author: LIVELY, Circuit Judge.

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, GREATER CLEVELAND DISTRICT COUNCIL 78 and Local 100, American Federation of State, County and Municipal Employees, AFL-CIO, Plaintiffs-Appellees and Cross Appellants, v. CITY OF CLEVELAND and James D. Hodgson, Secretary of Labor, et al., Defendants-Appellants and Cross Appellees.
    Nos. 73-1106 to 73-1108.
    United States Court of Appeals, Sixth Circuit.
    Argued June 9, 1973.
    Decided Aug. 14, 1973.

      Stanton R. Koppel, Dept, of Justice, and Malcolm C. Douglas, Asst. Director of Law, Cleveland, Ohio for defendants-appellants.
    Harlington Wood, Jr., Asst. Atty. Gen., Frederick M. Coleman, U. S. Atty., Walter H. Fleischer, Atty., Dept, of Justice, Washington, D. C., on brief.
    Bernard A. Berkman, Cleveland, Ohio, for plaintiffs-appellees; Larry S. Gordon, Joshua J. Kancelbaum, Cleveland, Ohio, on brief.
    Before PHILLIPS, Chief Judge, and MILLER and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

This case arose out of a dispute between certain unions which represent employees of the City of Cleveland on the one hand and the Secretary of Labor and the City of Cleveland on the other over the terms of a grant made to the City under the Emergency Employment Act of 1971 (EEA). Cleveland had received two previous grants under the EEA and substantially all of these funds had been used to rehire former employees of the City who had been laid off because of the inability of the City to maintain its full force of workers during a period of severe financial stress. The grant in dispute was made on March 22, 1972 in the amount of $3,-400,000. Prior to approving this grant the Secretary of Labor had determined that under the previous two grants Cleveland had rehired the highest percentage of former employees of any program agent in the country. The Director of the Public Employment Program, who was designated by the Secretary to administer the EEA, concluded that the objectives of the Act were not being met by Cleveland. On February 4, 1972 this official wrote the City that it would be a condition of the proposed third grant that not more than fifteen per cent of the grant funds be used to rehire persons employed by the City during the six months immediately preceding the grant application date. On February 25, 1972 the City applied for the third grant with the stipulation included in the application that no more than fifteen per cent of the funds would be thus used.

Plaintiffs filed an action on March 27, 1972 seeking a declaratory judgment that the third grant to the City of Cleveland was invalid to the extent that it placed a restriction upon the amount of granted funds which might be used to hire laid-off city employees and an injunction to prevent the City from hiring employees with the grant money except in accordance with seniority rights set forth in certain collective bargaining agreements between the plaintiffs and the City and with the rules of the Cleveland Civil Service Commission. Depositions were taken of responsible officers of the Department of Labor and the City of Cleveland and in addition there were filed a stipulation of facts, several affidavits and a group of exhibits. All parties moved for summary judgment and District Judge Thomas D. Lambros filed a Memorandum Opinion and Order on October 6, 1972. The District Court declared the fifteen per cent restriction to be invalid and enjoined the City of Cleveland from hiring with regard to this restriction. The Court specifically directed that the City accord laid-off workers applying for jobs under the grant the same consideration as other applicants and prohibited it from discriminating against any applicants because of their laid-off status. However, the Court refused to grant the additional relief sought by the unions, that is, a prohibition from hiring any employees under the grant except in accordance with the seniority provisions of the collective bargaining agreements and the regulations of the Cleveland Civil Service Commission. The Court held that it had no independent jurisdiction over this cause of action and could only decide it under its pendent jurisdiction. Finding that the issues involved questions of state law and that it would not be significantly more convenient for the parties to adjudicate them in the District Court, in the exercise of its discretion, the Court declined jurisdiction. All parties have appealed from those portions of the District Court judgment which decided matters adversely to their contentions.

The Emergency Employment Act of 1971 appears at Title 42 U.S.C.' §§ 4871-4883. It was a temporary measure designed to meet a particular emergency. Following a statement of findings and declarations, the purpose of the Act was stated by Congress in the following language:

It is therefore the purpose of this chapter to provide unemployed and underemployed persons with transitional employment in. jobs providing needed public services during times of high unemployment and, wherever feasible, related training and manpower services to enable such persons to move into employment or training not supported under this chapter. 42 U. 3.C. § 4871.

The Act was to be implemented by agreements between the Secretary of Labor and eligible applicants (typically political subdivisions such as the City of Cleveland) under which financial assistance would be made available to provide transitional employment for unemployed and underemployed persons in jobs providing needed public services. Only “areas of substantial unemployment” were eligible to participate. The Act provides that applications are required before grants may be made and certain provisions are mandated in all applications. In addition to 19 specified provisions required in each application, § 4876(e) provides for—

(20) such other assurances, arrangements, and conditions, consistent with the provisions of this chapter, as the Secretary deems necessary, in accordance with such regulations as he shall prescribe.

Several provisions of 42 U.S.C. § 4881 are directly involved in this case and are set out below:

§ 4881 Special provisions — General conditions for financial assistance for programs or activities
(a) The Secretary shall not provide financial assistance for. any program or activity under this chapter unless he determines, in accordance with such regulations as he shall prescribe, that—
(1) the program (A) will result in an increase in employment opportunities over those which would otherwise be available, (B) will not result in the displacement of currently employed workers (including partial displacement such as a reduction in the hours of nonovertime work or wages or employment benefits), (C) will not impair existing contracts for services or result in the substitution of Federal for other funds in connection with work that would otherwise be performed, and (D) will not substitute public service jobs for existing federally assisted jobs;
* *X- -X- * * *
(6) the program will, to the maximum extent feasible, contribute to the occupational development or upward mobility of individual participants ;
•X' * -x- -x- -x-
Equitable basis for public service employment opportunities
(b) Consistent with the provisions of this chapter, the Secretary shall make financial assistance under this chapter available in such a manner that, to the extent practicable, public service employment opportunities will be available on an equitable basis in accordance with the purposes of this chapter among significant segments of the population of unemployed persons, giving consideration to the relative numbers of unemployed persons in each such segment.
Labor organization opportunity for commentary
(c) Where a labor organization represents employees who are engaged in similar work in the same area to that proposed to be performed under any program for which an application is being developed for submission under this chapter, such organization shall be notified and afforded a reasonable period of time in which to make comments to the applicant and to the Secretary.
* -X- * -X- -X- *
General powers of Secretary; payments; installments, advances or reimbursements, adjustments; allocation or expenditure and withholding of funds
(e) The Secretary may make such grants, contracts, or agreements, establish such procedures, policies, rules, and regulations, and make such payments, in installments and in advance or by way of reimbursement, or otherwise allocate or expend funds made available under this chapter, as he may deem necessary to carry out the provisions of this chapter, including necessary adjustments in payments on account of overpayments or underpayments. The Secretary may also withhold funds otherwise payable under this chapter in order to recover any amounts expended in the current or immediately prior fiscal year in violation of any provision of this chapter or any term or condition of assistance under this chapter.

A fair reading of the entire Act indicates that Congress intended for the Secretary of Labor to exercise rather wide discretion in administration of the program. While certain criteria are set forth in the Act, they tend to be general rather than specific.

On their appeal, the unions, which were plaintiffs below, maintain that the fifteen per cent restriction in the grant violates 42 U.S.C. § 4881(a)(1)(C) which prohibits any program under the Act which will impair “existing contracts for services . ” It is the position of these appellants that the collective bargaining agreements between them and the City of Cleveland are “contracts for services” which would be impaired by the fifteen per cent limitation. They point out that 42 U.S.C. § 4881(c) provides for commentary by labor organizations, and refer to the “fundamental Congressional policy of encouraging collective bargaining.” Primarily, however, these appellants rely upon the decision of the Supreme Court in J. I. Case Co. v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). On the other hand, the Secretary of Labor and City of Cleveland cite a number of cases for the proposition that a collective bargaining agreement is not a contract for services. They also maintain that to hold that collective bargaining agreements were intended to be protected by § 4881(a)(1)(C) would thwart the overall purpose of the Act which is stated repeatedly as being to provide transitional employment in public service jobs. The same subsection which forbids impairment of contracts for services provides for maintenance of effort by applicants in the requirement that a program not result in the substitution of federal funds for other funds in connection with work that would otherwise be performed. A reading of the two clauses of § 4881(a)(1)(C) together leads logically to the conclusion that the existing contracts for services which may not be impaired are those whose cancellation would result in the substitution of federal funds for local funding through the hiring of employees with grant money to replace work being done under contract.

In J. I. Case Co. v. NLRB, supra, the Court held that a collective bargaining agreement is a trade agreement and not a contract of employment. In NLRB v. Wooster Division of Borg-Warner Corp., 236 F.2d 898 (6th Cir. 1956), aff’d in part and rev’d in part, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), this Court held that a collective bargaining agreement controls the individual contracts of employment but is not itself a contract of employment. See also International Union, UAW v. Hoosier Cardinal Corp., 235 F.Supp. 183 (S. D.Ind.1964), aff’d 346 F.2d 242 (7th Cir. 1965), aff’d 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). The unions maintain that the decision in J. I. Case v. NLRB, supra, while classifying collective bargaining agreements as trade agreements rather than contracts of employment, has as its true thrust the holding that a collective bargaining agreement is the primary source of all of the terms and conditions of employment and that the employees are third party beneficiaries of such a trade agreement. They maintain that the language in the Act, “contracts for service” includes both individual contracts of employment and the collective bargaining agreements which provide the basic terms of those contracts. Nevertheless, Congress could have very simply and specifically included collective bargaining agreements along with contracts for services in § 4881(a)(1)(C). The failure to do so and the linkage between the provision of non-impairment of contracts for services and the maintenance of effort requirements are persuasive.

William Mirengoff, the delegate of the Secretary of Labor directly charged with administration of the Act, testified that the Labor Department construes the term “contracts for service” as referring to private placement, that is, contracts for the purchase of services, which may involve employees. He testified that in a number of programs this language has been construed in this way and it has never been defined as referring to collective bargaining agreements. In Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), it was held that courts must show great deference to the interpretation given a statute by those who are charged with its administration. The Court there held:

“The Secretary’s interpretation may not be the only one permitted by the language of the orders, but it is quite clearly a reasonable interpretation; courts must therefore respect it.” Id., at 4, 85 S.Ct., at 795.

Later in the opinion the Court quotes from Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 294 (1961), as follows:

“Particularly is this respect due when the administrative practice at stake ‘involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.’ ” 380 U.S. at 16, 85 S.Ct. at 801.

The Emergency Employment Act of 1971 was new legislation for which the Secretary had the responsibility of rapidly assembling and putting into motion a program designed to deal with a temporary situation. The legislative history of the Act, consisting primarily of a Conference Report and Joint Explanatory Statement of the Committee of Conference refers to the provision against impairing existing service contracts without in any way defining the term. We feel that the interpretation given to the language by the Secretary of Labor is reasonable and is more in accord with the purposes of the Act than the interpretation sought by the plaintiffs. The record reveals that some 2,000 former city employees had been laid off by the City of Cleveland at the time the application for the third EEA grant was pending, although it is not clear how many of these were still unemployed. Nevertheless, it is difficult to understand how the stated objective of the Act to provide employment for those groups of persons described as the special concern of Congress in 42 U.S.C. § 4871(1) through (7) would be attained if the hiring to be carried out with these funds were controlled by the seniority and recall provisions of collective bargaining agreements. It was reasonable to conclude that the preference which Congress granted these segments of the population would be thwarted by a requirement that no new hiring could take place until every laid-off employee had been called back in order of seniority. In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969), the Supreme Court stated that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong. . . .’’In the present case the compelling indications are that the construction of the statute by the Secretary of Labor was correct and in accord with the Congressional purpose in enacting the Emergency Employment Act of 1971.

The depositions revealed that the Secretary of Labor had imposed percentage restrictions on rehiring of former city employees in only two out of some nine hundred grants. Scranton, Pennsylvania had been limited to a 20 or 25 per cent recall of laid-off employees in addition to Cleveland’s limitation of fifteen per cent. However, no other program remotely approached the Cleveland record of using 95 per cent of the funds in each of the first two grants to rehire laid-off city workers. In fact, the next largest utilization of funds in this manner, after Cleveland’s 95 per cent, was fourteen per cent. It was contemplated by Congress that many localities would rehire regular employees who had been laid off, according to the Joint Explanatory Statement of the Committee on Conference. Conference Report 92-310, 1971 U.S.Code Congr. & Admin.News, pp. 1202, 1203 (92d Cong. 1971). The question presented is whether the fifteen per cent limit was an abuse of discretion when viewed in the light of the purposes of the Act and Cleveland’s past practice of using virtually all of its grant funds to put former employees back on its payroll. The witnesses for the Secretary of Labor testified that one of their concerns was that the magnitude of reemployment in Cleveland reflected a substitution of federal funds for local funding of services that would be performed in any event. It was testified that in order to insure “maintenance of effort” the grant funds should be used to create additional positions. On the other hand, the unions assert that with so many city employees laid off, using grant funds to rehire some of these employees only meant that they would perform services that otherwise would not have been performed by anyone because of a lack of local funding. This position was supported by correspondence from the mayor of Cleveland while the application was being prepared. Another concern cited by the Department of Labor witnesses was that the particular groups enumerated in the Act benefit directly from the program.

In holding that the Secretary of Labor abused his discretion when he imposed the fifteen per cent limitation on rehiring of former employees the District Court relied primarily upon Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). We agree with the District Court that the act of the Secretary imposing the limitation was reviewable under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. As the Court pointed out in Overton Park, supra, a decision of the administrator of a government department or program is entitled to a presumption of regularity, but the standards of review prescribed by 5 U. S.C. § 706 require a substantial inquiry or a “thorough, probing in-depth review” by the reviewing court. Id., at 415, 91 S.Ct. 814.

The first inquiry which the Court must make is to determine whether the administrator acted within the scope of his authority. As the Court pointed out in Overton Park the two Congressional acts under which the Secretary of Transportation made the disputed decision narrowly circumscribed his discretion. They contained a prohibition in plain terms against the very action which he approved, unless specified conditions were met. Under these circumstances, in order to uphold the administrative decision, a reviewing court would be required to find that it was reasonable for the administrator to conclude that no feasible alternatives to the proscribed actions existed, or that any alternatives would involve unique problems.

The second inquiry of the reviewing court is to determine whether the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” the standard of 5 U.S.C. § 706(2) (A). This inquiry entails a consideration of whether the relevant factors were weighed and whether there has been a “clear error of judgment.” This necessarily involves an inquiry into the facts, but the Court must not substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, supra at 416, 91 S.Ct. 814.

The third and final inquiry by the reviewing court is concerned with whether the necessary procedural requirements were observed by the agency or administrator.

Turning to the first inquiry we note a fundamental difference between the EEA and the two acts under which the Secretary of Transportation acted in the Overton Park case. There the Secretary was forbidden by Congress to approve a highway route through a park unless specific conditions were found to exist. No such limitations appear in the Act now under consideration. Rather, a reading of the entire Act leads to the conclusion that Congress granted the Secretary of Labor wide-ranging discretion in applying emergency funds to the alleviation of unemployment. The Secretary made a ruling which is unchallenged here that at least one-third of all grants be used to hire veterans of the Korean and Indochina wars. This was to achieve one of the stated purposes of the Act. The General Powers of the Secretary set forth in § 4881(e), supra, together with the clear grant of discretion with respect to conditions which he might require to be included in applications, contained in § 4876(c) (20), supra, lead us to the conclusion that the Secretary of Labor acted within the scope of his authority in imposing a limitation on the amount of grant money which would be available for the rehiring of former employees. The language of this particular Act seems to invite such discretionary rulings.

The second inquiry is more difficult. As the unions point out, the Secretary of Labor had no statistical data on the makeup of the group of former City of Cleveland employees who were not rehired under the first two grants. There is no evidence of how the various groups singled out by Congress for preferential treatment would be represented within this particular segment of unemployed persons. It had been determined, however, that persons recalled under the first two grants included a very low proportion of Vietnam veterans. It was assumed that the characteristics of those on layoff status who had not been rehired would not be significantly different. It was testified that the City had no breakdown by various characteristics mentioned in the Act of its unrecalled former employees. If the unions possessed this information it was not furnished to the City or Secretary nor put in evidence. On the basis of the information available and the stated assumption the Secretary of Labor made a judgment that some standards ought to be imposed upon the City of Cleveland so that it would comply with the provisions of the Act and regulations of the Department of Labor.

The District Court found that the fifteen per cent limitation on rehiring was an abuse of discretion in that it violated the provisions of 42 U.S.C. § 4881(b):

Equitable basis for public service employment opportunities

(b) Consistent with the provisions of this chapter, the Secretary shall make financial assistance under this chapter available in such a manner that, to the extent practicable, public service employment opportunities will be available on an equitable basis in accordance with the purposes of this chapter among significant segments of the population of unemployed persons, giving consideration to the relative numbers of unemployed persons in each such segment.

It found that the unemployed persons in the Cleveland area included a great many laid-off city employees and that it would be inequitable to disqualify them for rehiring with EEA funds. The command of § 4881(b) is for the Secretary to use funds provided by the Act to the extent practicable to provide employment opportunities on an equitable basis in accordance with the purposes -of the Act. Undeniably, one of the most important purposes of the Act was to provide reemployment for returning servicemen. Each application was required to contain this provision:

(4) assurances that special consideration in filling public service jobs will be given to unemployed or underemployed persons who served in the Armed Forces in Indochina or Korea on or after August 5, 1964 in accordance with criteria established by the Secretary (and who have received other than dishonorable discharges); and that the applicant shall (A) make a special effort to acquaint such individuals with the program, and (B) coordinate efforts on behalf of such persons with those authorized by chapter 41 of Title 38 (relating to Job Counseling and Employment Services for Veterans) or carried out by other public or private organizations or agencies; 42U.S.C. § 4876(c)(4).

Yet, the Secretary of Labor had determined that Cleveland had done a very poor job of hiring veterans with the first two grants and concluded that the reason for this poor performance was that Vietnam veterans did not constitute a significant segment of the Iaid-off employees of the City. By limiting the number of such former employees who could be hired under the third grant, increased opportunity would be provided for hiring veterans.

Another purpose of the Act which was emphasized by Congress was that any program financed under it must cause an increase in employment opportunities over those otherwise available and that new jobs not be substituted for existing ones. § 4881(a)(1). Again, the review of Cleveland’s use of the first two grants, revealing as it did that virtually all of the money had been used to rehire former employees, convinced the Secretary of Labor that the required increase in employment opportunities had not taken place and the “maintenance of effort” requirements of the Act were not being met. He concluded that a limitation on rehiring former employees would serve to bring the Cleveland program within these qualifying provisions as well.

In view of the factual demonstration that the previous use of EEA grants by the City had not produced the results intended by Congress, the Secretary was authorized by § 4876(c) (20) to require such conditions as he might deem necessary for approval of the February 25 application. We do not find the fifteen per cent limitation, under the circumstances revealed in this record, to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (A).' The decision of the Secretary was based on a consideration of the relevant factors and did not constitute a clear error of judgment. To suggest that other methods might have been better employed to achieve the results sought by the limitation is to substitute the judgment of the reviewing court for that of the administrator of the Act. This is not permitted. Citizens to Preserve Overton Park v. Volpe, supra at 416, 91 S.Ct. 814.

The third inquiry required of a reviewing court concerns procedural aspects of the administrative decision. Unlike Overton Park, where only affidavits were before the Court, the District Court had for consideration in the present case the 120-page deposition of William Mirengoff, the official charged with administration of the Act, the 112-page deposition of his deputy and the 50-page deposition of the director of personnel of the City of Cleveland. While affidavits which are prepared for a trial may be characterized as “post hoc rationalizations,” certainly this is not true of evidence which is procured by adversary examination. There is no indication that the Secretary failed to consider any relevant facts which were available or that the District Court was deprived of the full administrative record upon which the disputed decision was made. There is no requirement that the Secretary make formal findings. The depositions disclosed the facts revealed by review of the earlier grants to the City of Cleveland, the concern prompted by these findings that the purposes of the Act were not being achieved and the reasoning which led to imposition of the fifteen per cent limitation as a remedy.

In American Power & Light Co. v. SEC, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946), it was held that the determination of the proper remedy is “peculiarly a matter for administrative competence” where the choice of means of achieving a statutory policy is given to an administrative body. Id., at 112, 67 S.Ct. at 146. The only determination required of a reviewing court where the choice of remedy is entrusted to an administrator is whether, under the pertinent statute and relevant facts, “an allowable judgment” has been made in the choice of the remedy. Butz v. Glover Livestock Commission Co., 411 U.S. 182, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973). We believe the record discloses a “rational basis” for the Secretary’s decision to limit the use of funds under the grant in question as a means of assuring that the grants to the City of Cleveland would further the purposes of the Act. Udall v. Washington, Virginia and Maryland Coach Co., 130 U.S. App.D.C. 171, 398 F.2d 765, 769 (D.C. Cir. 1968), cert, denied, 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969).

We have also been asked to overturn the decision of the District Court declining to adjudicate the claim of the plaintiffs for an injunction against the City of Cleveland. This relief was sought on the basis of collective bargaining agreements between the unions and the City and the regulations of the Cleveland Civil Service Commission. No relief was sought on this claim against the federal defendants and the state law of Ohio would necessarily be controlling. Under these circumstances there was clearly no abuse of discretion in the District Court’s declining to exercise its pendent jurisdiction to decide these non-federal questions. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

Nos. 73-1106 and 73-1108 are reversed and remanded for entry of judgment for defendants-appellants consistent with this opinion. No. 73-1107 is affirmed.

      . § 4871. Congressional statement of findings md purposes

      The Congress finds and declares that—
      (1) times of high unemployment severely limit the work opportunities available to the general population, especially low-income persons and migrants, person of limited English-speaking ability, and others from socioeconomic backgrounds generally associated with substantial unemployment and underemployment;

      (2) expanded work opportunities fail, in times of high unemployment, to keep pace with the increased number of persons in the labor force, including the many young persons who are entering the labor force, persons who have recently been separated from military service, and older persons who desire to reraain in, enter, or reenter the labor force;
      (3) in times of high unemployment, many low-income persons are unable to secure or retain employment, making it especially difficult to become self-supporting and thus increasing the number of welfare recipients ;
      (4) many of the persons who have become unemployed or underemployed as a result of technological changes or as a result of shifts in the pattern of Federal expenditures, as in the defense, aerospace, and construction industries, could usefully be employed in providing needed public services;
      (5) it is appropriate during times of high unemployment to fill unmet needs for public services in such fields as environmental quality, health care, housing and neighborhood improvements, recreation, education, public safety, maintenance of streets, parks, and other public facilities, rural development, transportation, beautification, conservation, crime prevention and control, prison rehabilitation, and other fields of human betterment and public improvement;
      (6) programs providing transitional employment in jobs providing needed public services and related training and manpower services can be a useful component of the Nation’s manpower policies in dealing with problems of high unemployment and dependency upon welfare assistance, and providing .affected individuals with opportunities to develop skills and abilities to enable them to move into other public or private employment and other opportunities ; and
      (7) providing resources for transitional public service employment and related training and manpower services during an economic slowdown can help as an economic stabilizer both to ease the impact of unemployment for the affected individuals and to reduce the pressures which tend to generate further unemployment. (Emphasis added).

      . The acts are similar in this respect. One of them, 49 U.S.C. § 41653 provides, in part:

        Maintenance and enhancement of natural beauty of land traversed by transportation lines

      (f) It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    POLAROID CORPORATION, Plaintiff-Appellee, v. SCHUSTER’S EXPRESS, INC., Defendant-Appellant.
    No. 73-1195.
    United States Court of Appeals, First Circuit.
    Submitted on briefs Aug. 2,1973.
    Decided Sept. 17,1973.
    Charles E. Holly and Weston, Patrick, Willard & Redding, Boston, Mass., on brief for appellant.
    Edwin R. Trafton, and Robert T. Oken, Boston, Mass., on brief for appel-lee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Polaroid Corporation has brought this action against Schuster’s Express, Inc., a common carrier, under the provisions of the Interstate Commerce Act, 49 U.S. C. § 20(11) claiming damages arising from the hijacking of a shipment of' photographic equipment entrusted to the defendant at Needham Heights, Massachusetts, on October 6, 1969, for delivery to a Polaroid warehouse at Paramus, New Jersey on October 7, 1969. Defendant appeals the granting of summary judgment on the issue of damages and the trial court’s finding that Polaroid Corporation was entitled to its dealer price, rather than merely its cost of manufacturing the lost equipment. For the reasons stated below, we affirm.

Consideration of the summary judgment issue requires a somewhat detailed description of the controversy’s procedural development. Plaintiff filed a claim for damages, totaling $134,490.95; this figure represents the dealer price, in case quantity, uniformly charged to all dealers purchasing from Polaroid. Following the defendant’s response to plaintiff’s request for admissions, plaintiff moved for summary judgment on the question of liability, pursuant to F. R.Civ.P. 56, and requested the court to ascertain what material facts on the damage issue were controverted and to order a hearing for assessment of damages. The court, faced with the defendant’s admitted liability for “full actual cost”, found the only disputed issue to be the measure of damages.

Plaintiff supported its claim for $134,490.95 by seven evidentiary affidavits, sworn to by its Group Controller for Operations. They itemized the dealer price value of each item for the month in which the goods were hijacked and divided the total price into cost and profit components. Defendant’s reply brief contended that plaintiff was not entitled to the dealer price and questioned the accuracy of the cost component figure. It did not claim that the dealer prices were inaccurate nor that they did not represent the market value of the hijacked goods at destination. Upon the court’s request, Polaroid supplied two additional affidavits respecting costs saved by the non-delivery and the facts supporting the assumption that all the items in the stolen shipment would have been sold within a relatively short period.

The defendant in no way contested these affidavits, either by introducing conflicting evidentiary affidavits as required by Rule 56(e) or by form of affidavit, pursuant to Rule 56(f), explaining why facts necessary to justify its opposition to summary judgment could not be supplied. Neither did defendant take advantage of discovery procedures to ascertain information solely within the knowledge of plaintiff nor did defendant request a continuance for discovery techniques.

Supported by plaintiff’s affidavits the court found that the goods were in great demand, nothing remaining “but to unload the goods at the distribution center and to stock and take orders for them.” Since the manufacturer had earned its profit prior to the theft, the court awarded damages in the amount of $133,989.30, deducting the uncontested cost savings from the uncontested dealer price.

Defendant’s assertion that the trial court erred in not allowing the damages to be computed by a jury is without merit. If costs and not market value were the measure, the defendant might well have been entitled to a jury trial. However, the validity of dealer prices as a measure of damages is clearly a question of law for the court to decide.

DeCato v. Travellers Life Insurance Co., 379 F.2d 796 (1st Cir. 1967), upon which the defendant relies, rejected summary judgment in a dispute over the accuracy of figures based upon destroyed records, a fact pattern quite distinct from the instant case. Indeed, that case noted: “Just because a party chooses to litigate does not necessarily mean that there is a dispute as to damages.” DeCato, supra, 379 F.2d at 799.

Defendant contends that it was not obliged to refute plaintiff’s detailed proof of the immediate sales value of the hijacked equipment, relying upon Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), a § 1983 conspiracy case in which the Court reversed summary judgment even though the opposing party had not come forward with independent evidence. However, the Court based its holding upon the fact that the moving party had failed to carry its burden of showing the absence of any genuine issue of fact; once this initial burden is met the Court stated quite specifically that to avoid conceding facts alleged by the moving party, the opposing party would have to come forward with an affidavit either under Rule 56(e) or (f). Adickes, supra, 398 U.S. at 159-160, 90 S.Ct. 1598.

The Advisory Committee Note of 1963 on subdivision (e) clarifies this point:

“Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (f) that he cannot at the time present facts essential to justify his opposition.” 6 Moore’s Federal Practice u 56.01 [14], at 2022.

Unlike the situation in Adickes, Polaroid’s affidavits did establish the absence of a genuine issue, thereby bringing Rule 56(e) into play.

As to the proper measure of damages, courts have generally held that “full actual loss” under 49 U.S.C. § 20(11) is equivalent to market value at destination. See Chicago, M. & St. P. R. v. McCaull-Dinsmore Co., 253 U.S. 97, 40 S.Ct. 504, 64 L.Ed. 801 (1920) and Gore Products v. Texas & N. O. R., 34 So.2d 418 (La.App.1948). There is some authority for limiting recovery to replacement cost where a manufacturer ships substituted goods to his buyer. Meletio Sea Food Co. v. Gordons’ Transports, 191 S.W.2d 983 (Mo.App.1946). However, mere replacement costs deprive a manufacturer of expected profit which he is on the verge of earning and do not compensate him for what he “would have had if the contract [of delivery] had been performed . . .”, the test enunciated by the Supreme Court. McCaull-Dinsmore, supra, 253 U.S. at 100, 40 S.Ct. at 505.

The Meletio exception, in any case, is not relevant to the Polaroid situation. Hijacked goods, unlike those destroyed, ultimately compete with the manufacturer and, therefore, no true replacement is possible. Moreover, Polaroid is the sole manufacturer of the types of products lost; all the purchasers of the hijacked goods would have had to purchase them from Polaroid.

The special circumstances of Illinois Central R. v. Crail, 281 U.S. 57, 50 S.Ct. 180, 74 L.Ed. 699 (1930), in which the court limited recovery to replacement costs, is also inapplicable. In that case, the shipper was merely a distributor adding nothing to the value of the coal he purchased for resale; no sales were lost by the shortage and no coal was purchased to replace that lost. In addition, the shipper claimed his retail price which included costs not incurred, such as the cost of delivery to consumers. If the entire shipment had been lost or the coal repurchased to carry on business, the usual rule would have been applied. Crail, supra, 281 U.S. at 64, 50 S.Ct. 180.

The fact that the plaintiff was transporting goods to its own warehouse and not to a buyer does not change the measure of damages. The affidavits established a more than reasonable likelihood that the hijacked goods would have been sold at the claimed market price. See Tri-State Produce Co. v. Chicago, B. & Q. R., 104 F.Supp. 452 (N.D.Iowa 1952). Only speculative profits, not profits per se, are denied.

In Baltimore & O. C. Terminal R. v. Becker Milling Mach. Co., 272 F. 933 (7th Cir. 1921), popular milling machinery was lost en route to the plaintiff’s warehouse. The court rejected the contention that manufacturer’s cost would be adequate compensation and allowed the shipper to recover the selling price minus sales commissions.

“If the manufacturer should be restricted to his actual manufacturing costs, it would be possible for him to spend thousands of dollars manufacturing an article, thousands to sell it for a profit and then lose the entire investment as a result of carrier’s negligence in failing to perform the service it had agreed to perform under its bill of lading contract. ... No patron expects the carrier to give such service purely on a cost basis and, likewise, carriers cannot expect manufacturers to operate their equipment solely for the benefit of the carrier . . . . ” J. Miller, Law of Freight Loss and Damage Claims (3rd ed. 1967).

The correct measure of damages, on the facts of this ease, for loss of manufactured goods which are in great demand shipped by a manufacturer to his warehouse is the wholesale selling price less any cost savings.

Judgment affirmed.

      . 49 U.S.C. § 20(11) : “Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one state . . . to a point in another State . shall be liable . . . for the full actual loss, damage or injury to such property caused by it . . . .”


author: WILLIAM E. MILLER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Derl GRAY, Defendant-Appellant.
    No. 73-1168.
    United States Court of Appeals, Sixth Circuit.
    Argued June 12, 1973.
    Decided Aug. 7, 1973.

      James A. Shuffett, Shuffett, Kenton, Anderson & Curry, Lexington, Ky., for defendant-appellant.
    Eldon L. Webb, Lexington, Ky., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.
    Before McCREE and MILLER, Circuit Judges, and NEESE, District Judge.

       The Honorable Charles G. Neese, United States District Judge for the Eastern District of Tennessee, sitting by designation.

   WILLIAM E. MILLER, Circuit Judge.

The defendant, Deri Gray, appeals his convictions under a two count indictment charging violations of the federal firearms laws, 18 U.S.C. §§ 922(h)(1) and 922(j). Gray was found guilty under both counts by a jury and subsequently sentenced to concurrent three year terms of imprisonment.

The events preceding the defendant’s federal convictions began with the actions of state law enforcment officers. In July 1972, Kentucky State Trooper, John R. Miller, received information that the defendant, the operator of a small grocery store in rural Fayette County, Kentucky, was selling beer without a license. In response to this information, Trooper Miller requested Trooper Brodt to attempt to set up a sale. Accordingly, on Sunday, July 16, 1972, Trooper Brodt, in plain clothes, went to the defendant’s store and purchased five cans of beer. He then left the store to procure a search warrant and a warrant for Gray’s arrest. After obtaining the two warrants, Troopers Miller and Brodt returned to the defendant’s store to arrest Gray and execute the search warrant which directed the seizure of “any intoxicating liquors, apparatus for manufacturing intoxicating liquors or materials used in the manufacture of intoxicating liquors.”

The defendant was immediately arrested in the store area of the building and the property was searched. After locating and seizing a small quantity of beer in a cooler in the store, Trooper Brodt then proceeded to the upper level of the building to search while Trooper Miller remained on the lower level with the defendant. No alcoholic beverages were found in the upper residence area, but while Trooper Brodt was conducting his search he noticed two rifles leaning against the wall in an upstairs clothes closet. The officer removed the rifles from the closet and took them downstairs to the store area of the building where he copied down the serial numbers of the weapons. Trooper Brodt then returned the weapons to the upstairs closet. After searching the outbuilding and the motor vehicles on the property and seizing several cases of beer the officers departed with the defendant.

The officers then ran the serial numbers obtained from the rifles through the computer of the National Crime Information Center and learned for the first time that the firearms had been stolen in Tennessee on June 11, 1972. Trooper Brodt then filed affidavits to obtain a search warrant for the seizure of the rifles and a warrant for Gray’s arrest for knowingly receiving stolen property. On the evening of the same day the two officers returned to the defendant’s store to execute the second search warrant and to arrest Gray. The defendant was arrested but the officers were unable to locate the rifles until the officers indicated that unless Gray turned over the rifles they were going to arrest his common law wife. Gray then took the officers to two locations and retrieved the rifles.

The defendant raises several issues on this appeal but upon oral argument of this case the question arose as to the propriety and effect of Trooper Brodt’s actions in removing the rifles from the closet, examining them, and copying down the serial numbers pursuant to a warrant directing the seizure of alcoholic beverages. This question has now been briefed by the parties and because we decide the case on the basis of this issue, we deem it unnecessary to discuss others.

The starting point of our analysis is the fourth amendment of the Federal Constitution which commands that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

We are concerned in this case with a search carried out pursuant to a search warrant and it is in that context that we examine the plain view doctrine which under certain circumstances allows the police to seize objects not specified in the warrant.

The fourth amendment requires that warrants particularly describe the things to be seized. The specificity of description requirement furthers the goal of privacy which the fourth amendment was designed to protect by insuring that even when a search is carried out pursuant to a warrant, the search is limited in scope so as not to be general or exploratory. As the Supreme Court stated in Marrón v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927):

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.

This statement from Marrón fails, however, to recognize the plain view doctrine which is now well established in the law of search and seizure. See Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L.Ed.2d 1067 (1968) ; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). The doctrine was fully explained by Mr. Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As there stated:

What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused— and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them-, the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 403 U.S. at 466, 91 S.Ct. at 2038 [Emphasis added].

When the facts of this case are analyzed under the plain view doctrine, the seizure of the rifles by Trooper Brodt cannot be justified. The first prong of the doctrine requires that “the police officer . . . had a prior justification for an intrusion.” This requirement was met in the present case since the officers were acting pursuant to a legitimate search warrant directing the seizure of alcoholic beverages upon the defendant’s property. The second prong of the doctrine requires that during the search the officers “came inadvertently across a piece of evidence incriminating the accused.” Further, “the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them.” Here, Officer Brodt inadvert-netly discovered the rifles in the upstairs clothes closet while searching for alcoholic beverages but it was not “immediately apparent” that the rifles were “evidence incriminating the accused.” The rifles were not contraband; there was no nexus between the rifles and the crimes of selling or possessing intoxicating liquor without a license; nor did the officers at that time have any knowledge that the rifles were evidence of any other crimes. It was only after Trooper Brodt had seized the weapons, copied down the serial numbers, left the defendant’s premises, and then run the information taken off the rifles through the National Crime Information Center that he learned that they were stolen and hence incriminating. This can hardly be characterized as being “immediately apparent.” To allow the police to seize objects, unincriminating at the time of seizure, would not in our view comport with the plain view doctrine.

In the context of a search pursuant to a warrant, the doctrine is a recognition of the fact that when the police come across immediately recognizable incriminating evidence not named in the warrant they should not be required to close their eyes to it, regardless of whether it is evidence of the crime they are investigating or evidence of some other crime. The doctrine is also a recognition of the fact that it would be a needless inconvenience to require the police to obtain another warrant. However, it must be “immediately apparent” to the police that the object is in fact incriminating or the seizure of the object would be without probable cause and would turn the search into a general or exploratory one. As stated by Mr. Justice Stewart in Coolidge v. New Hampshire, supra, at 466, 91 S.Ct. 2038: “the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” This is precisely what occurred in this case since the rifles obviously were not receptacles of alcoholic beverages nor were they contraband and the officers’ original observation of the weapons was nothing more than a general rummaging. Since the rifles were not incriminating evidence at the time Trooper Brodt removed them from the closet and copied down the serial numbers, this police action cannot be sanctioned under the plain view doctrine. See Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (Stewart, J., concurring opinion).

The government argues that Trooper Brodt’s actions were not a search or a seizure. Whether or not the officer’s actions constituted a technical search, they clearly were a seizure. Officer Brodt, to be sure, could not help noticing the rifles in the closet as he had every right to do. But he did not simply see or observe the presence of the rifles (which as we have indicated were not contraband nor recognized by the officer to be such). Instead he removed .them from the closet, carried them to the lower floor of the building and then copied down the serial numbers. The fact that he did not take the rifles with him after conducting the search does not make his actions any less a seizure. Removing the rifles from the closet was a seizure as was the copying down of the serial numbers. See United States v. Sokolow, 450 F.2d 324 (5th Cir. 1971). Since seizures, like searches, cannot be undertaken by the police without probable cause, whether with or without a warrant, Trooper Brodt’s actions were performed without the sanction of this constitutionally mandated requirement. Therefore, the rifles should have been suppressed since the second warrant was impermissively tainted by Officer Brodt’s initial seizure of the weapons. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Reversed and remanded for proceedings not inconsistent with this opinion.

      . The defendant leased a two-story combination store and dwelling house. The lower level was used by Gray for commercial purposes and the second story was the defendant’s residence.

      . Upon returning the rifles to the closet, Trooper Brodt discovered a shotgun, which subsequently was determined to be stolen. This weapon, however, is not involved in this appeal.

      . Following the defendant’s arrest he was immediately released on bail.

      . The time lapse between the taking of the serial numbers from the rifles during the first search and receiving the information from the National Firearms Center that the weapons were stolen was approximately three hours.

      . The defendant’s testimony at the suppression hearing in district court indicates that the officers did not conduct a second search but- rather demanded that Gray give them the weapons. The return on the search warrant signed by Trooper Brodt, however, states “Did not find guns in search.” No testimony by the officers on this point appears in the record.

      . It appears that a judge of the Fayette County quarterly court held the warrants to be invalid with respect to the seizure of the beer and weapons. The reason for this ruling does not appear from the record. In any event, in view of the broad language in Elkins v. United States, 364 U.S. 206, 223-224, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) we feel bound to make an independent inquiry, applying federal law on the fourth amendment question.

      . The Court is cognizant of the fact that Part II C of Mr. Justice Stewart’s opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) was only concurred in by three other justices. This Court has, however, explicitly accepted the full reasoning of Mr. Justice Stewart’s opinion concerning the plain view doctrine in Lewis v. Cardwell, 476 F.2d 467 (6th Cir. 1973) and Cook v. Johnson, 459 F.2d 473 (6th Cir. 1972). We have also implicitly accepted that reasoning in United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973).

      . In United States v. Sokolow, 450 F.2d 324, 326 (5th Oir. 1971) a police officer entered the defendant’s garage and copied down the serial numbers of air conditioners stacked there. The court characterized the police actions as “Seizures of the serial numbers.”

      . Since the defendant turned the rifles over to the officers only after the officers threatened to arrest the defendant’s wife, no plausible argument can be made that Gray “voluntarily” gave the officers the weapons.


author: SPRECHER, Circuit Judge. SWYGERT, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raymond ADAMS, Defendant-Appellant.
    No. 72-1313.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 16, 1973.
    Decided May 11, 1973.
    Lewis C. Laderer, Jr., South Bend, Ind., for appellant.
    William C. Lee, U. S. Atty., Fort Wayne, Ind., Timothy P. McCarthy, Asst. U. S. Atty., South Bend, Ind., for appellee.
    Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   SPRECHER, Circuit Judge.

This appeal raises the troublesome problem of a warrantless automobile search. Defendant Raymond Adams was convicted of possession of a sawed-off shotgun which was not registered to him in violation of 26 U.S.C. § 5861(d). He was placed on probation for two years.

I.

On March 30, 1971, while a racial riot was in progress at Washington High School in South Bend, Indiana, an employee of a gasoline station about three blocks from the school observed three black males approaching a yellow automobile. One of them appeared to be carrying a long shoulder-type weapon, the barrel of which protruded about 12 inches from underneath his jacket. Shortly thereafter the employee, while delivering an automobile to a customer, saw a police officer on the street and told him that he had seen three males who appeared to be armed approaching a yellow automobile.

About that time a South Bend police officer on patrol duty in a marked police car in the area around Washington High School received a radio message to be on the lookout for a yellow car with three male black subjects in it, possibly armed. The officer responded to the call by driving toward the location given in the message of the 4400 block of Western Avenue. As he traveled on Western Avenue, a yellow car with three black males passed him. He made a U-turn and followed them. The two passengers turned around and looked at him, at which time he turned on his red light and siren for three short bursts.

The yellow car did not stop immediately but instead the two passengers bent over as if picking up something or doing something on the bottom of the car. The car stopped after the third siren blast. By that time other police units came on the scene. The three occupants stepped out of the yellow car. As the officer approached the car he observed a bolt-action shotgun on the back seat with the bolt pulled back and one shell locked in the bolt. He further observed a Western style revolver lying on the floor on the driver’s side. On the passenger’s side of the front seat, he observed what first appeared to be a pipe protruding from underneath the front seat. When he pulled this object out he discovered that it was a twelve-gauge sawed-off shotgun.

The above facts were adduced at a hearing on the defendant’s motion to suppress evidence. Defendant also testified at the hearing. He said that when the first officer saw the weapons in the car, he said, “They’ve got guns” and then “everybody went . . . drawing (their weapons) and body-slapping people against the car and putting handcuffs on.” The district court denied defendant’s motion to suppress.

II.

Defendant first argued that the officer’s actions in turning on his red light and siren and stopping the car was an arrest, that there was no probable cause to arrest defendant, that consequently the search of the defendant and vehicle was not incident to a valid arrest, and that the court erred in denying the motion to suppress.

Defendant argued that “there is nothing unlawful about a male negro carrying a rifle.” A different situation may exist, however, when a male or female, black or white, is carrying a rifle within a few blocks where a racial disturbance is in progress at a high school. The district court found that there was sufficient probable cause for the arrest and search “under the conditions existing at the time of this disturbance in the vicinity.” He added:

“I think the officers would be derelict in their duty if under all the circumstances there at the time and place, the situation then existing, they had done any less.”

At the suppression hearing, the gasoline station employee referred to “the riot that was happening at Washington High School at this time.” When he first observed defendant with the gun he was about three blocks from the high school. The arresting officer testified at the suppression hearing that he was on patrol duty in the area around Washington High School where “[w]e had a disturbance with the students at the school at that time.” He stopped and eventually arrested defendant while he was still within blocks of the high school.

At the trial, the gasoline attendant referred to “the racial riots at Washington High School,” whereupon defendant’s counsel moved to strike that comment. The trial court said:

“I do not believe that this Motion should be granted because the situation then existing was a part of the background against which the Police were there and acting, but I should say to you, too, that insofar as the Court knows, there is no evidence here in any way tying this defendant with anything that was going on around Washington High School. So all of these facts may be just purely coinci-dential; that I do not know, but I do want to say that there’s nothing suggested here that ties him in here with what was going on at Washington High School, but I cannot erase from the record the fact that it was that day.”

Also at the trial, the arresting officer testified that he was on patrol duty in the vicinity of the high school. Another officer at the scene of the arrest testified that “I was in the vicinity of Washington High School along with many other officers as we had some trouble with the students.” The disturbance or trouble or riot at the high school was within the personal knowledge of the arresting officers as well as of the informant.

The time and place setting of a search is not wholly irrelevant to its validity as defendant would lead us to believe.

In The Appollon, 22 U.S. (9 Wheat.) 159, 164-165, 6 L.Ed. 111 (1824), Mr. Justice Story, commenting upon the existence of probable cause for the seizure of a French vessel, said:

“It has been very justly observed at the bar, that the court is bound to take notice of public facts and geographical positions; and that this remote part of the country has been infested, at different periods, by smugglers, is a matter of general notoriety if

The Supreme Court found probable cause for the warrantless search of an automobile primarily on the ground that “Grand Rapids is about 152 miles from Detroit and that Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the most active centers for introducing illegally into this country spiritous liquors for distribution into the interior.” Carroll v. United States, 267 U.S. 132, 160, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925). Recently, the Court said in Adams v. Williams, 407 U.S. 143, 147-148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972):

“While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a ear in a high-crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety.” (Emphasis supplied.)

In other words, we commence our consideration of the validity of the search with the underlying fact that it took place at the time of and within a few blocks of a racial disturbance in progress at a high school. The threshold of probable cause was lowered by this permeating factor. None of the many cases relied on by the defendant involved a similar circumstance.

Next, we are faced with the fact of a moving automobile. In Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S. Ct. 2022, 2034-2035, 29 L.Ed.2d 564 (1971), the Court said:

“The underlying rationale of Carroll and of all the cases that have followed it is that there is
‘a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ 267 U.S., at 153, [45 S.Ct. at 285]. (Emphasis supplied.)
“As we said in Chambers, [Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419] . . . ‘exigent circumstances’ justify the war-rantless search of ‘an automobile stopped on the highway,’ where there is probable cause, because the car is ‘movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ ‘[T]he opportunity to search is fleeting . . .’ (Emphasis supplied.)”

Next, the informant’s facts here were not based on “suspicion, belief or mere conclusion,” Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), nor upon “a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation,” Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 27 L.Ed.2d 637 (1969), but upon the informer’s “direct observation and personal knowledge.” United States v. Squella-Avendano, 447 F.2d 575, 581 (5th Cir.), cert, denied, 404 U.S. 985, 90 S.Ct. 450, 30 L.Ed.2d 369 (1971).

Given the atmosphere of the school disturbance, a moving vehicle and the informer’s direct observation of an armed person previously entering the vehicle, the suspicious behavior of the two passengers staring at the patrolling police officer and then lowering themselves in their seats as though to conceal something, was undoubtedly sufficient to cause the officer to stop the automobile. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In United States v. Lindsey, 451 F.2d 701, 703 (3rd Cir. 1971), cert, denied, 405 U.S. 995, 92 S.Ct. 1270, 31 L.Ed.2d 463 (1972) the Court of Appeals said at page 703:

Applying Terry to the case at hand, we believe Marshal Brophy’s reactions to the unusual behavior of the defendant were justified. In the context of a possible airplane highjacking with the enormous consequences which may flow therefrom, and in view of the limited time in which Marshal Brophy had to act, the level of suspicion required for a Terry investigative stop and protective search should be lowered. Therefore, despite the fact that it may be said that the level of suspicion present in the instant case is lower than in Terry, it was sufficiently high to justify Marshal Brophy’s acting.”

In Ballou v. Commonwealth of Massachusetts, 403 F.2d 982 (1st Cir. 1968), cert, denied, 394 U.S. 909, 89 S.Ct. 1024, 22 L.Ed.2d 222 (1969), the police received information that several gangland figures were armed and meeting at a cafe. Although the informer in that case was without credentials or identity, the Court of Appeals said that for the police to have done nothing would not have been reasonable “in the light of police knowledge about the individuals and the all too real possibility of gangland violence.” The Court continued at 403 F.2d 985:

“The course of action decided upon here — to follow up the tip and investigate — was properly responsive to all the information the officers possessed and the governmental interests of crime prevention and detection. Failure to have investigated would, to use the Court’s words in Terry, [392 U.S. at 23, 88 S.Ct. at 1881] ‘have been poor police work indeed’.”

We conclude that while the suspicious actions of the defendant and his colleague were of less magnitude than in Terry, the addition here of the informer’s facts, the high school disturbance and the moving automobile were more than adequate to bring the doctrine of Terry into play and to justify the officer’s initial stop of defendant’s automobile. Those facts were undoubtedly also sufficient to justify a frisk of defendant and his companions. At that point, moreover, the officer saw a shotgun and a pistol in plain view and a sawed-off shotgun in partial view. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The frisk and automobile search ensued.

As Mr. Justice Harlan said in his concurring opinion in Terry at 392 U.S. 34, 88 S.Ct. 1886:

“Officer McFadden’s right to interrupt Terry’s freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer’s right to take suitable measures for his own safety followed automatically.”

We conclude that the search was a permissible one and that the district court properly denied the motion to suppress since “[t]he recurring questions of the reasonableness of searches” depend upon the “facts and circumstances —the total atmosphere of the case.” United States v. Rabinowitz, 339 U.S. 56, 63, 66, 70 S.Ct. 430, 434, 435, 94 L. Ed. 544 (1950).

III.

The defendant raised two additional issues on appeal.

He contended that his statement to the officer that he owned the sawed-off shotgun, the possession of which is the subject of the indictment and conviction, should have been suppressed because of the failure of the officer to give complete Miranda warnings.

The arresting officer and two other officers who were present at defendant’s arrest testified at a hearing outside the jury’s presence that the arresting officer read the warnings to defendant before questioning him from a card which he carried in his wallet, including “the right to remain silent, right to counsel, and if they haven’t got funds to have counsel, that the court will see that they are properly defended.” The defendant’s counsel requested to see the card and it was shown to him. He did not object to nor cross-examine the officer in regard to the contents of the card nor did he offer it in evidence.

Defendant complained that the card was not offered in evidence by the government and that the defendant was not advised that he had a right to have an attorney present during questioning.

Assuming that the card did not include the warning regarding the presence of an attorney, the warnings, as summarized by the officer, were satisfactory under United States v. Lamia, 429 F.2d 373 (2d Cir.), cert, denied, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970), and United States v. Cusumano, 429 F.2d 378, 380 (2d Cir.), cert, denied, 400 U.S. 830, 91 S.Ct. 61, 27 L.Ed.2d 61 (1970), in the latter of which the Court said:

“It is unrealistic to expect the same degree of formality with respect to waiver and question ‘on the street’ as in the station-house.”

Finally, defendant contended that the trial court erred when he refused to give an instruction on the voluntariness of defendant’s statement, and instead gave the court’s own instruction. We find that the district court complied with 18 U.S.C. § 3501(a).

The judgment of conviction is affirmed.

Affirmed.

SWYGERT, Chief Judge

(dissenting).

In finding probable cause to stop Adams under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the majority relies on several facts known to the arresting officers before the car actually came to a halt: “the atmosphere of the school disturbance, a moving vehicle, . . . the informer’s direct observation of an armed person previously entering the vehicle, the suspicious behavior of the two passengers staring at the patrolling police officer and then lowering themselves in their seats as though to conceal something.” With due deference to my Brothers, I am wholly unpersuaded that these factors, apart or in combination, justified the police stop at issue.

It is manifest that the gas station attendant’s observations, as conveyed by him to the police prior to the arrest, did not describe conduct which is illegal under the laws of the State of Indiana. The Government has cited no statute or municipal ordinance which makes mere public display of a rifle a criminal offense. It is apparently for this reason that the majority relies on circumstances known to the police which were extrinsic to the informant’s communication, particularly the occurrence of a high school “race riot” near in time and place to the arrest of Adams.

One of the circumstances noted by the majority is that Adams and his companions were travelling in a moving vehicle. This, we are told, has been held by the United States Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), to authorize a vehicle stop by police. I cannot agree. The essence of Carroll and its progeny is summed up in the Chambers opinion as follows:

In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible. 399 U.S. at 51, 90 S.Ct. at 1981.

Carroll did not hold that the capacity of a vehicle to move or the fact that it was so doing provided probable cause to search; those factors, instead, were viewed as exigent circumstances justifying a warrantless search where police officers independently possessed probable cause to search. The potential of a vehicle for movement excuses the failure obtain a warrant, but it cannot validate the stop and search if probable cause therefor is lacking.

The majority next points to “the suspicious behavior of the two passengers [in] staring at the patrolling police officer and then lowering themselves in their seats as though to conceal something.” The latter activity, however, occurred after the officer had turned on his light and siren. The fruits of a search by police do not provide original justification for the search; only those facts known to the officers beforehand may be taken into account in assessing probable cause. By the same token, facts which come to the attention of an officer while engaged in stopping a vehicle cannot justify his original decision to stop. They may justify his search of the vehicle and the arrest of its occupants — as, for example, where a stopping officer observes contraband being thrown from the windows of a car — but his decision to stop must be grounded in an independent and prior justification.

This leaves the suspicious circumstance of “staring at the patrolling officer.” This followed and was in response to the execution of a U-turn by the police car which eventually made the stop. Staring back at a police car in that circumstance cannot, I think, be taken as more than the natural reaction of any person. This is hardly “unusual behavior” of the sort which justified a stop and frisk in United States v. Lindsey, 451 F.2d 701 (3d Cir. 1971), where the defendant, attempting to board a plane, identified himself by three different names, displayed “indicia of extreme anxiety,” and appeared to be carrying two large objects in his coat pocket. Ballou v. Massachusetts, 403 F.2d 982 (1st Cir. 1968), also cited by the majority, is not apposite in this context; probable cause to stop in that case was not founded on observation of the eventual defendant by the police who stopped him.

I come, finally, to the “race riot” justification for the instant stop. That is the crux of this case. What evidence ol a race riot was adduced at the motion to suppress ? Dean, the gas station attendant, testified:

Q: Could you tell us, sir, if you saw or noticed anything unusual that day?
A: Yes. Other than the riot that was happening at Washington High School at this time, ....

The only other pertinent statement was by Officer Radecki, the policeman who stopped Adams. He mentioned that there was a “disturbance with the students” at nearby Washington High School. In sum, the record establishes a “disturbance” or “riot” void of racial overtones. Only at the trial was the racial character of the riot hinted at.

This reference to a disturbance, standing alone, has no probative bearing on the issue of probable cause to stop. Other questions necessarily arise. Did his knowledge of the disturbance give Officer Radecki good reason to believe that armed men in the vicinity were proceeding or might proceed to the high school to violently intercede in the turmoil? The record is silent on the magnitude or character of the disturbance. More important, did the officer, if he had a reasonable fear of armed intervention, connect Adams and his companions with that fear? Radecki never testified to that effect, and the record would contradict him if he had. It appears that Adams was proceeding away from the high school at the time Radecki first observed the car, and that Adams was at all pertinent times further from the high school than he was when first observed by the informant. Finally, was the combination of Radecki’s fear with the admonition of the police bulletin the reason for his stop of Adams, or was Radecki relying solely on the bulletin? The only testimony by the officer on the point was:

Q: Wouldn’t you say there was a lot of confusion out there that day when —not when you first stopped them, but when you saw the guns in the ear?
A: You might say there was a little confusion. I didn’t see where anybody was confused. The confusion was out at the school.
Q: You had no knowledge that these people were involved with anything out at the high school, did you?
A: No; just the call came out over the air.
Q: The call didn’t say anything about these guys being out of the Washington High School, did it?
A: No, it did not.

Given nothing else, the ambiguity of this testimony must be resolved in favor of Adams.

The majority, I believe, proceeds on the mistaken assumption that the defendant bore the burden of proof on the riot issue at the suppression hearing. At a hearing on a motion to suppress, the defendant-movant bears the burden of coming forward with evidence that his search was not pursuant to warrant or that a warrant issued against him or his property was constitutionally defective. Once he has shown a warrantless search, the Government must shoulder the burden of proving the legality of that search. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948); United States v. Gamble, 473 F.2d 1274 (7th Cir., 1973); Wrightson v. United States, 95 U.S. App.D.C. 390, 222 F.2d 556 (1956); 8A Moore’s Federal Practice f[ 41.08 [4] (1972). Why this is so was made evident as far back as McDonald:

Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. 335 U.S. at 456, 69 S.Ct. at 193. (Emphasis added.)

Since the Government failed to demonstrate any legal justification to stop the automobile driven by Adams, the subsequent search of the vehicle was unlawful.

In my judgment, the trial judge erred in denying Adams’ motion to suppress. I would therefore reverse his conviction.

      . Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931) ; Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938) ; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

      . It is clear that contraband (defined as an item the possession of which in itself is a crime) may be seized in the course of a legal search. Cf. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). The sawed-off shotgun which formed the basis of the offense in the instant case is contraband. See 26 U.S.C. §§ 5841, 5861(d), and 5871; 49 U.S.C. § 781(b)(2).

      . “Ladies and gentlemen of the jury, before you take into consideration as evidence the statement (s) allegedly made to the South Bend police officers by the defendant you must first find that before making the statement (s) that — (1) defendant was informed lie had a right to remain silent and that anything he said could be used against him, and (2) defendant was informed that he had a right to have counsel present at the interview, and (3) defendant was informed that if he could not afford counsel, counsel would be furnished him to be present at the interview without cost before any interview.
      “If no counsel was present at the time the alleged statement (s) was made by the defendant, the government must prove to your satisfaction beyond a reasonable doubt that the defendant intelligently and understandingly waived the right to have counsel present at the interview.
      “In addition to making the foregoing findings, before you take into consideration the alleged statement (s) and evidence you must also find that the statement (s) was voluntary in accordance with the other instructions given to you, recalling that any statement(s) made outside of the Court should be considered with caution and weighed with great care.”

      . “The Court instructs you that it has found that the statement made by the defendant at the time of his arrest was voluntary, and based upon that Court’s finding, the Government witnesses were permitted to testify as to certain statements which the defendant was alleged to have made at or following the time of his arrest.
      “However, it is for the jury to determine the credibility and weight to be given such statement with respect to defendant’s innocence or guilt.”

      . “In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible, in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, detei’mine any issue as to volun-tariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of volun-tariness and shall instruct the jury to give such weight to the confession as the jury feels it deseiwes under all the circumstances.”

       At the hearing on the motion to suppress the attendant testified as follows:
      Q: What did you tell him [police officer] ?
      A: I said that I saw three Negroes approaching a yellow Chevrolet.

        Q: Okay. That is what you told the police officers.
      A: Yes.
      Q: And you said you thought you saw one carrying a rifle?
      A: Bight; what appeared to be a rifle.
      Q: Appeared to be a rifle. Okay. And that is all you told the police?
      A: Well, I gave him the location when he asked for it.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kimberly Stiles BINGHAM, Defendant-Appellant.
    No. 72-2688.
    United States Court of Appeals, Ninth Circuit.
    May 7, 1973.
    As Amended Aug. 31, 1973.

      Michael S. Kelley (argued), Berkeley, Cal., for defendant-appellant.
    Robert E. Carey, Jr., Asst. U. S. Atty. (argued), James L. Browning, U. S. Atty., James Bruen, Chester G. Moore, III, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee.
    Before WRIGHT and WALLACE, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge, Los Angeles, California, sitting by designation.

   WALLACE, Circuit Judge:

Bingham was convicted for failing to report for induction in violation of 50 U.S.C.App. § 462(a). We affirm.

I

Bingham first contends that his conviction must be reversed because the clerk who, subsequent to sending him an order to report, received Selective Service Forms 127 and 217 failed to submit them to the local board for its consideration. In the Form 127 (Current Information Questionnaire), he stated he was a pacifist. To constitute reversible error, the registrant must have presented a prima facie case for reopening. United States v. Stacey, 441 F.2d 508, 510 (9th Cir. 1971). Here there was none. His statement that he was a pacifist fell far short of establishing a prima facie claim. See United States v. McKinley, 447 F.2d 962, 963 (9th Cir. 1971). The requisite of new information not previously supplied is totally lacking as his conscientious objector status had been considered and rejected twice before by the board. See Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). Finally, the form fails to show a change of circumstances beyond Bingham’s control subsequent to the order of induction. Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971); 32 C.F.R. § 1625.2.

Bingham is not aided by United States v. Kelly, 473 F.2d 1225 (9th Cir. 1973). There we stated:

Thus, where a registrant sets out new facts that establish a prima facie case for a new classification, the board must reopen to determine whether he is entitled to that classification.

Id. at 1227. Here there were no new facts — the same claim was presented twice before and twice rejected. Also, there was no prima facie showing for a new classification.

On the back of the Form 217 (right to appeal), which Bingham returned to his local board, he requested a personal appearance. As this was not made within the required thirty days, his contention of error is without merit. 32 C.F.R. § 1624.1(a).

II

Bingham next contends that he was denied due process because he was misled by the board. Bingham had refused to submit to induction some eighteen months prior to the induction order he violated in this case. He was warned that the United States Attorney would be handling his case, but he was never prosecuted. He argues the board should have told him there would be no prosecution for this earlier infraction.

In addition to the correspondence referred to above, during this eighteen months, the board mailed Bingham a Form 150 (conscientious objector), a notice of 1-A classification, and an order to report. When the Forms 127 and 217 referred to above were returned to the board, the clerk immediately wrote Bing-ham requesting that he notify the board whether he was withdrawing his conscientious objector claim or if he desired another Form 150. He never replied and did not report.

The board did not mislead Bingham. If based upon these facts, he could not surmise that he was not to be indicted after his first failure to report, he certainly should have inquired. See United States v. Timmins, 464 F.2d 385, 387 (9th Cir. 1972). We specifically reject the rule proposed by Bingham that the board was under an absolute duty to advise him that he was not to be prosecuted for his first failure to report.

Ill

Bingham also contends that the local board’s actions violated the mandate of a letter from the State Director. Due to a procedural error and after Bingham first refused induction, the State Director wrote the local board, requesting that Bingham be classified anew “to reopen his rights of personal appearance and appeal” and that he be given another opportunity to complete Form 150 and to present information to support his claim..

Whether Bingham can charge error in the board’s alleged failure to follow the directions contained in this letter depends upon the power and duties of the State Director. 32 C.F.R. § 1604.12 provides that he “shall be responsible for carrying out the functions of the Selective Service System in his State.” In particular, 32 C.F.R. § 1612.11 requires the director to supervise registration. That section appears in part 1612 which is entitled “Registration Duties.” There is no equivalent section in parts 1621-23, all of which concern classification. For “[i]t is the local board’s responsibility to decide, subject to appeal, the class in which each registrant shall be placed.” 32 C.F.R. § 1622.1(e). (Emphasis added.) Still the State Director has the limited review permitted by 32 C.F.R. § 1625.3(a) which allows him to direct the reopening of a registrant’s classification. If he does, then “[t]he local board shall reopen and consider anew the classification. . . .”32 C.F.R. § 1625.3 (a).

Here the State Director, citing § 1625.3 in his letter, requested reopening of Bingham’s classification. Bingham does not contend that the board failed to reopen. However, the State Director also stated that Bingham should again be furnished an opportunity to establish a conscientious objector claim. The local board, upon receipt of the letter, mailed Bingham a Form 127. It was not timely returned. One month later, the board reclassified him 1-A. Bing-ham argues that these actions did not constitute sufficient compliance with the letter’s mandate.

Does the director have the power to require certain classification procedures? Undoubtedly he may require a reopening as he did in this case. However, the local board controls classification, subject only to appeal and mandated reopening. The State Director has no authority to specify procedures in the classification of a particular registrant. See United States v. Pace, 454 F.2d 351, 355 (9th Cir. 1972); United States v. Kohls, 441 F.2d 1076, 1078-1079 (9th Cir.), cert, denied, 404 U.S. 844, 92 S. Ct. 142, 30 L.Ed.2d 79 (1971). His remarks pertaining to classification are advisory only and, therefore, there was no error.

IV

Bingham’s final argument is that the board’s failure to comply with Local Board Memorandum No. 41 requires reversal. If a registrant signed Series VIII on Form 100 (Classification Questionnaire), the memo provided that he “should be considered to have claimed conscientious objection . . .” and that the “local board will make every effort to secure a completed” Form 150. Bingham had signed Series VIII. The board sent him a Form 150, but he did not return it.

We have previously characterized Memorandum No. 41 as a “housekeeping measure.” Furthermore we have considered it a “direction” which “does not change the general rule of Selective Service procedure that the burden is on the registrant to apprise the local board of facts which warrant a classification other than I-A.” United States v. Enslow, 426 F.2d 544, 546 (9th Cir. 1970). “We do not view the conclusory statement in Series VIII, Form 100, as a fact establishing a prima facie case for exemption.” Id. at 545 n. 5.

Like Bingham, Enslow signed Series VIII but failed to return a completed Form 150. We upheld Enslow’s conviction despite the applicability of Memorandum No. 41, because “[hjaving failed to give the local board any facts, upon which they could determine his conscientious objector claim, he cannot now, after this complete bypass of the local board, raise the failure to grant the exemption as a defense in a prosecution for refusal to report for induction.” 426 F.2d at 545 (footnote omitted). See United States v. Lloyd, 431 F.2d 160, 167-168 (9th Cir. 1970), cert, denied, 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971). We see no basis for distinguishing this case from Enslow and therefore reject Bingham’s final argument.

Bingham’s failure to exhaust his administrative remedies cut off judicial review of his conscientious objector claim. McGee v. United States, 402 U.S. 479, 488-491, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).

Affirmed.

      . Although both Kelly and Bingham involve 32 C.F.R. § 1625.2, Kelly presented his claim prior to mailing of the induction order while Bingham presented his after. The regulation describes the two possibilities differently. The board may consider Kelly’s claim, but Bingham’s classification shall not be reopened absent changed circumstances beyond his control. The Supreme Court has held that the regulation “bars post-notice reopening” without non-volitional changes. Ehlert v. United States, 402 U.S. 99, 104, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). This difference appears to us to be significant and provides another reason why Kelly is distinguishable. This approach is also consistent with other Ninth Circuit cases upholding convictions despite post-notice claims which were not prima facie showings and were not acted upon by the local board. See United States v. Lanier, 470 F.2d 1368 (9th Cir. 1972) ; United States v. Greene, 456 F.2d 256 (9th Cir.) (dictum), cert, denied, 406 U.S. 977, 92 S.Ct. 2425, 32 L.Ed.2d 677 (1972). But see United States v. O’Neil, 476 F.2d 295 (9th Cir. 1973), which failed to cite Lanier and Greene.

      We need go no further than to hold Kelly does not apply to the facts in this case. We note that our court has apparently reached a conclusion different from Kelly in prior cases which treated pre-notice claims. See United States v. Johnson, 473 F.2d 677 (9th Cir. 1972) ; United States v. McKinley, 447 F.2d 962 (9th Cir. 1971). Each of those eases involved a claim presented prior to mailing of the order which the board did not act upon. In fact, the McKinley board did not meet at all during the critical period. Neither claim made a prima facie showing and in each case, we upheld the conviction because there was no prejudice.

      . Appeals may be taken either to the appeal board or the President. See 32 C.F.R. parts 1626-27. See also 50 U.S. C.App. § 460(b)(3).

      . Had the State Director the power to dictate classification procedures, we would hold there was substantial compliance in this case.

      . The memorandum was rescinded .on August 24, 1970.

      . United States v. Sanders, 470 F.2d 937, 939 n. 1 (9th Cir. 1972). We have also characterized the interviews proposed by the memorandum as “ ‘courtesy’ appearances . . . without statutory authority.” United States v. Hayden, 445 F.2d 1365, 1374 (9th Cir. 1971).