarcely be imagined, since it is not even more likely than not that a given pistol will be unregistered.

Additionally, the charge is unconstitutional because it shifts the burden of proof of an essential element of the crime to the defendant. Of course, the state always bears the burden of proof in a criminal trial, and any such shift renders the trial fundamentally unfair. Smith v. Smith, 454 F.2d 572 (5th Cir. 1971).

This does not mean, of course, that permissible inferences which satisfy the more likely than not and the reasonable doubt standards violate due process. For example, in Dyer Act cases, the jury may infer from unexplained possession of a recently stolen auto that the defendant knew it to be stolen. There are two crucial distinctions between such an inference and the one involved here.

First, at issue under the Dyer Act is knowing possession of stolen property; “[kjnowledge and intent, because of their nature, must largely be proved by circumstantial evidence.” Jackson v. United States, 330 F.2d 679, 681 (8th Cir. 1964). Therefore, once the government has proved that the defendant possessed the prohibited object, the jury may infer that he possessed it knowingly. Under the Georgia scheme, however, the state is not even required to prove possession of the prohibited object, an unlicensed pistol. Rather, the state is merely required to prove that the defendant possessed any pistol. The inference relates not to the defendant’s knowledge, but to the nature of the object possessed.

Second, the inference employed in' Dyer Act cases is permissible; the jury may make the inference, but it is not required to do so. The burden of proof does not shift to the defendant; he may be acquitted without offering any evidence at all if the jury feels the government has not proved his guilt beyond a reasonable doubt. As we have noted, the Georgia inference goes further and impermissibly shifts the burden of proof to the defendant.

It is no longer a bar to federal habeas relief that granting the writ will not result in petitioner’s immediate release. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968); Glazier v. Hackel, 440 F.2d 592 (9th Cir. 1971); Velasquez v. Rhay, 408 F.2d 9 (9th Cir. 1969); United States ex rel. Rybarik v. Maroney, 406 F.2d 1055 (3rd Cir. 1969); Rhodus v. Patterson, 404 F.2d 890 (10th Cir. 1968).

The judgment of the district court is therefore affirmed in part and reversed in part. The cause is remanded with instructions to issue the writ as to appellant’s gun possession conviction.

      . The statute provides:
      A person commits a misdemeanor when he has or carries on or about his person outside of his home, automobile or place of business any pistol or revolver, whether concealed or not, for which he has not obtained a license from the ordinary of the county in which he resides.

      . 18 U.S.C. § 2312.


author: COLEMAN, Circuit Judge.

text:
    STATE NATIONAL BANK OF EL PASO, Trustee for Lee Moor Children’s Home, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 74-2276.
    United States Court of Appeals, Fifth Circuit.
    March 13, 1975.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Chief, Appellate Sec., U. S. Dept, of Justice, Tax Div., Washington, D. C., Eugene G. Sayre, Tax Div., Dept, of Justice, Dallas, Tex., Michael L. Paup, Ernest J. Brown, Acting Chief, Appellate Sec., Tax Div., Dept, of Justice, Washington, D. C., Ronald F. Ederer, El Paso, Tex., for defendant-appellant.

      Robert B. Zaboroski, Tad R. Smith, El Paso, Tex., for plaintiff-appellee.
    Before THORNBERRY, COLEMAN and ROSENN, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   COLEMAN, Circuit Judge.

This is a suit for the refund of $473,-641.70 in federal income taxes ($348,-050.14 in taxes, plus $125,591.56 interest). The State National Bank of El Paso, the suing taxpayer, is Trustee for the Lee Moor Children’s Home. This, undoubtedly, is a charitable trust. The trust owned a 2875 acre irrigated farm in El Paso County, the largest farm in the County. The annual cost of operating the farm was $800,000. The necessary equipment was valued at $350,000.

The question is whether a purported lease agreement with Charles Calhoun was in fact a lease, compensated by rents, exempt from taxation under the pre-1969 I.R.C. § 512(b)(3).

By a directed jury verdict the District Court held, as a matter of law, that there was a valid lease and hence the taxpayer was entitled to the refund. We are of the view that reasonable men might well differ as to the operative inferences to be drawn from the undisputed facts. Consequently, the directed verdict was legally erroneous and we reverse for a new trial.

In 1959 the Bank, as Trustee, became the owner of the 2875 acre farm. It was well aware that if it operated the farm it would be liable for the unrelated business income tax imposed by § 511(a) of the Internal Revenue Code. It began to look for a lessee. The size of the farm and the huge cost of its operation caused great difficulty in finding one. Finally, in late 1959, Charles Calhoun, manager of a neighboring farm, asked the Bank about operating Lee Moor Farm.

Negotiations between the Bank and Calhoun resulted in the execution of a contract for the year 1960. In relevant part it reads:

“That Lessor, for and in consideration of the agreements hereinafter set forth kept, performed and observed by Lessee, has demised and leased to Lessee the real estate in El Paso County, Texas, described on Exhibit A attached hereto and incorporated herein by reference, for the purpose of cultivating and producing thereon and therefrom cotton, feed and other crops and, from time to time, maintaining a cattle operation;
“TO HAVE AND TO HOLD the above described premises with all the privileges and appurtenances belonging to same, unto the Lessee from the date hereof until December 31, 1960, unless terminated before such time under the provisions of this instrument, on the following terms and conditions:
“1. Lessee shall cultivate and farm said premises in a good and farmerlike manner and deliver to Lessor, as rent for such premises, nine tenths (9/io) of all the cotton and cotton seed, feed and other crops raised upon such premises during said year. Lessee shall handle the marketing of all such crops and shall pay nine-tenths (9/io) of the value thereof when marketed to the Lessor.
$ $ * & $ $
“4. At Lessor’s expense, Lessee shall maintain and repair all buildings, fences and improvements upon the premises or which may at any time during such term be erected thereon. * * * * * *
“7. Lessor shall furnish free of charge and expense to Lessee:
(a) All tools, equipment, machinery, feed and cotton seed, and everything else necessary to the planting and maturing of such crops.
(b) All labor, or costs for labor hired by Lessee, upon such crops and all expense of hauling same to the gin and barn.
(c) All costs for the maintenance and repair of all buildings, fences and improvements, and for maintaining the premises and every part thereof in good repair and condition. Lessor may pay such costs itself or simply reimburse Lessee for same.
“8. Lessor shall advance to Lessee as a loan the sum of $700.00 per month commencing January 15, 1960 (with the fractional month of January prorated) for his personal and family expenses. Lessee shall repay Lessor therefor without interest at the end of the term of the lease.
“10. From time to time, Lessee may buy cattle and conduct a cattle operation on the farm. Lessor will advance all funds required to maintain a normal cattle operation. In the event that Lessee maintains a cattle operation on the premises, nine-tenths (9/io) of the net profits shall be paid to Lessor as rental. ‘Net profits’ shall mean the gross receipts from the cattle operation less all costs, expenses, damages, claims, liabilities and charges for the year.
“11. If, during such term, Lessee, after 10 days’ notice of any breach of any of his obligations under this contract, shall be in breach or default therein, the Lessor may declare the lease at an end, and the same shall thereupon terminate, and Lessor shall have the right to enter, take possession of the premises and farm, harvest and market the crops and conduct' the cattle operation, if any, to the exclusion of the Lessee. In such event, Lessor shall render to Lessee (a) the market value when marketed of all the crops so raised, less any damages, costs or expenses incurred in such operation or suffered by reason of Lessee’s breach, and less Lessor’s nine-tenths (9/io) of such value, and (b) one-tenth (Vio) of the net profits as of the termination of the lease on the cattle operation.
“12. Lessee shall in no event be construed to be an agent, servant, employee or partner of Lessor, and the relationship between Lessee and Lessor shall be and is that of Tenant and Landlord.”

In August, 1960, the lease was amended and extended for another year. The basic effect of the amendment was to change Calhoun’s share of the net profits to the greater of 5% or $15,000.

On January 1, 1962, an amended two year lease was executed. The amendment eliminated guaranteed income to Calhoun, provided that Calhoun pay “interest” on the expense money advanced, and decreased taxpayer’s share of the profits and expenses to 90%. The precise wording of the amendment was:

“11. Lessee shall pay to Lessor as rental under this lease 90% of the net profits earned on such property through farming and cattle operations in any one calendar year during the term of such lease. ‘Net profits’ shall mean the gross receipts from the farming and cattle operation in any one calendar year, less all costs, expenses, damages, claim, liabilities, interest and charges for the year. Depreciation on all depreciable assets supplied by Lessor shall also be deducted in computing ‘net profits’ for the purposes of this paragraph. Lessor shall be reimbursed out of the gross receipts for all expenses and advances paid by Lessor pursuant to paragraphs 3, 6 and 9 [for farm maintenance and repair and for feed, seed, labor and equipment costs], but Lessee shall not be obligated to reimburse Lessor except out of such gross receipts (except for interest thereon as provided in paragraph 12).
“12. Lessee shall pay to Lessor on all sums advanced to Lessee by Lessor for operations under this lease interest at the rate of 6% per annum.”

The only issue at trial, which remains the only issue on appeal, is whether the payments made under the contracts were “rents” within the meaning of the pre1969 I.R.C., § 512(b)(3).

“It appears settled that the expressed intent of the parties [is not] conclusive as to the existence or non-existence of a partnership or joint venture for federal tax purposes . ‘[T]he realities of the taxpayer’s economic interest rather than the niceties of the conveyancer’s art should determine the power to tax.’ ”

Haley v. Commissioner of Internal Revenue, 5 Cir., 1953, 203 F.2d 815, 818.

In black letter law, a lease is a transfer of an interest in and possession of property for a prescribed period of time in exchange for an agreed consideration, called “rent”.

In support of the taxpayer’s position it must be recognized that the taxpayer did transfer the property to Calhoun for a prescribed period of time and for a clearly defined consideration.

While not denying that the contract does have some of the characteristics of a lease, the government observes that it also has many of the characteristics of a management contract. Particular attention is called to the facts that:

1. All major expenditures were subject to the approval of taxpayer. In a management contract, the employer has the final word on expenses.
2. The taxpayer advanced (paid) all of the operating expenses and, depending on the year, received 90% to 95% of the profits. In a management contract the expenses are borne by the employer.
3. The amount of taxpayer’s rental income depended on the profits of the business. In a management contract the employer’s income depends on the profits of the business.
4. All risk of loss was upon taxpayer. In a management contract, risk of loss is upon the employer.

These facts, the government says, show that this was a management contract, not a lease. At least, it is argued, the relationship had enough of the characteristics of a management contract to preclude “lease” characterization as a matter of law and we must agree.

In United States v. Myra Foundation, 8 Cir., 1967, 382 F.2d 107, a tax exempt foundation entered into a contract with a farmer described by the trial court as follows:

“That in the year, 1958, farm lands owned by the Myra Foundation were rented by Plaintiff to ten separate tenants pursuant to lease agreements, either written or oral; the Plaintiff as landlord received, as rent for said property for said year, pursuant to the lease, 50 per cent of the crops and produce grown thereon in the case of nine tracts so leased and one-third of the crops and produce grown in the case of one lease; that such leases are in common usage in the area and are commonly entered into by landlord and tenant for the rental of farm lands; that the Myra Foundation did not participate or engage in the farming business either individually or as a joint operation with others; that the crops or produce received by the Plaintiff in the year, 1958, constituted rents from real property within the meaning of Section 512(b)(3) of the Internal Revenue Code.”

The Court of Appeals affirmed the trial court holding that the proceeds of this contract were tax-exempt rents. It specifically rejected the government’s contention that “the landlord by furnishing the seed and one-half the cost of fertilizer, weed spray, and combining, has engaged in farming as a partner or joint adventurer”. The Court considered such arrangements not inconsistent with “lease” since they are “not unusual”, saying:

“The evidence shows that such arrangements are not uncommon in share farm leases. Modern agricultural technology establishes that the use of improved seed, fertilizer and weed spray will under ordinary conditions materially increase the yield and thus increase the net return of both landlord and tenant substantially more than the amount invested by each in such items. There is nothing unusual about providing in leases for the division of the cost of such items which increase the return of both the landlord and the tenant.”

The evidence in our case, however, is not so conclusively clear cut.

Cooper Tire & Rubber Company Employees Retirement Fund v. Commissioner of Internal Revenue, 6 Cir., 1962, 306 F.2d 20, is also similar to this case. Cooper involved a situation in which the entire financing of a going business was done by a tax-exempt trust which attempted to escape the unrelated business income tax on the ground, among others, that the income it received was rents, or at least, was passive investment income.

The trust bought some twenty tire manufacturing machines on borrowed money. It then “leased” the machines it had purchased to the tire company from which it had bought them. The loan was repaid with the rental income.

The Court rejected taxpayer’s argument that its tire manufacturing income was non-taxable, passive investment income. “To us the deal looks more like one to finance the entire purchase price of machinery needed by the tire company rather than a conventional investment”, 306 F.2d at 21.

In other words, the Court characterized the transaction not as a lease of real property (including personal property leased with the real property), but as the financing of an entire business operation. Income from such a transaction, it said, is not passive investment income and is taxable.

In Boeing v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374, we said:

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case— but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

Applying the Boeing standard, the taxpayer-Calhoun relationship presently before us had enough of the indicia of a management contract that reasonable men might conclude that it should be so characterized.

On the other hand, considering prevailing agricultural practices, as they were considered in United States v. Myra Foundation, supra, reasonable men might well conclude that having surrendered possession and control of this valuable farm for a fixed period of time the method used for the computation of the rent supported the transaction as a lease rather than a management contract.

This the jury should have been allowed to decide.

The judgment of the District Court will accordingly be reversed; and the cause remanded for a new trial.

Reversed and remanded.

      . “There shall be excluded [from the definition of unrelated business income] all rents from real property (including personal property leased with the real property)”, I.R.C., § 512(b)(3).
      For taxable years after 1969 all income received from situations of this type will be taxed:
      [The rent exclusion shall not apply]
      “(ii) if the determination of the amount of such rent depends in whole or in part on the income or profits derived by any person from the property leased (other than an amount based on a fixed percentage or percentages of receipts or sales).” I.R.C., § 512(b)(3)(B)(ii).

      . I.R.C. § 511(a)(1) provides:
      “(a) Charitable, etc., organizations taxable at corporation rates.—
      “(1) IMPOSITION OF TAX. — There is hereby imposed for each taxable year on the unrelated business taxable income (as defined in section 512) of every organization described in paragraph (2) a normal tax and a surtax computed as provided in section 11. In making-such computation for purposes of this section, the term ‘taxable income’ as used in section 11 shall be read as ‘unrelated business taxable income’.”
      I.R.C., § 513(a) provides:
      “(a) General Rule. — The term ‘unrelated trade or business’ means, in the case of any organization subject to the tax imposed by section 511, any trade or business the conduct of which is not substantially related (aside from the need of such organization for income or funds or the use it makes of the profits derived) to the exercise or performance by such organization of its charitable, educational, or other purpose or function constituting the basis for its exemption under section 501 (or, in the case of an organization described in section 511(a)(2)(B), to the exercise or performance of any purpose or function described in section 501(c)(3) . . .”


author: DUNIWAY, Circuit Judge.

text:
    Orville J. GRIFFIS, Jr., Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 73-2821.
    United States Court of Appeals, Ninth Circuit.
    Jan. 14, 1975.
    Don Gartner, Community Advocates/Legal Aid Society of Santa Cruz County, Capitola, Cal., for plaintiff-appellant.
    Brian B. Denton, Asst. U. S. Atty., San Francisco, Cal., for defendant-appellee.
    Before BROWNING and DUNIWAY, Circuit Judges, and MARKEY, United States Court of Customs and Patent Appeals.

       The Honorable Howard T. Markey, Chief Judge, United States Court of Customs and Patent Appeals, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge.

This case presents the question whether severe chronic alcoholism and related drug abuse, standing alone, can, if serious enough, amount to a disability as defined in the Social Security Act. Section 416(i) of Title 42, United States Code, defines “disability” as: “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Section 423(d) contains the identical definition, and adds in subparagraph (3): “For purposes of this subsection, a ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

The decision of the Secretary’s Hearing Examiner denied Griffis’ claim and was approved by the Appeals Council, thus becoming a final decision of the Secretary. The district court upheld the Secretary’s decision. Griffis appeals and we reverse.

The record is full of evidence that Griffis has long suffered from severe chronic alcoholism and related drug abuse, and the Hearing Examiner so found. Some of his discussion of the evidence in this opinion can be read as finding that Griffis, in spite of his problem, is not unable to engage in any gainful activity as the statute requires. However, in the portion of his opinion entitled “Decision,” the Hearing Examiner stated his findings as follows:

* * * * * *
(3) The claimant suffers from severe chronic alcoholism and related drug abuse.
(4) This addiction, rather than any underlying physical and mental impairment is the primary cause of the claimant’s inability to obtain work or remain employed when he does obtain it.
(5) Such chronic addiction is, absent underlying physical or mental impairments of sufficient severity, insufficient basis to support a finding of entitlement to disability benefits under the Social Security Act.

These findings lead us to conclude that the Examiner applied an improper legal standard.

The proposition that chronic acute alcoholism is itself a disease, “a medically determinable physical or mental impairment,” is hardly debatable today. The Secretary does not disagree. We know, too, that alcoholism is often accompanied by underlying severe physical or mental impairment, or both, although this is not always the case. The question presented to the Secretary was whether Griffis’ impairment was serious enough to make him disabled — that is, unable to engage in any gainful activity. The presence or absence of “underlying” physical or mental impairment as accompaniments or products of the disease may be relevant evidence relating to the decision of that question, but absence of them is not controlling. On this proposition most of the cases are in agreement. Lewis v. Celebrezze, 4 Cir., 1966, 359 F.2d 398, 400 (dictum); Mullins v. Cohen, W.D.Va., 1969, 296 F.Supp. 260, 263 (similar); Evans v. Richardson, E.D.Cal.1973, CCH U.I.R. If 17,024; Hernandez v. Richardson, N.D.Cal., 1973, CCH U.I.R. 1f 17,-046; cf. Rosas v. Montgomery, 1970, 10 Cal.App.3d 77, 88 Cal.Rptr. 907. Also in point is Marion v. Gardner, 8 Cir., 1966, 359 F.2d 175, in which Judge Blackmun, as he then was, found that “despite the apparent absence of any impairment other than his (sexually) deviant tendencies, (the applicant) meets the disability requirement of the statute.” 359 F.2d 181. This decision was made in the face of a regulation . of the Secretary, since repealed (former 20 C.F.R. § 404.1519(c)(2)), which provided, with specific reference to sexual deviation and alcoholism:

In the absence of an associated severe psychoneurosis or psychosis, a personality disorder does not in itself result in inability to engage in substantial gainful activity.

Because the Hearing Examiner applied an improper legal standard to the evidence, the Secretary’s decision cannot stand. Kovac v. I.N.S., 9 Cir., 1969, 407 F.2d 102, 104. We express no opinion as to what the ultimate decision in the case should be. There should be a new hearing, at which the proper standard will apply.

The judgment of the district court is reversed and the case is remanded with directions to vacate the Secretary’s decision and to remand the case to the Secretary for a further hearing at which the proper legal standard will be applied.

      . Three decisions appear to be to the contrary: Thompson v. Flemming, D.Or., 1960, 188 F.Supp. 123; Mays v. Ribicoff, S.D.W. Va., 1962, 206 F.Supp. 170; and Echols v. Gardner, S.D.Tex., 1967, 276 F.Supp. 499. In Thompson and Echols, the court relied on another regulation, since repealed. They are thus not in point now. In Mays there was a determination that Mays could work. In so far as Mays can be read as holding that an alcoholic can never be found disabled because all that he need do is “stop alcohol,” we think it wrong. Some alcoholics can stop; more cannot.