author: HEANEY, Circuit Judge.

text:
    Wardell N. SMITH, Appellant, v. Warden Charles WOLFF, Nebraska State Penitentiary, Appellee.
    No. 74-1030.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1974.
    Decided Nov. 12, 1974.

      James J. DeMars, Lincoln, Neb., for appellant.
    Ralph H. Gillan, Asst. Atty. Gen., Lincoln, Neb., for appellee.
    Before MATTHES, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

Wardell N. Smith, a Nebraska state prisoner, appeals the dismissal of his petition for writ of habeas corpus. He challenged his conviction and sentence on numerous constitutional grounds. The District Court held two evidentiary hearings and dismissed the petition. It found that petitioner had not exhausted his state remedies on many of the claims and held that they were not properly before the federal court. Those claims which had been previously presented to the Nebraska courts were denied on their merits. Two issues are presented on appeal. First, whether the doctrine of exhaustion of state remedies precludes petitioner from seeking federal habeas relief when Nebraska, for procedural reasons, will no longer entertain the petitioner’s claims. Second, whether the District Court correctly ruled on those claims that it found to be properly before it.

The petitioner pleaded guilty to first degree murder while in the commission of a robbery on May 24, 1965. On June 15, 1965, he was sentenced to life imprisonment. No direct appeal was taken from the conviction and sentence.

The petitioner’s first post conviction action was filed in July of 1966; relief was denied on February 24, 1967. The petitioner then filed a motion for rehearing. The state court viewed the motion as one for a new trial and dismissed it for being out of time. An appeal was then taken to the Nebraska Supreme Court. That court viewed the appeal as from the denial of the motion for a new trial and affirmed. State v. Smith, 182 Neb. 458, 155 N.W.2d 368 (1968). The merits of the petitioner’s constitutional claims were not considered.

The petitioner’s second post conviction action was filed on March 25, 1970. The state trial court held an evidentiary hearing and relief was denied on July 30, 1971. The Nebraska Supreme Court affirmed. State v. Smith, 188 Neb. 388, 196 N.W.2d 918 (1972). It held:

This, however, is a second motion for post conviction relief on behalf of the defendant. In State v. Reichel, 187 Neb. 464, 191 N.W.2d 826, we held: “After a first motion for post conviction relief has been judicially determined, any subsequent motion for post conviction relief from the same conviction and sentence may be dismissed by the district court, unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of filing a prior motion for post conviction relief.” We see no reason to depart from that holding in this case.

Id.

Having twice been before the Nebraska Supreme Court without receiving a ruling on the merits of his constitutional claims, the petitioner filed for habeas corpus relief in the United States District Court for the District of Nebraska on August 3, 1972.

I. Whether the District Court Properly Refused to Consider the Merits of the Petitioner’s Claims Which Had Not Previously Been Presented to the State Courts.

It has been established since Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), that the exhaustion of state remedies doctrine is a rule of comity and not a rule limiting the power of federal courts to give habeas relief. Yet, as we said in Barry v. Sigler, 373 F.2d 835 (8th Cir. 1967):

Nevertheless, the teaching of Fay v. Noia, supra, emphasizes that a federal district court should not “upset a state conviction without an opportunity to the state courts to correct a constitutional violation.” * * * The rationale of the rule aids petitioner. The state district court is cognizant of the litigation and if constitutional guarantees not otherwise litigated need correction, the state courts are the logical courts to hold the hearing and review their own cases.

Id. at 838 (Footnote omitted.); see, Picard v. Connor, 404 U.S. 270, 275-276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

We have been sensitive to this principle of comity. In Tyler v. Swenson, 440 F.2d 621 (8th Cir. 1971), the petitioner had taken a direct appeal from his conviction and sentence wherein he presented the same issues he sought to raise in federal habeas corpus. But because the state supreme court had not passed upon the merits of those claims, as they were framed in the federal court, we dismissed the petition without prejudice. There was no indication that post conviction relief in the state courts was no longer available to the petitioner. This same respect for the state courts is also found in Blunt v. Wolff, 501 F.2d 1138 (8th Cir. 1974). There, the petitioner argued, as Mr. Smith does here, that the Nebraska procedural rule requiring that all available constitutional claims be presented in the first attack on the conviction and sentence precluded him from further relief in the state courts. Nevertheless, because of the circumstances there presented, we believed that the Nebraska Supreme Court might afford the petitioner a new appeal and, therefore, dismissed the petition without prejudice.

In the instant case, however, there is no reason to believe that further relief is available in the state courts. The Nebraska Supreme Court has twice refused to pass upon the merits of the petitioner’s constitutional claims. In its second decision, it clearly stated that the petitioner has procedurally forfeited his state remedies. Further, the State’s Assistant Attorney General, in oral argument, conceded that it was unlikely that the petitioner could bring a third post conviction action in state court. On the facts here presented, the failure to first present all constitutional claims to the state courts is not grounds for the dismissal of the petition for writ of habeas corpus. See, Reynolds v. Lockhart, 497 F.2d 314, 316 (8th Cir. 1974).

This Court said in Harris v. Brewer, 434 F.2d 166 (8th Cir. 1970):

It has been settled law since Fay v. Noia, * * * that a state prisoner who may have procedurally forfeited his right in the state courts to raise federal constitutional claims does not similarly forfeit his right in federal court, unless he has deliberately and knowingly waived the same. * * *

Id. at 168 (Citation omitted.); accord, Losieau v. Sigler, 421 F.2d 825 (8th Cir. 1970); Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974).

The exhaustion of state remedies requirement applies only when state court relief is available to the petitioner at the time he files his petition for habeas corpus in federal court. Humphrey v. Cady, 405 U.S. 504, 516, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Fay v. Noia, supra, 372 U.S. at 435, 83 S.Ct. 822. The Nebraska procedural rule precludes further relief in the state court. Federal relief can be denied only if the petitioner has deliberately bypassed the state procedure for the adjudication of his federal claims. This waiver of state relief:

* * * must be the product of an understanding and knowing decision by the petitioner himself, who is not necessarily bound by the decision or default of his counsel. * * *

Humphrey v. Cady, supra, 405 U.S. at 517, 92 S.Ct. at 1056.

Whether the petitioner has deliberately bypassed the state procedure is a federal question to be judged by federal standards. Harris v. Brewer, supra, 405 U.S. at 168, 92 S.Ct. 1048. The court below found that the petitioner had not deliberately bypassed the state remedies. That finding is not clearly erroneous.

Since further relief in the state courts is no longer available, and since the petitioner has not deliberately bypassed the state courts, we remand to the District Court with directions to consider the constitutional claims of the petitioner which it found were not properly before it.

II. Whether the District Court Correctly Ruled on the Merits of Those Claims It Found to be Properly Before It.

The petitioner alleged that: His guilty plea was accepted by the court in violation of due process of law in that the court failed to inquire into the factual basis of petitioner’s guilty plea.

The court properly denied relief on the basis of our decision in Meller v. Missouri, 431 F.2d 120 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971), which held that the procedural requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were not to be applied retroactively. On remand, however, the court shall consider the petitioner’s claims which challenge the voluntariness of his guilty plea under the totality of the circumstances. The petitioner alleged that:

His guilty plea was accepted by the court in violation of due process of law in that the court failed to inquire fully into voluntariness and knowledge of the petitioner as to the consequences of entering a plea of guilty.

and that:

His guilty plea was accepted by the court in violation of due process of law in that the court failed to notify the petitioner at the time the guilty plea was accepted as to the exact nature of the charge against him and did not require a reading of the information at that time.

As this Court stated in Knight v. State of Minnesota, 484 F.2d 104 (8th Cir. 1973):

-x- x- * Although we have held that Boykin’s requirement that the record affirmatively show that a guilty plea was voluntarily and understandingly made is not retroactive, Meller v. Missouri, * * * the necessity that courts approach guilty pleas with “utmost solicitude” is to some extent inherent in the traditional concept of due process. * * *

Id. at 106 (Citations omitted.)

The petitioner also claimed that he was denied effective assistance of counsel. He charged that:

1. He was denied effective assistance of counsel in that counsel failed to investigate properly either the law or the facts of his case to determine whether there was a defense to the charges against him;
2. He was denied effective assistance of counsel in that counsel used coercion, threats, and other means to induce the petitioner to plead guilty;
3. He was denied effective assistance of counsel in that counsel advised the petitioner that upon trial of the case the petitioner could not have had lesser charges such as manslaughter or second degree murder submitted to the jury[.]

The District Court considered the merits of the first two allegations and denied relief. Because the considered claims are interrelated and intertwined with the claim not considered, we remand to the District Court with directions to consider the competency of counsel in its entirety, looking to the cumulative effect counsel had on petitioner’s right to due process. The standard of competency set forth in McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974), and Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974), will provide guidance for this inquiry.

Closely related to the claim of ineffective counsel is the petitioner’s charge that his plea of guilty was motivated by a prior coerced confession. The District Court properly held that the disposition of this issue is controlled by McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), which directs the court to focus, as an initial matter, not on the voluntariness of the confession, but on the competency of counsel. See, Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Redus v. Swenson, 468 F.2d 606 (8th Cir. 1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1906, 36 L.Ed.2d 393 (1973). Since this claim presents the same issues raised in the petitioner’s general charge of incompetent counsel, we remand for further consideration in light of our discussion above. As stated by the Supreme Court in Tollett:

* * * If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not “within the range of competence demanded of attorneys in criminal case,” McMann v. Richardson, * * *. Counsel’s failure * * * properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof. * * *

Tollett v. Henderson, supra, 411 U.S. at 266-267, 93 S.Ct. at 1608. (Citation omitted.)

The final claims passed on by the District Court were that the state court was without jurisdiction to hear the charges brought against the petitioner, and that the petitioner was denied due process in that the state court was not a court of record. Both were denied on the ground that they are frivolous. No error appears therein.

We remand this case for further proceedings consistent with this opinion.

      . The first post conviction petition alleged that the petitioner’s plea of guilty was involuntary in that it was motivated by a prior coerced confession.

      . The second post conviction petition alleged that: 1) the petitioner was denied the effective assistance of counsel; 2) the information by which the petitioner was charged was legally inadequate; 3) the state court was without jurisdiction to hear the charges brought against the petitioner; 4) an unreasonable delay before the preliminary hearing constituted a denial of due process; 5) the petitioner was denied due process in that the state court was not a court of record; 6) the petitioner’s confession was involuntary; 7) the petitioner’s plea of guilty was involuntary in that it was motivated by the prior coerced confession; and 8) the plea of guilty was accepted by the court in violation of due process in that the court failed to inquire into the factual basis of the plea.

      . See, Lay, Problems of Federal Habeas Corpus Involving State Prisoners, 45 F.R.D. 45, 51 (1969).

      . The District Court, in requiring that the petitioner return to the state courts, relied upon LeDent v. Wolff, 460 F.2d 1001 (8th Cir. 1972). There, the petitioner raised in his federal petition for habeas corpus relief a constitutional claim not previously presented to the state courts. We held that he must first exhaust his state remedies .before coming to federal court. Unlike the case here, however, there was no indication in LeDent that the petitioner had procedurally forfeited his right to seek further relief in the state courts.

      . The constitutionality of the state’s procedural rule is not in issue. See, Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1973).

      . In discussing the state interest in the orderly adjudication of criminal cases and the federal interest embodied in the writ of habeas corpus, the Supreme Court said :
      * * * And if because of inadvertence or neglect, he runs afoul of a state procedural requirement, and thereby forfeits his state remedies, appellate and collateral, as well as direct review thereof in this Court, those consequences should be sufficient to vindicate the State’s valid interest in orderly procedure. Whatever residuum of state interest there may be under such circumstances is manifestly insuffiei-nt in the face of the federal policy, drawn from the ancient principles of the writ of habeas corpus, embodied both in the Federal Constitution and in the habeas corpus provisions of the Judicial Code, and consistently upheld by this Court, of affording an effective remedy for restraints contrary to the Constitution. * * *
      Fay v. Noia, 372 U.S. 391, 433-434, 83 S.Ct. 822, 846, 9 L.Ed.2d 837 (1963).


source: Caselaw Access Project

license: Public Domain

text:
    Theodore B. STONE et al., Appellants, v. UNITED STATES of America, Appellee.
    Nos. 74-1383 to 74-1385.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Nov. 1, 1974.
    Certiorari Denied March 17, 1975.
    See 95 S.Ct. 1405.

      Richard B. Baer, Bismarck, N. D., for appellants.
    David L. Peterson, Asst. U. S. Atty., Bismarck, N. D., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

On May 15, 1974, Theodore B. Stone, James Miller and Milo Miller were found guilty of violating 18 U.S.C. §§ 111 and 1114. They raise three issues on appeal. First, whether the trial court was without subject matter jurisdiction over the offense charged by reason of 18 U. S.C. § 1152. Second, whether a Bureau of Indian Affairs police officer is an “ * * * employee of the Indian field service of the United States” within the meaning of 18 U.S.C. § 1114. Third, whether the trial court abused its discretion by permitting a portion of the trial transcript to be read to the jury. We answer the first and third questions in the negative and the second in the affirmative and affirm the convictions.

I.

Theodore B. Stone, James Miller and Milo Miller, all Indians, assaulted Ben Benson, also an Indian, on the Fort Berthold Indian Reservation. Mr. Benson is a police officer employed by the Bureau of Indian Affairs and stationed on the reservation. The defendants argue on appeal, as they did in the court below, that the federal courts are without subject matter jurisdiction over this intra-Indian offense committed in Indian country. They arrive at this conclusion by misreading 18 U.S.C. § 1152.

The first paragraph of the section extends to Indian country the general laws of the United States that make criminal certain acts committed within the sole and exclusive jurisdiction of the United States. The section refers only to those laws where the situs of the offense is an element of the crime. The second paragraph exempts from the purview of the laws referred to in paragraph one Indians who offend the person or property of another Indian. The exemption does not encompass the laws of the United States that make actions criminal wherever committed. As stated in Head v. Hunter, 141 F.2d 449 (10th Cir. 1944):

* * * There is nothing in the legislation to indicate, or from which it can be inferred that the jurisdiction of the United States was restricted in respect to crimes which are generally applicable throughout the United States to all persons. We are cited to no Act, and find none, indicating an intention to except this appellant or his tribe from the scope of the Act creating and defining the offense. Appellant is charged with an offense against the laws of the United States which is generally applicable to all persons wherever committed '* * *.

Id. at 451; accord, Walks On Top v. United States, 372 F.2d 422 (9th Cir.), cert. denied, 389 U.S. 879, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967); Bailey v. United States, 47 F.2d 702 (9th Cir. 1931); U.S. Dep’t of the Interior, Federal Indian Law, 448 (1958); see F. P. C. v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960); Davis v. Morton, 469 F.2d 593, 597 (10th Cir. 1972). We conclude that the trial court possessed subject matter jurisdiction over the offense charged.

This holding is consistent with the federal policy recognizing the Indian Nations as qwasi-sovereign entities possessing the power to regulate their internal affairs. As stated in Iron Crow v. Oglala Sioux Tribe of Pine Ridge Res., 231 F.2d 89 (8th Cir. 1956):

* x- -x- Indian tribes * * * possess * * * inherent sovereignty excepting only where it has been specifically taken from them, either by treaty or by Congressional Act.

Id. at 94.

II.

Ben Benson, the officer assaulted, is an employee of the Bureau of Indian Affairs stationed on the Fort Bert-hold Indian Reservation. As such, he is within the class of persons protected by 18 U.S.C. §§ 111 and 1114; he is an “ * * * employee of the Indian field service of the United States.”

The term “Indian field service” refers to the BIA operations outside of Washington, D. C. It was first included in the statutes in 1936. 49 Stat. 1105. At that time, the term “The Indian Service” was regularly substituted for the official title “Bureau of Indian Affairs” when referring to the Washington, D. C., offices of the BIA. Federal Indian Law, supra at 221. Congress, when referring to the BIA offices outside of Washington, D. C., used such terms as “field operations” and “field projects.” The word “field” was the distinguishing adjective. See, 80 Cong.Rec. 1300, 1315 (1936). The statutory language expresses the intention of Congress to include within the class of persons protected the employees of the BIA stationed outside of Washington, D. C. Ben Benson is within that class.

III.

Finally, the defendants challenge the judgment of the trial judge in acceding to the request of the jury to read to it a portion of the direct testimony of Ben Benson, the sole prosecution witness. They argue that the reading was prejudicial error for it highlighted the prosecution’s case at the expense of the defense. Whether a request of this nature is to be granted or denied is within the discretion of the trial court. United States v. Pollak, 474 F.2d 828, 832 (2nd Cir. 1973); United States v. Chicarelli, 445 F.2d 1111, 1114 (3rd Cir. 1971); United States v. De Palma, 414 F.2d 394, 396 (9th Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970); Gregory v. United States, 365 F.2d 203, 206 (8th Cir. 1966), cert. denied, 385 U.S. 1029, 87 S.Ct. 759, 17 L.Ed.2d 676 (1967). We find no abuse of discretion here.

Affirmed.

      . 18 U.S.C. § 111 states :
      Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
      Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
      The relevant category of persons designated in 18 U.S.C. § 1114 is “ * * * employee of the Indian field service of the United States.”

      . 18 U.S.C. § 1152 stated :
      Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, * * * shall extend to the Indian country.
      This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively-
      18 U.S.C. § 1153 provides that the federal courts shall have exclusive jurisdiction over thirteen major crimes when committed by an Indian against the person or property of another Indian. The offense here committed is not within the statute.

      . 49 Stat. 1105 reads in relevant part:

        Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1 of the Act entitled “An Act to provide punishment for killing or assaulting Federal officers”, approved May 18, 1934 (48 Stat. 780; U.S.C., title 18, secs. 253 and 254), be and the same is hereby, amended to read as follows:
      “That whoever shall kill, as defined in sections 273 and 274 of the Criminal Code, * * * any officer or employee of the Indian field service of the United States, while engaged in the performance of his official duties, or on account of the performance of his official duties, shall be punished as provided under section 275 of the Criminal Code.”


author: McCREE, Circuit Judge.

text:
    Myrtle HALL, Administratrix of the Estate of Charles Edward Hall, Deceased, Plaintiff-Appellant, v. Honorable George WOOTEN, Judge, et al., Defendants-Appellees.
    No. 73-2078.
    United States Court of Appeals, Sixth Circuit.
    Nov. 19, 1974.

      Cline, McAfee, Adkins & Gillenwater, Carl E. McAfee, Donald E. Earls, Norton, Va., John N. Cornett, Whitesburg, Ky., for plaintiff-appellant.
    Robert C. Muncy, Hyden, Ky., Grant F. Knuckles, Pineville, Ky., James S. Wilson, Pineville, Ky., for defendantsappellees.
    Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.
   McCREE, Circuit Judge.

This appeal from the dismissal of a complaint requires us to determine whether, in Kentucky, a cause of action for deprivation of civil rights under 42 U.S.C. § 1983 survives the death of the person injured and may be brought by his legal representative. We conclude that the action does survive and reverse the judgment dismissing the case and remand for further proceedings.

This action arises from the brutal murder of Charles Edward Hall by his drunken fellow inmates while he was incarcerated in the Leslie County Jail in Kentucky on December 24, 1972. The complaint, filed by decedent’s mother as administratrix of. his estate, alleged that defendants, who in their several capacities are responsible for the supervision of the jail, wrongfully and willfully failed to maintain it in a condition of safety for its inmates, and that this breach of duty violated decedent’s civil rights. Damages of $250,000 were prayed for.

The district court granted defendant’s motions to dismiss on the ground that a cause of action based upon deprivation of personal rights under 42 U.S.C. § 1983 may be maintained only by the injured person and does not survive his death. In making this determination, the district court relied upon the language of section 1983, which makes a person who violates the Act liable to the “party injured,” and upon the cases of Madison v. Wood, 410 F.2d 564 (6th Cir. 1969), Denman v. Wertz, 372 F.2d 135 (3d Cir.), cert. denied, 389 U.S. 941, 88 S.Ct. 300, 19 L.Ed.2d 293 (1967), Nelson v. Knox, 230 F.2d 483 (6th Cir. 1956), Tyree v. Smith, 289 F.Supp. 174 (E.D. Tenn.1968), Krum v. Sheppard, 255 F.Supp. 994 (W.D.Mich.1966), aff’d, 407 F.2d 490 (6th Cir. 1967), and Mosher v. Beirne, 237 F.Supp. 684 (E.D.Mo.1964), aff'd, 357 F.2d 638 (8th Cir. 1966).

None of these cases compels the conclusion of the district court. Madison v. Wood and Krum v. Sheppard, insofar as they are relevant, hold only that a United States district court should apply the statute of limitations of the forum state in determining whether a complaint based on section 1983 has been timely filed. In Tyree v. Smith, in dismissing a complaint under section 1983, the court held that a father, not acting in his representative capacity, has no standing to sue for the deprivation of the civil rights of his child. Mosher v. Beirne, a zoning case challenging the validity of an ordinance, stands for the proposition that one may not sue for the deprivation of another’s civil rights. Denman v. Wertz, involving a child custody dispute between parents, is concerned with the nature of the claimed deprivation and has no relevance to this case. In Nelson v. Knox, where in holding that a section 1983 action based upon injury to property survives the death of its owner, we said that civil rights actions for injury to the person would not survive. The statement was clearly obiter dictum.

Although section 1983 provides for liability to “the party injured,” it does not foreclose survival of the action in behalf of the estate of the injured party. Instead, in the absence of a specific act of Congress, a United States district court, under 42 U.S.C. § 1988, may refer to the law of the state in which it sits in order to determine whether an action under section 1983 for injury to the person survives.

Section 1988 provides in relevant part:

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter . . . for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . .

In interpreting this statute, we consider its language and the construction given it by other federal courts. The language plainly grants to United States district courts the power to apply state statutes in the trial and disposition of cases within their jurisdiction when federal laws are not adapted to the protection and vindication of civil rights so long as the state law to be applied is not inconsistent with the Constitution and laws of the United States. Moreover, the majority of courts that have considered whether civil rights actions for injury to the person survive have concluded that they do by reference to the law of the forum state. E. g., Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), Perkins v. Rich, 289 F.2d 153 (8th Cir. 1961), Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972), Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966). See also, Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955), but see Landman v. Royster, 354 F.Supp. 1302 (E.D.Va.1973), where an action for injury to the person was brought against the estate of a decedent.

The United States Congress in other legislative schemes has not provided for the survival of statutory rights created, and the Supreme Court, in order to effect the purposes of the legislation, has held that the state law might be considered in fashioning federal law on the question of survival of the action. E. g., Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260 (1955), construing the Jones Act, 46 U.S.C. § 688, and cases cited in Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); cf. Morangne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

P As we have observed, 42 U.S.C. § 1988 provides that “the common law, as modified and changed by the constitutions and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to” cases where the civil rights statutes “are deficient in the provisions necessary to furnish suitable remedies” to protect the civil rights of all persons in the United States.

The Supreme Court, in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) has furnished a statement of these rights and the protection to be afforded them by section 1983. It regarded the enactment of the predecessor statute of section 1983 as the Congressional response to the message of March 23, 1871, from President Grant:

“A condition of affairs now exists in some States of the Union rendering life and property insecure .... Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States. . . .”

365 U.S. at 172-173, 81 S.Ct. at 476-477, citing Cong.Globe, 42d Cong. 1st Sess., p. 244 (Emphasis added.)

The Supreme Court also quoted from the remarks of Mr. Lowe of Kansas, who said:

“While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice.”

365 U.S. at 175, 81 S.Ct. at 477, quoting Cong.Globe, 42d Cong., 1st Sess., p. 374 (Emphasis added.)

Moreover, the Court found additional evidence of Congressional intent in the summary of the argument in favor of the proposed legislation that was given by Mr. Beatty of Ohio:

“. . . certain States have denied to persons within their jurisdictions the equal protection of the laws. The proof on this point is voluminous and unquestionable. . . . [M]en were murdered, houses were burnéd, women were outraged, men were scourged, and officers of the law shot down; and the States made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent.”

365 U.S. at 175, 81 S.Ct. at 478, quoting Cong.Globe, 42d Cong., 1st Sess., p. 428.

These statements and other evidence of legislative intent cited by the Supreme Court in Monroe v. Pape demonstrate that Congress was acutely aware that there were murders of persons in violation of civil rights and that it intended to provide redress in a civil action for damages. See especially 365 U.S. at 179, n. 23, 81 S.Ct. 473. In addition, we observe that the Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), did not question the survival of the action when it unanimously reversed a decision of this court holding that the Eleventh Amendment barred a section 1983 action brought against state officials by the legal representatives of deceased students for causing their death in violation of their civil rights. Although the question whether these actions survived the deaths of the students was not expressly considered by the Court, it could have affirmed our decision if it was clear that the action was barred for a reason different from that upon which we relied.

We find further guidance in our consideration of this case in Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), not cited by either party to this appeal, in which the Supreme Court construed section 1988. It stated that “inevitably existing federal law will not cover every issue that may arise in the context of a federal civil rights action,” and that section 1988 “is intended to complement the various acts which do create federal causes of action for the violation of federal civil rights.” Id. 702, 93 S.Ct. 1792. One example that the Court gave in which application of section 1988 might be appropriate was

the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant. Although an injured party’s personal claim was extinguished at common law upon the death of either the injured party himself or the alleged wrongdoer, see W. Prosser, Torts 888-891 (4th ed. 1971), it has been held that pursuant to § 1988 state survivorship statutes which reverse the common law rule may be used in the context of actions brought under § 1983. See, e. g., Brazier v. Cherry, 293 F.2d 401 (CA 5 1961); Pritchard v. Smith, 289 F.2d 153 (CA 8 1961).

Id. 702-703, n. 14, 93 S.Ct. 1792.

We have held that section 1988 does not create federal causes of action for violation of civil rights. Otto v. Somers, 332 F.2d 697, 699 (6th Cir. 1964), cert. denied, 379 U.S. 1002, 85 S.Ct. 723, 13 L.Ed.2d 703 (1965). And we observe that the survival of a cause of action is not the creation of an independent cause of action, like an action for wrongful death. It depends upon the prior existence of a cause of action for the deceased. Harper & James, The Law of Torts, §§ 24.1-24.3 (1956). Accordingly, following section 1988, we look to state law in fashioning federal common law since the provisions of section 1983 do not effectuate the broad remedial purpose of that Act by specifically providing for survival of actions.

We have previously held that an action for injury to property in violation of a person’s civil rights survives under federal common law in order to effectuate the purpose of section 1983. Nelson v. Knox, supra. We hold here that under federal common law, actions for personal injury also survive, and follow Brazier v. Cherry, supra, Davis v. Johnson, supra, and Perkins v. Salafia, 338 F.Supp. 1325 (D.Conn.1972), where plaintiffs’ decedents were killed by police officers in alleged violation of their civil rights, Holmes v. Silver Cross Hospital of Joliet, Illinois, supra, where plaintiff’s decedent died as the alleged result of blood transfusions administered despite the prohibitions of his religion, and Salazar v. Dowd, 256 F.Supp. 220 (D.Colo.1966), where plaintiff’s decedent died as the result of injuries sustained from his allegedly unlawful arrest and incarceration.

We adopt as federal common law, the law of Kentucky, the forum state, which provides for the survival of actions for personal injury:

No right of action for personal injury . shall cease or die with the person injuring or injured, except action for slander, libel, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury. For any other injury an action may be brought or revived by the personal representative, or against the personal representative, heir or devisee, in the same manner as causes of action founded on contract.

Ky.Rev.Stat. 411.140.

Since none of the exceptions is applicable here, we hold that the cause of action alleged in this case survived the death of the injured person and may be maintained by his legal representative.

Reversed and remanded for further proceedings consistent with this opinion.

      . 42 U.S.C. § 1983, provides :
      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.

      . Certainly, it is more consistent with the legislative purposes of section 1983 of the Civil Rights Act to hold that actions for its violation survive the death of an injured person than it is to hold that Congress intended to, but did not, enact a statute limiting the time in which the action can be brought. Nevertheless, every court that has considered this question has held that section 1983 of the Act was limited by a statute of limitations coterminous with that of the forum state. See e. g., Madison v. Wood, 410 F.2d 564 (6th Cir. 1969), and cases collected at 98 A.L.R.2d 1160, 1162 (1964).

      . Appellees cite 42 U.S.C. § 1985 in support of their contention that when Congress wanted civil rights actions to survive, it expressly stated its intention. 42 U.S.C. § 1986 provides:
      Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if th e death of any party he caused hy any such-wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued. (Emphasis added.)
      The answer to this contention is that Congress has not legislated in a consistent manner in the area of civil rights. This particular statute applies only to injury or death from neglect of a duty to prevent injury from conspiracies proscribed by section 1985. It strictly limits both the amount of recovery for wrongful death from such neglect and the period for the bringing of an action for redress. In both respects, section 1986 is in the mold of the wrongful death acts (not survival actions) enacted throughout the nation during the nineteenth century. See Harper & James, The Law of Torts § 24.1, nn. 4-7 (1956) and Supplement thereto.
      By fashioning survival provisions by reference to state law in other federally created causes of action, and by similarly fashioning periods of limitations when the Congress provided none, the Supreme Court has effectively rejected the implication appellees attribute to section 1986.


author: MULLIGAN, Circuit Judge:

text:
    John F. GANGEMI et al., Appellants, v. Salvatore SCLAFANI, etc., et al., Appellees, and Angelo J. Arculeo, Intervenor-Appellee.
    No. 384, Docket 74-2204.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 17, 1974.
    Decided Oct. 29, 1974.
    Thomas Hoffman, New York City (Joseph P. Grancio, Brooklyn, N. Y., James I. Meyerson, New York City, of counsel), for appellants.
    William P. DeWitt, New York City, (Norman Redlich, Corp. Counsel of the City of New York), for appellees.
    John A. Bonina, Brooklyn, N. Y., for intervenor-appellee.
    Before FEINBERG, MULLIGAN and DANAHER, Circuit Judges.

       Senior Circuit Judge of the District of Columbia Circuit, sitting by designation.

   MULLIGAN, Circuit Judge:

The appellants John F. Gangemi and Jennie DiCarlo filed designating petitions with the appellee Board of Elections containing a sufficient number of signatures to have their names placed on the ballot for the offices of male and female members of the Republican State Committee from the 49th Assembly District, Kings County, State of New York, for the primary election scheduled to be held on September 10, 1974. Appellants also filed designating petitions for the Republican County Committee for Kings County. Gangemi was designated as a candidate for the County Committee in 25 election districts and Mrs. DiCarlo in 3 election districts out of the 75 existing in the 49th Assembly District. Since it is undisputed that a candidate may serve as county committee person from only one election district within the Assembly District of the candidate’s residence, the candidacies here were incompatible. There was, however, no incompatibility with respect to the office of Republican State Committee person.

The Board of Elections vacated the candidacies for the County Committee for all but one election district per person in accordance with the then prevailing New York law, which prohibited a person from running for a public office for which he would be ineligible to serve because of a pending candidacy for an incompatible position. Trongone v. O’Rourke, 68 Misc.2d 6, 324 N.Y.S.2d 620 (Sup.Ct.), aff’d, 37 A.D.2d 763, 324 N.Y.S.2d 295 (1st Dep’t 1971); In re Ryan, 172 Misc. 105, 14 N.Y.S.2d 539 (Sup.Ct.), aff’d, 257 App.Div. 1068, 14 N.Y.S.2d 541 (1st Dep’t 1939). Opponents of the appellants then sought an order in the Supreme Court, Kings County, prohibiting the Board of Elections from placing the names of appellants on the ballots at all, either as candidates for county or state committee person. The court, after a hearing, sustained the action of the Board of Elections, Lutfy v. Gangemi, 78 Misc.2d 191, 358 N.Y.S.2d 652 (1974), and the Appellate Division affirmed 3—2. App.Div., 359 N.Y.S.2d 319 (2d Dep’t 1974). On appeal, the New York Court of Appeals, in a unanimous per curiam opinion, reversed, 35 N.Y.2d 179, 359 N.Y.S.2d 273, 316 N.E.2d 710 (1974), overruled the precedents upon which the Supreme Court and the majority of the Appellate Division had relied, and held:

Since this multiplicity of inconsistent candidacies has been properly recognized as injurious to the rights of the electorate, and described as fraudulent and deceptive, and because here the multiplicity of inconsistent candidacies for the County Committee was intentional, the dissenters at the Appellate Division were correct in concluding that respondents’ designating petitions should fail entirely.

35 N.Y.2d at 182, 359 N.Y.S.2d at 274, 316 N.E.2d at 711.

Thereafter, on September 3, 1974, appellants commenced an action in the United States District Court for the Eastern District of New York seeking a temporary restraining order and preliminary and permanent injunctive relief to restrain appellees from removing their names from the ballot. Appellants contended that their removal from the ballot would violate their due process and equal protection rights under the fourteenth amendment of the Constitution and would contravene section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. It was agreed that the federal issues raised below had not been raised in the state courts. Although normally appellants could have moved for reargument in the New York Court of Appeals, Hon. Jack B. Weinstein, United States District Judge, Eastern District of New York, ascertained that the court’s calendar precluded reargument before the September 10th election. On September 4th, Judge Weinstein in a 17 page decision denied the injunctive relief sought and dismissed the action. This appeal followed.

We agree with the position of the appellee Board of Elections that normally federal courts should abstain in state election cases until the state proceedings are completed. Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). However, in view of the exigencies of time and the federal questions raised, we believe that the court below properly, albeit reluctantly, addressed the issues.

We affirm substantially for the reasons given in the opinion below. The argument on appeal that a state must demonstrate that its decision to deny a person access to the ballot advances a compelling state interest by the least drastic means, Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), was considered below and properly determined. The State of New York has long since considered the practice engaged in here to constitute a sham or fraud on the electorate. Burns v. Wiltse, 303 N.Y. 319, 325-326, 102 N.E.2d 569, 572 (1951). The appellants deliberately embarked upon a suspect venture which must have misled those who signed the designating petitions into believing that the appellants intended to serve as their representatives if successful in the primary. The compelling interest of the state is apparent and the “less drastic” means proposed would only reward those who have intentionally adopted a fraudulent device.

The inapplicability of section 1973c is clear. We have involved here no “enactment” by a state or political subdivision of any election law. Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). We do have a decision of a state court which we cannot construe to constitute a standard, practice or procedure with respect to voting, Georgia v. United States, 411 U.S. 526, 532, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), but rather a change in the penalties to be. visited upon a prospective candidate who commits a fraud upon the electorate by knowingly becoming a candidate for incompatible positions. The Supreme Court has already held that the decree of a United States District Court is not within the ambit of Section 5 of the Voting Rights Act. Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971) (per curiam). We believe that the reasoning of that decision is also applicable to a decision of a state court. See 402 U.S. at 695, 91 S.Ct. 1760 (opinion of Black, J., dissenting on other grounds). See also Conner v. Board of Supervisors, 334 F.Supp. 280, 284 (N.D.Miss.1971) (per curiam).

Affirmed.


author: HAMLEY, Circuit Judge:

text:
    MOLOKAI HOMESTEADERS COOPERATIVE ASSOCIATION and Life of the Land, Plaintiffs-Appellants, v. Rogers B. MORTON, Individually and in his capacity as Secretary, United States Department of the Interior, and Sunao Kido, Individually and in his capacity as Chairman, Board of Land and Natural Resources, State of Hawaii, Defendants-Appellees, and Kaluakoi Corporation, a Hawaii corporation, Defendant-Intervenor-Appellee.
    No. 73-2934.
    United States Court of Appeals, Ninth Circuit.
    Oct. 29, 1974.

      See also, D.C., 356 F.Supp. 148.

      Philip D. Bogetto (argued), Honolulu, Hawaii, for plaintiffs-appellants.
    William C. McCorriston, Asst. U. S. Atty., Honolulu, Hawaii, and Edwin P. Watson, Deputy Atty. Gen. (argued) for defendants-appellees.
    A. Bernard Bays, Honolulu, Hawaii (argued), for defendant-intervenor-appellee.
    Before HAMLEY and DUNIWAY, Circuit Judges, and NEILL, District Judge.

       The Honorabl# Marshall A. Neill, United States District Judge for the Eastern District of Washington, sitting by designation.

   OPINION

HAMLEY, Circuit Judge:

Molokai Homesteaders Cooperative Association (Homesteaders) and Life of the Land, brought this action for injunctive relief against Rogers B. Morton, Secretary of the Department of the Interior (Department) and Sunao Kido, Chairman, Board of Land and Natural Resources, State of Hawaii (Board). Homesteaders is a voluntary organization composed of farmers living on the island of Molokai, State of Hawaii, and represents all of the farms in the area served by the Molokai Irrigation System (System). Life of the Land is a nonprofit corporation having a membership of approximately eight hundred persons concerned with the proper use and development of land, water, transportation and human resources of the State of Hawaii.

In their complaint, stated in four causes of action, plaintiffs brought into question the authority of the Board to negotiate and enter into a contract with Kaluakoi Corporation (corporation) providing for the rental and use, by the corporation, of water facilities and space within the pipelines of the System for the purpose of conveying the corporation’s well water to its proposed resort complex on the west end of the island. The company was permitted to intervene as a defendant.

District court jurisdiction was asserted under 5 U.S.C. §§ 701-706 (Administrative Procedure Act), 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361 (mandamus), 43 U.S.C. § 371 et seq. (reclamation and irrigation) and 42 U.S.C. § 4321 et seq. (National Environmental Policy Act of 1969).

The district court entered an order denying plaintiffs’ motion for a preliminary injunction. The federal defendant thereafter moved to dismiss the action or, in the alternative, for summary judgment. Plaintiffs were then permitted to file an amended complaint, stating the same four causes of action but with some additional allegations, and adding a prayer, in the alternative, for declaratory relief. The court ordered that the motion of the federal defendant, referred to above, would apply to the amended complaint. Counsel stipulated that the case could be submitted without the taking of evidence in addition to that which had already been received.

This evidence shows the following: construction of the irrigation system in question was begun in 1958 with funds provided by the Territorial Legislature of Hawaii. Upon achieving statehood and therefore eligibility for funds under the Small Reclamation Projects Act of 1956, 43 U.S.C. § 422a et seq., the state filed a loan application with the appropriate federal agency in 1961. The loan was approved and a repayment contract was entered into between the Department and the Board on June 3, 1963.

The total cost of the project was approximately nine million, nine hundred and ten thousand dollars, of which approximately four million, four hundred thousand was loaned by the federal government and the balance contributed by the State of Hawaii. Construction was completed in 1969.

The System contains the Waikolu Valley Diversion Works, tunnel, feeder mains, reservoir, and distribution works. It delivers water for irrigation to lands at Hoolehua and Mauna Loa, Molokai. The System has the capacity to carry twenty-one million gallons of water per day and was envisioned to serve approximately thirteen thousand, six hundred and fifty acres of pineapple land and four hundred acres of diversified crop land. However, the System presently serves seven thousand, seven hundred and seventy-nine acres of pineapple land and one hundred ninety-nine acres of diversified crop land, and requires only two million gallons of water per day for this purpose.

As stated above, the corporation wishes to rent space within the water facilities of the System to serve its proposed resort complex on the west end of Molokai. The plans submitted to the Hawaii Land Use Commission in 1968 depicted the development of three thousand six hundred hotel units, three thousand, four hundred and four villas and cottages, and six thousand, six hundred and five houses and townhouses in two phases by 1984, with an estimated population of thirty thousand. The area is presently undeveloped.

The water which the corporation would inject into the System would have a saline content not present in the water now being carried in the System. Plaintiffs characterize the water to be added as “highly saline.” However, the evidence indicates that the quality of the water to be added would be well within the limits recommended by the United States Public Health Service. In fact, water in the irrigation system after such a mingling of water would be of such quality that it would be suitable for use in a domestic water system.

On January 12, 1973, the Board by a majority vote of its members approved the application of the corporation for permission to rent space within the System. This had the effect of authorizing the Chairman of the Board to enter into negotiations with the corporation on a contract for such use of the System’s facilities.

In their amended complaint, plaintiffs seek to enjoin defendant from negotiating or entering into an agreement with the corporation for the described use of the pipeline and other facilities of the System:

“unless and until the Defendants, upon application to this Court, show that they have satisfactorily and adequately complied with the requirements of the above-discussed federal and state statutes and executive orders and regulations promulgated thereunder.”

In the alternative, plaintiffs ask for a judicial declaration that the application of the corporation to rent space within the pipeline and other water facilities cannot be granted because:

“the proposed use is in violation of the Reclamation Laws 43 USC § 371 et seq. and particularly 43 USC § 422a-k and further that the proposed rental of space . . . is in violation of the terms of the contract entered into between the U. S. Department of the Interior and the State of Hawaii for the benefit of the people living and farming on Hawaiian Homes land.”

After final arguments the district court entered a “Final Decision and Order,” denying a permanent injunction. The court did not specifically pass upon the alternative prayer for declaratory relief. However, the parties have apparently accepted the “Final Decision and Order” as a denial of such relief, and we therefore do likewise.

Homesteaders and Life of the Land appeal. We affirm.

Before turning to plaintiffs’ points on appeal we must consider a jurisdictional question and take note of a question as to the standing of plaintiff Life of the Land.

The corporation argues that the district court was without federal question jurisdiction under 28 U.S.C. § 1331 because plaintiffs have failed to show damages in excess of ten thousand dollars. This failure, the corporation asserts, is evidenced by the fact that the district court found no proof of irreparable damage in excess of ten thousand dollars.

In their joint complaint, plaintiffs alleged that the amount in controversy exceeds ten thousand dollars, exclusive of interests and costs. Since the plaintiffs are asserting one undifferentiated claim rather than separate demands, the jurisdictional amount required by 28 U.S.C. § 1331 is sufficiently pleaded. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939). Where, in the district court, neither defendants nor the court questions the good faith of the allegation, the jurisdictional question is determined by the allegations of the complaint. Saint Paul Mercury Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

In the district court the answers of some of the defendants contain a pro forma denial of the allegation as to jurisdictional amount. But, insofar as we can determine, neither defendants nor the the court seriously questioned the good faith of the allegation as to the jurisdictional amount. Indeed, no issue, jurisdictional or otherwise, was pursued as to the amount of monetary damages, since plaintiffs were not seeking damages.

It is true that, in resisting the prayer for injunctive relief, defendants asserted that plaintiffs did not stand to sustain irreparable damage. But plaintiffs might well suffer monetary damages far in excess of ten thousand dollars and still not be able to show irreparable damage.

Since the good faith of the jurisdiction allegation was not challenged, the district court was not called upon to question its accuracy. We hold that the court had jurisdiction under 28 U.S.C. § 1331.

The federal defendant asserts, on appeal, that Life of the Land does not meet the standing criterion established by Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

This issue was raised in the district court. However, the court declined to rule on the issue, stating that it made no material difference because Homesteaders, which asserted the same claim, unquestionably had standing. Since we are affirming the district court judgment we likewise perceive no need to determine this standing question.

On the merits, plaintiffs first argue that the Board is without authority, statutory or contractual, to approve the corporation’s application for use of space within the facilities of the System for non-irrigation purposes. The reason plaintiffs give for this view is that, under the terms of the Small Reclamation Projects Act of 1956 and the provisions of the repayment contract between the United States and the State of Hawaii, the System’s facilities may only be used to provide irrigation water.

The declared purpose and the substance of the Act belie this conclusion. The Congressionally declared purpose of the Small Reclamation Projects Act of 1956, is to encourage state and local participation in the development of projects under the federal reclamation laws and to provide for federal assistance in the development of similar projects by non-federal organizations. 43 U.S.C. § 422a. As originally enacted, and continuing beyond the time the System obtained its federal loan, this Act defined the term “project” to mean:

“(i) any complete irrigation undertaking, including incidental features thereof, or distinct unit of such an undertaking or a rehabilitation and betterment program for an existing irrigation project, authorized to be constructed pursuant to the Federal reclamation laws and (ii) any similar undertaking proposed to be constructed by an organization. . . . ” 43 U.S.C. § 422b(d).

That this definition of the term “project” was not intended to restrict such undertakings to those used exclusively for irrigation is indicated by another provision of the 1956 Act, pertaining to the functioning of the Secretary of the Interior. We refer to 43 U.S.C. § 422d(e), which lists the factors the Secretary shall take into consideration. One of these factors is “ . whether the proposed project is primarily for irrigation.” (Emphasis supplied.)

In our opinion, this means that if such an undertaking is “primarily” for irrigation, it is acceptable to have the undertaking also serve a secondary compatible purpose. The statute has been so administratively interpreted and, in fact, was so interpreted in the repayment contract between the United States and the State of Hawaii, here in question. The third preliminary recital in that contract reads:

“Whereas, the proposal of the Department (Board) is for the construction of Waikolu Valley Diversion Works, tunnel, feeder mains, reservoir, and distribution works, primarily for the purpose of delivering water for irrigation to lands within the localities known as: Hoolehua and Mauna Loa, Molokai, State of Hawaii; and . . . (Emphasis supplied.)

The background facts pertaining to the project, reviewed above, clearly indicate that even with the full use of the System’s facilities under the corporation’s plans, the facilities will nevertheless be utilized primarily for irrigation purposes.

Continuing with this same theory, lack of authority, plaintiffs next contend that under Rule XX of the rules and regulations governing the System’s operation, the Board is forbidden to enter into the proposed lease arrangement with the corporation with out first consulting with the Secretary of the Interior as to whether or not the proposed use is permitted under the applicable laws. Rule XX reads:

“These rules and regulations are subject to the provisions of the Contract dated June 3, 1963 between the State of Hawaii and the United States of America under which federal funds were made available for the construction of the Molokai Irrigation System.”

Since this point was raised for the first time in this court in plaintiffs’ reply brief, and, so far as we can determine, was not raised in the district court, we are not required to give it consideration. Nevertheless, we deal with it briefly.

It is apparent that Rule XX does not expressly require the Board to consult the Secretary concerning proposals of the kind that are before us. Nor does Rule XX add to the Board’s duties, or limit its authority, in any respect not already, required by the repayment contract. This latter document does not require approval by the Secretary of the Interior as to undertakings which do not threaten the functioning of the System’s facilities for irrigation purposes. Moreover, it is obvious that the Secretary of the Interior is aware of the proposal and perceives no threat to the operation of the System’s facilities for irrigation purposes, as evidenced by the position taken by Government counsel in this litigation.

Plaintiffs, also for the first time on appeal, argue that the Board is without state statutory authority to enter into a contract with the corporation because, under Hawaii Revised Statutes § 175-2, the only persons with whom the Board is authorized to enter into contracts, in addition to the United States and its agencies, are “domestic water users including the county of Maui.” Plaintiffs assert that the corporation is not a “domestic water user.”

This is another argument advanced for the first time in plaintiffs’ reply brief and which we are therefore not required to notice. However, we do point out that the reference to “including the county of Maui” makes it clear that the term “domestic water users” is not intended to refer exclusively to ultimate users of water for domestic purposes but also embraces distributors of water for domestic use. The corporation will be such a distributor.

Plaintiffs’ next line of argument is to the effect that 43 U.S.C. § 521 requires the Secretary of the Interior to be a party to contracts such as that which the Board and the corporation propose to enter into, covering the use of the System’s facilities to convey the corporation’s water to its planned resort complex on the west end of Molokai. Since it is not proposed that the Secretary aid in negotiating, or approve, this contract, plaintiffs argue, the Board is without authority to consummate the rental arrangement.

The purpose of the federal reclamation and irrigation laws is to reclaim arid lands in the western region of the United States through the construction and maintenance of irrigation systems, to produce power and for other incidental purposes. Cf. Henkel v. United States, 237 U.S. 43, 49, 35 S.Ct. 536, 59 L.Ed. 831 (1915); Burley Irrigation District v. Ickes, 73 U.S.App.D.C. 23, 116 F.2d 529, 530-532 (1940). The statute in question, 43 U.S.C. § 521, was enacted in 1920 as an integral part of the general federal reclamation and irrigation laws. The comprehensive scheme evidenced by these general reclamation and irrigation laws requires the involvement of the United States and its resources.

On the other hand, the Small Reclamation Projects Act, enacted in 1956, which provides the authority for the repayment contract here in question, is a separate legislative plan that allows state governments to develop their arid land resources through relatively small reclamation projects. Thus the construction of 43 U.S.C. § 521 proposed by plaintiffs would thwart the fundamental policy of local land reclamation which is the basis of the Small Reclamation Projects Act.

We agree with the district court’s determination that 43 U.S.C. § 521 does not appy to projects constructed under the 1956 Act. It is true, as the district court pointed out, that a provision of the 1956 Act, namely 43 U.S.C. § 422k, provides that provisions of the Small Reclamation Projects Act of 1956, “shall be a supplement to the Federal reclamation laws.” But this does not mean that all provisions of the general federal reclamation and irrigation laws, including 43 U.S.C. § 521, shall apply to projects sanctioned by the 1956 Act.

It is apparent to us that the requirement of 43 U.S.C. § 521 that the Secretary of the Interior be a party to contracts to supply water from any project irrigation system for purposes other than irrigation, runs counter to the provisions of the 1956 Act vesting contracting authority in a local organization, as defined in 43 U.S.C. § 422b (c), which constructs and operates a small irrigation project. 43 U.S.C. § 422d(e). In dealing with a small reclamation project, where the provisions of the general laws run at cross-purposes with those of the 1956 Act, the latter must prevail.

Moreover, even if 43 U.S.C. § 521 were held to apply to projects entered into under the 1956 Act, it would have no application in the case before us. Section 521 clearly applies only in the case of the proposed sale of surplus waters derived from a project irrigation system. The proposed contract here in issue does not involve the sale of the System’s water, surplus or otherwise. It contemplates only the transportation of the corporation’s water from its wells on the windward side of Molokai through the System’s facilities to the proposed resort complex on the west end of that island.

We therefore hold that neither contractual approval by the Secretary of the Interior nor any other federal action is required by 43 U.S.C. § 521 with respect to the rental arrangement here in question.

Plaintiff’s final line of argument is to the effect that a provision of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), and the Department of the Interior’s Bureau of Reclamation Rules, and Regulations, require that an environmental impact statement be prepared before this rental arrangement may be contractually sanctioned.

NEPA provides that all agencies of the federal government shall include in every recommendation or report on proposals for legislation “and other major Federal actions” significantly affecting the quality of the human environment, a detailed statement on the environmental impact of the proposed action. 42 U.S.C. § 4332(2)(C).

For present purposes we assume that, in entering into the repayment contract in connection with the construction of the System’s facilities, the federal government engaged in “major Federal” action. But that contract was entered into on June 3, 1963, and the project was completed in 1969, prior to the enactment of NEPA on January 1, 1970.

It might be argued that although the federal loan was obtained prior to the enactment of NEPA, the operation of the loan contract, with its continuing obligation for repayment, in effect transformed the project into one involving continuing major federal action. See Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1282-1283 (9th Cir. 1973). As a variation of this argument it might be contended that the continuing right of the Secretary of the Interior to interject himself into the affairs of the System in the event of non-compliance with the terms of the repayment contract, in effect rendered the Secretary’s decision not to participate in this particular rental negotiation, “major Federal” action. See Jicarilla Apache Tribe of Indians, supra.

We do not believe that either of these theories are tenable. Our views in this regard find support in the First Circuit’s decision in City of Boston v. Volpe, 464 F.2d 254, 258 (1st Cir. 1972). See also San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1024-1025 (9th Cir. 1973); Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 496 F.2d 1017, 1021-1024 (5th Cir. 1974). The right of the federal government to object to violations of its loan agreements, or its determination not to object, cannot realistically be classified as “Federal action,” much less “major” federal action.

The Bureau of Reclamation regulations to which plaintiffs refer are only applicable to projects completed before the effective date of the Act where there is continuing major action by the Bureau. We have already determined that the federal government is not engaged in any major action with respect to the lease arrangement here in question. San Francisco Tomorrow v. Romney, supra; City of Boston v. Volpe, supra.

Affirmed.

      . This definition of the term “project” was amended in 1971 to add, among other things, “any multiple-purpose water resource project that is authorized or is eligible for authorization under the Federal reclamation laws.” Pub.L. 92-167, § 1, 85 Stat. 488 (Nov. 24, 1971). Since the expanded definition was not in effect when the project here in question was approved for a federal loan, we do not take it into account in deciding the issue before us.

      . Presumably, the appellants read the statute and contract term “primarily” in a similar manner, for in their opening brief they admit that the System is “to produce irrigation water for the use in the agricultural production of plant eroi>s or livestock, including incidental domestic use.” (Emphasis supplied.)

      . Our construction of the term “project,” as defined in the 1956 Act, also finds support in the legislative history. House Report No. 481 on H.R. 5881, 84th Congress, Second Session, U.S.Code Cong. & Admin.News 1956, p. 4378, contains tins statement:
      “With respect to the term ‘project,’ it is the committee’s intention that the projects be for the principal purpose of irrigation with other purposes, such as flood control, municipal water and power included on an incidental basis.”
      The incidental uses referred to in this statement are not intended to be all inclusive, since they are preceded by the words “such as.” In any event, the corporation’s proposed use of the System’s facilities is essentially for domestic water supply, which is analogous to “municipal water.”
      43 U.S.C. § 422d(e) was also amended in 1971 to comport with the theory that such an undertaking may be multi-purpose in nature. Pub.L. 92-167, § 2, 85 Stat. 488 (Nov. 24, 1971).

      . Plaintiffs call attention to Rule 11(2) of the rules and regulations governing the System’s operation on Molokai. That rule provides, in part, that:
      “2. The water supplied by the Molokai Irrigation System is intended to be used only for production of crops. Water may not be used for any other purpose except with the express written consent of the Board. . . . ”
      As pointed out earlier, the Board has authorized its Chairman to enter into negotiations with the corporation concerning the rental of space within the System, and there is no reason to believe that the Board would not ratify any contract so negotiated before effectuating the agreement. In any event, in our view, the quoted rule is not applicable here, because it pertains only to proposals for the System to supply its own water for non-irrigation purposes. The rental arrangement here under consideration does not contemplate that the System will supply to the corporation any of the System’s water.

      . The doctrine of pendent jurisdiction allows us to reach this purely state law question. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

      . See H.R.Rep.No.481, 84th Cong., 2d Sess., U.S.Code Cong. and Admin.News, at 4376-4377 (1956).

      . The particular regulation upon which plaintiffs rely is Chapter 376.5.2B.

      . In City of Boston v. Volpe, the First Circuit said:
      “We do not accept the general proposition that once the federal government has participated in a development, that development is necessarily forever federal. Many projects have federal assistance at an exploratory stage and are then completed through wholly local or state funding. . . . Nor does the Port Authority’s present intention eventually to seek federal funds for yet another stretch of taxiway make the Outer Taxiway a federal project. Similarly, the adoption of certain federal standards and specifications in the hope of qualifying for federal assistance cannot transform a state or local project into a federal one.” 464 F.2d at 258.

      . Regulation 376.5.2B, which applies to actions initiated before January 1, 1970, provides, in part:
      “The provisions of this chapter apply to continuing major Bureau actions having a significant effect on the environment even though they arise from projects or programs initiated prior to the enactment of the Act.”


author: WEBSTER, Circuit Judge. GIBSON, Chief Judge

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHERN PAPER BOX COMPANY, Respondent.
    No. 74-1033.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1974.
    Decided Nov. 11, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 17, 1974.

      Jonathan Axelrod, N.L.R.B., Washington, D. C., for petitioner.
    Gaines N. Houston, Little Rock, Ark., for respondent.
    Before GIBSON, Chief Judge, WEBSTER, Circuit Judge, and WILLIAMS, District Judge.

       The Honorable Paul X Williams, United States District Judge, Western District of Arkansas, sitting by designation.

   WEBSTER, Circuit Judge.

This ease comes before the court on a renewed application for enforcement of an order of the National Labor Relations Board directing Southern Paper Box Company to bargain with the United Papermakers and Paperworkers, AFL-CIO. A certification election was held on April 9, 1971, which the union won by a vote of 83 to 72. The company filed six objections with the Board and, after an investigation by the Regional Director, the Board overruled the objections without a hearing and certified the union. The company refused to bargain on request and the Board filed a § 8(a)(5) complaint which resulted in an order to bargain. On the original petition we denied enforcement without prejudice, NLRB v. Southern Paper Box Co., 473 F.2d 208, 212 (8th Cir. 1973), because two of the six objections raised “substantial and material factual issues” necessitating a hearing.”

The two objections were (1) that “employees had been threatened with loss of jobs, property damages and physical violence unless they continued to support the Union” and (2) that a union representative told employees that the company president “had taken bonus money due the employees in 1970 and had used the money to finance a trip to Europe.” 473 F.2d at 210-211. We held that these objections required a hearing and articulated the issues as follows:

[W] e feel an adversary hearing is necessary to determine whether the threats were made, how broadly they were communicated and whether they created an atmosphere of fear and reprisal so as to render a free expression of choice impossible.
-X- * -X- -X- -X- -X-
[In regard to the bonus money] the crucial questions are whether or not the statement was made, and whether or not Southern had an opportunity to respond. It is imperative that these disputed factual issues be resolved in an adversary hearing. 473 F.2d at 211.

On remand, Administrative Law Judge Benjamin B. Lip ton conducted the required hearing, limiting the issues to those articulated by this court. He con-eluded from the evidence, based in substantial part on his credibility findings, that the company had “failed to sustain its ‘heavy burden’ of establishing that threats were made which created an atmosphere of fear and reprisal so as to affect the free choice of employees in the Board election” and that the statements made by a union representative regarding the bonus money

were not unknown to the employees, and were not so misleading, or beyond the employees’ own ability to evaluate, —as to materially affect their free choice in the election. Furthermore, the facts are that Respondent, through its supervisors, had essential knowledge of the statements in question over a substantial period preceding the election, that it did attempt to explain the bonus cut by its letter and its posting on the bulletin board, and to the extent it desired to answer the ad hominem implication against Karcher, it had ample opportunity to do so before the election. Southern Paper Box Co. and United Paperworkers International Union, No. 26-CA-4073 (NLRB, June 26, 1973), Slip Opinion at 11.

The Board adopted the findings of the Administrative Law Judge with certain exceptions and again ordered the company to bargain with the union and thereafter renewed its petition for enforcement. We have carefully reviewed the record in this close and difficult case and conclude that the Board’s findings are supported by substantial evidence in the record as a whole.

I

The company was in the practice of paying bonuses to employees each September or October based on the profits during the previous fiscal year. In 1970 the bonuses paid were only half the amount paid in 1969. In a letter accompanying the 1970 bonus the company explained without detail that its profits for the previous year did not justify a larger bonus. In June of 1970 the company’s president had taken a European cruise. The company was aware that employees were unhappy with the bonus cut. In December, 1970, and thereafter until the election the scuttlebutt among employees was that the company president had used the difference in bonus money to finance his trip to Europe. At one of the union meetings prior to the election, Way Ion Brown, an international representative of the union, made a statement in response to some audience comment about the president’s trip, “Well: that’s probably where the rest of your bonus went.” Similar statements were made by Brown to two employees in their homes. Three weeks before the election an employee told a supervisor that employees were unhappy because the president had used the bonus money to go overseas and buy new equipment. This was reported to a vice president who commented, “It’s one of those things.” The company president did not learn of this employee attitude until the day of the election, when a supervisor told him that he had heard from employees that the president’s using the bonus money to finance his European cruise was probably the reason the union won the election.

Judge Lipton found that Brown’s statements were merely a reiteration of current employee speculation by one whose source was not any more knowledgeable than any other employee spreading the rumor and that the company was aware of the rumor at least two weeks before the election. He was also of the view that the employer, even if it had responded, could have done little “to counter the employees’ real resentment relating to the fact of the bonus cut.” The Board approved Judge Lipton’s findings on this issue and concluded, “We do not find Brown’s remarks to be ‘campaign trickery’ but merely a typical response in line with then current employee speculation, to which Respondent could have addressed itself had it desired to do so.” Southern Paper Box Co., 207 NLRB No. 3, 84 LRRM 1469, 1471 (1973).

These findings are supported by substantial evidence in the record as a whole. The question remains as to whether it is reasonable to characterize Brown’s remarks as “a typical response in line with then current employee speculation” and thereby attribute no significance to them. The Board is entitled to considerable discretion in supervising elections under its jurisdiction and great deference should be accorded its views. Macy’s Missouri-Kansas Division v. NLRB, 389 F.2d 835, 842 (8th Cir. 1968); see NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). A reasonable conclusion by the Board based on the evidence will not be disturbed even though the reviewing court could justifiably reach a different conclusion. NLRB v. Saunders Leasing System, Inc., 497 F.2d 453 (8th Cir. 1974); NLRB v. Louisiana Manufacturing Co., 374 F.2d 696, 703 (8th Cir. 1967); NLRB v. Morrison Cafeteria Co., 311 F.2d 534, 536 (8th Cir. 1963). The Board did not condone Brown’s remarks but merely held that under the circumstances of this case and in light of the employer’s knowledge of the employees’ speculation the incident did not justify an order requiring a new election. This is a matter squarely within the scope of the Board’s expertise and we cannot say that the conclusion of the Board here is unreasonable.

II

The evidence of threats and of an atmosphere of fear and reprisal consists primarily of testimony of incidents in which individual employees were threatened or perceived themselves as being threatened by pro-union employees. While the evidence sustains the Board’s view that these incidents were not widely disseminated among the company’s approximately 170 employees, it is also apparent that the two-year lapse between the election and the hearing caused by the Board’s original refusal to grant a hearing in this case severely impaired the fact finder and this court in ascertaining what actually occurred during the weeks preceding the election. Much of the testimony was discredited by the Administrative Law Judge at least in part because witnesses could not remember details pertaining to the incidents about which they testified. Yet those credibility findings to the extent adopted by the Board are binding on this court, absent “extraordinary circumstances” which do not exist in this case. NLRB v. Penzel Construction Co., 449 F.2d 148, 149 (8th Cir. 1971). See also NLRB v. International Longshoremen’s & Warehousemen’s Local No. 8, 473 F.2d 15 (9th Cir. 1973); NLRB v. Red Top, Inc., 455 F.2d 721, 724-725 (8th Cir. 1972).

There was additional evidence that some employees were being pressured by pro-union employees to support the union. Particularly disturbing is an incident recounted by employee Paul Mons. Mons testified that some two weeks prior to the election he was working in the printing department when Supervisor Faker Hall came into the area. Employee Richard Harris approached Mons and said, out of Hall’s hearing, if “Hall didn’t change his mind about the union that he would burn his house down.” Mons did not tell Hall or anyone else about Harris’ statement until after the election. Judge Lipton concluded:

I find that the threat was not directed against an employee and was not within the awareness of employees other than Mons. As expressed, Harris’ statement is ambiguous as to whether he was speaking for or against the Union.
Southern Paper Box Co. and United Paperworkers International Union, No. 26-CA-4073 (NLRB, June 26, 1973), Slip Opinion at 7.

The Board rejected the conclusion that Harris’ remark was ambiguous because the record established “that Harris was a well-known union sympathizer.”

The Board concluded that notwithstanding the existence of unsavory incidents and actual threats, the evidence did not demonstrate that the election was conducted in an atmosphere of fear or reprisal which rendered a free election impossible. See Manning, Maxwell & Moore, Inc. v. NLRB, 324 F.2d 857, 858 (5th Cir. 1963). Of particular significance is the absence of evidence that the incidents complained of were known by employees other than those directly involved. Some 160 employees voted in this election, and only a handful have been identified as participants in the unfortunate occurrences which are the subject of these protracted proceedings. The election fell short of the ideal “laboratory conditions” contemplated by the National Labor Relations Act, but on this record we cannot' overturn the Board’s conclusion that the results of the election three years ago accurately reflected the free choice of the employees of this plant. The Board’s findings are supported by substantial evidence in the record as a whole, and the inferences and conclusions drawn therefrom in its Order are permissible and reasonable.

The Order of the Board directing Southern Paper Box Company to bargain with the union is hereby enforced.

GIBSON, Chief Judge

(concurring).

I concur in Part I of the majority’s opinion relating to the “bonus money” objection. I reluctantly concur in Part II of the majority’s opinion and in ordering enforcement of the Board’s order directing Southern Paper Box Company to bargain with the United Papermakers and Paperworkers, AFL-CIO. My reluctance stems not from a disagreement with the majority but is occasioned by what I view as an abdication by the Board of its responsibility to assure that the results of a representation election reflect the free choice of all employees.

The present Board rule that nonparty misconduct must create an atmosphere of general fear and reprisal before an election will be set aside seems to me, as it did to the Board at an earlier stage in its history, a dereliction of its duty to assure that all employees are able to make a free and uncoerced decision as to a bargaining representative. See G. H. Hess, Inc., 82 N.L.R.B. 463, 466 (1949) wherein an earlier Board stated:

An election serves its purpose only if it affords an opportunity for all employees to register a free and uncoerced choice of bargaining representative. Manifestly, this purpose has failed of achievement where, as here, an employee has been the object of threats of bodily harm designed to thwart the exercise of a basic right guaranteed by the Act, i. e. the right to cast a ballot foi or against a bargaining representath e. We would be derelict in our duty, indeed, if, under these circumstances, we did not safeguard this right. (Emphasis in original.)

The employer in this case has a real basis for complaint. Threats and intimidation were employed by’ known union sympathizers in an attempt to influence employees’ votes. The employer’s attempt to have a hearing upon his objections was thwarted by the Board’s refusal to hold a hearing, necessitating this court’s remand in the prior enforcement proceeding. N. L. R. B. v. Southern Paper Box Co., 473 F.2d 208 (8th Cir. 1973). The employer was then hindered by the two-year delay between the election and Board hearing and by unnecessarily restrictive rulings of the Administrative Law Judge from fully developing its evidence of the threats and general atmosphere of the plant immediately prior to the election.

The Board, instead of taking a mild view of threats and intimidating tactics falling short of creating a general atmosphere of fear and reprisal, should take a strong stand against the use of any intimidating tactics employed by either party or its adherents. While Board elections are not lightly to be set aside, neither are they inviolate. More important in the election context than the interests of the Board, employer, or union in having a conclusive result is the right of each individual employee to freely express his selection or rejection of a representative without coercion.

Yet, while my views differ from those of the present Board on these policy matters and the weight of the evidence in this particular case, I am not at liberty to substitute my judgment for that of the Board. Therefore, I concur.

      . The Board’s decision and order are reported at 193 NLRB 881, 78 LRRM 1464 (1971).

      . The Board disagreed with the Administrative Law Judge’s conclusions based on the evidence in several instances. The Board did not question any of the Judge’s credibility findings. This court is charged with reviewing the findings and conclusions of the Board, NLRB v. Hawthorn Co., 404 F.2d 1205, 1209 (8th Cir. 1969) and not those of the examiner, but we do note the points of disagreement where relevant.

      . The Board’s decision and order are reported at 207 NLRB No. 3, 84 LRRM 1469 (1973).

      . This is the Administrative Law Judge’s reconstruction of the remark since no one remembered the precise language and it was disputed whether Brown said “probably” or not. This approximation of Brown’s comment is clearly supported by substantial evidence in the record as a whole.

      . The Administrative Law Judge discredited much of employee Hazel Reed’s testimony as greatly exaggerated and implausible. She testified that two male employees talked of “blowing up” the house and car of another employee and a foreman who opposed the union. These alleged threats were made in her presence and she felt they were intended for her benefit which prompted her to carry a gun until after the election. Two other incidents were generally discredited by the Administrative Law Judg'e. Employees Alma Jean Ellis and Mae Ollie Hoover testified that one afternoon at the timeclock Richard Lawson, one of the men allegedly involved in the Reed incident, threatened Hoover with a knife. Hoover was not aware of the knife until Ellis told her about it the following morning and no reference to the union was connected with the incident. Hoover also testified that Lawson had told her on another occasion that if she did not support the union she would lose her job and he would “catch” her “away from there.” The Administrative Law Judge both discredited this testimony and held that “[ejven if made, I would not find such statements by Lawson rise to the level of actual threats . . . . ” The Board rejected the latter conclusion, but accepted the Administrative Law Judge’s credibility assessment. 84 LRRM at 1470 n. 6.

        Another incident deemed implausible by the Administrative Law Judge was Katie Williford’s testimony that employee James Keaton told her that a gas station operated by her family “could be burglarized or broken into” and that she might lose her job if she did not support the union. The threat of job loss was heard by other employees, one of whom testified to that effect, and the Administrative Law Judge generally discredited the “burglary” threat, concluding the latter would “reasonably be regarded as a vague prediction, rather than a threat that Keaton himself would carry out.” This conclusion was also rejected by the Board, but the credibility assessment was accepted. 84 LRRM at 1470 n. 8.

      . Mons testified that he told employee Hoover about the incident the same day, but this testimony was expressly rejected by Judge Taylor as contrary to Mons’ affidavit to the Board in which he stated that he “did not repeat it to Hall or anyone else before the election.”

      . However, the Board did agree that the remark was not directed at an employee, and in oral argument before this court the Board suggested that threats directed at supervisory personnel should be treated differently than threats made against employees eligible to vote. We expressly reject such a distinction. Threats are a form of intimidation. A pervasive atmosphere of intimidation taints the integrity of an election and it matters not at whom the threats are directed if the intended atmosphere is achieved. In fact, there is every reason to believe that the successful intimidation of supervisors will result in increased pressure upon employees to vote in the desired manner.