author: RONEY, Circuit Judge:

text:
    HIRAM CLARKE CIVIC CLUB, INC., etc., et al., Plaintiffs-Appellants, v. James T. LYNN, Individually and as Secretary of the Department of Housing & Urban Development, et al., Defendants-Appellees, Libo, Inc., Intervenor-Defendant-Appellee.
    No. 72-1268.
    United States Court of Appeals, Fifth Circuit.
    April 3, 1973.

      Hellmut A. Erwing, O. K. Jerden, Houston, Tex., for plaintiffs-appellants.
    Anthony J. P. Farris, U. S. Atty., Jack Shepherd, Chief Asst. U. S. Atty., Theo W. Pinson, III, James R. Gough, Asst. U. S. Attys., W. Edwin Denman, Vernon E. Fewell, Houston, Tex., Kent Frizell, Asst. Atty. Gen., Edmund B. Clark, Larry G. Gutterridge, Attys., Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and MOORE and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   RONEY, Circuit Judge:

In this action appellants seek to enjoin the federal funding of a proposed low and moderate income apartment project in Houston, Texas. Appellants contend that the failure of the Department of Housing and Urban Development to file an environmental impact statement bars it from further funding of the project. The District Court denied injunctive and declaratory relief. We affirm, holding that the threshold determination made by HUD not to file an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4321 et seq. was not unreasonable and must therefore be upheld. See Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973).

The proposed project against which this action is directed is a 272-unit apartment complex to be known as the Artistocrat Apartments and to be constructed on a fifteen acre tract near West Airport Boulevard and Hiram Clarke Road in Houston, Texas. The estimated cost of the project is some $4,181,330, and a loan to the private developer, approximately $3,763,200, is to be insured by HUD Under Section 236 of the National Housing Act, 12 U.S.C.A. § 1715z-l(j), which provides federal mortgage insurance for housing projects designed for low and moderate income residents. The apartments have an average value of $15,400 and the project contains courtyards, open spaces, children’s playgrounds, a swimming pool, and a 6,500 square-foot community center.

Appellants, homeowners in the immediate area surrounding the site of the proposed apartments, initially opposed the project through local zoning boards and other governmental administrative bodies. Finding no success, appellants then challenged the HUD funding decision. On appeal, as in the District Court, they contend first, that HUD failed to comply with its own regulations implementing NEPA and second, that, even if HUD’s actions complied with its own regulations, the requirements of the Act itself remain unfulfilled.

I.

Under NEPA, Congress has established a system of procedures for federal agencies to follow in making decisions that might have an impact on the environment. Section 102(2) (C) of the Act, 42 U.S.C.A. § 4332(2) (C), which sets out the concept of the environmental impact statement, requires that “all agencies of the Federal Government shall (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment” a detailed statement on the proposed action’s envionmental effects. This rather general legislative language received explication in the interim guidelines of April, 1970, published by the Council on Environmental Quality, the agency established by Title II of NEPA, 42 U.S.C.A. §§ 4341-4347, to serve as a research, resource, and advisory body in the Executive Office of the President of the United States. These guidelines became final, without important alteration, in April, 1971. Section 3 of the guidelines directed federal agencies to promulgate their own procedures for “identifying those agency actions requiring environmental statements . . . Council on Environmental Quality, Guidelines § 3, 36 Fed.Reg. 7724 (April 23, 1971). Section 5(a) (ii) defines “action” as including projects supported in whole or in part by federal loans, subsidies, or other forms of funding assistance. Guidelines, supra, § 5(a) (ii), 36 Fed. Reg. 7724 (1971).

These CEQ guidelines are merely advisory, because the CEQ does not have the authority to prescribe' regulations governing compliance with NEPA. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir. 1972). Following these CEQ guidelines, however, HUD published Circular 1390.1 setting forth the detailed procedures that it would employ for screening all HUD projects to insure its compliance with the Act as to each project.

HUD Circular 1390.1 established certain “thresholds” that are used to isolate those projects that may be major federal actions significantly affecting the quality of the human environment. A project passing the first threshold is then given special environmental consideration and study. This means that the project must be thoroughly investigated, and the HUD office involved must either file a “negative statement,” indicating that approval of the project application is consistent with established HUD policy and standards and that it would have no significant adverse effect on the environment or, if unresolved environmental issues or concerns remain, must draft and circulate a detailed environmental impact statement.

“Special Environmental Clearance” for projects and major changes: That additional review of environmental consequences which shall be applied to larger size projects or projects with greater environmental significance (including all projects above thresholds in Appendix A) and to projects which are controversial with regard to whether or not HUD and other appropriate environmental policies and standards are being met, or precedent-making in the sense that important environmental circumstances are not treated in HUD’s central office guidance documents. For this purpose, the HUD Environmental Clearance Worksheet (see Appendix B) is suggested. All special environmental clearances shall result in either (a) a negative statement signed by the head of the HUD field office (or his designated Environmental Clearance Officer), indicating that approval of the application is consistent with established HUD policy and standards and would have no significant adverse effect on the environment, or (b) if there are still unresolved environmental issues and concerns, the drafting and circulating ot a 102(2) (C) environmental statement. A negative statement or a 102 (2) (C) environmental statement shall become part of the application file and shall accompany the application through the HUD review and decision process.

The “threshold concept” used to screen proposed applications of the kind under review here establishes the rule that proposed apartment projects of one hundred or more units require a “Special Environmental Clearance.” Additionally, paragraph 3 of HUD Circular 1390.1, Appendix A, states that “controversial” or “precedent-making” HUD projects must be given “Special Environmental Clearance.”

The precise question before us, then, is whether HUD complied with the mandate of NEPA and with its own guidelines.

The standard for reviewing HUD’s decision has been explicated by this Court in our recent opinion in Save Our Ten Acres v. Kreger, supra. In SOTA, we held that the decision of a federal agency not to file an environmental impact statement, when reviewed by the courts, should be tested by a stricter “reasonableness standard,” instead of by the well-settled rule that, in the absence of fraud, administrative findings of fact are conclusive if supported by any substantial record evidence. This more penetrating standard is necessary because “[t]he spirit of [NEPA] would die aborning if a facile, ex parte decision that the project was minor or did not significantly affect the environment were too well shielded from impartial review.” SOTA, at page 466.

This case, though, differs from the SOTA case in the procedures and standards employed by the District Court to evaluate HUD’s determination that an environmental impact statement was not required. Unlike in SOTA, where the District Court denied relief solely on the basis of its review of the agency’s administrative record, the District Court here conducted a full-scale trial on the issue, hearing witnesses and taking evidence from parties involved. Hence, the District Court’s decision here rests upon two independent bases: the record of HUD’s considerations and the Court’s own findings. This is not to say, though, that this procedure is mandatory whenever someone challenges an agency’s failure to file an environmental impact statement. Rather, as we said in SOTA, only if a plaintiff raises substantial environmental issues should a court proceed to examine and weigh the evidence of both the plaintiff and the agency to determine whether the agency reasonably concluded that the particular project would have no effects that would significantly affect our environmental quality. Only if the plaintiff can show an inadequate evidentiary development before the agency should the District Court supplement the deficient administrative record by taking evidence on the environmental impact of the project.

We reiterate, as we stated in SOTA, that it is not the province of the courts to review the agency decision on the merits as to the desirability vel non of the proposed project. Instead,

it is the courts’ function to insure that the mandate of the statute [NEPA] has been carried out and that all relevant environmental effects of the project be given appropriate consideration by the responsible official whenever it is unreasonable to conclude that the project is without the purview of the Act.

SOTA, supra, at page 467 (emphasis added).

II.

On December 1, 1969, the private developer, LIBO, Inc., applied to HUD for federal mortgage insurance available under Section 236 of the National Housing Act, 12 U.S.C.A. § 1715z-l(j). On July 16, 1971, HUD issued a Firm Commitment to assist the proposed project, promising to supply both federal loan insurance and mortgage payment subsidies.

NEPA became effective on January 1, 1970, and on April 30, 1970, the interim guidelines for implementing NEPA were issued. As we have pointed out earlier, these guidelines were issued in final form, with only minor changes, on April 23, 1971. On June 19, 1970, HUD issued a memorandum establishing interim internal procedures for implementing NEPA. Specific policies and procedures applicable to HUD offices in the Fort Worth Region were established by HUD Circular FW 1300.2, issued March 1, 1971, and received by the Houston HUD office on March 15, 1971. This Circular introduced the “threshold” and “negative statement” concepts. On July 16, 1971, HUD issued Circular 1390.1 establishing nationwide departmental policies governing the implementation of NEPA, including specific “threshold” and “negative statement” procedures. On September 21, 1971, CEQ General Counsel approved HUD’s “negative statement” procedures.

Appellants filed their complaint on October 18, 1971. At this time, the Houston HUD office reviewed the entire project for the second time. Although the project had been in the HUD “pipeline” prior to the effective date of NEPA and before HUD Circular FW 1300.2, paragraph 3, directed that there must be evidence of “significantly adverse” environmental impact before the provisions of HUD Circular 1390.1 (the HUD Circular implementing NEPA) apply to applications in the HUD “pipeline” prior to March 15, 1971, the Houston HUD office, nevertheless, worked up a “Special Environmental Clearance.”

Under the direction of the Multi-Family Appraiser, a HUD “Environmental Clearance Worksheet” was prepared, considering population density and distribution, adequacy of sewer and water facilities, vehicular traffic, ingress and egress, noxious odors, inharmonious property uses, deteriorating neighborhood influences, adequacy of community support facilities, location in relation to the general area, the proposed management plan for maintaining the apartments, and the value of the property and the kind of development that could otherwise be expected on the property.

This “Worksheet” was reviewed by the same officials who had previously evaluated it, the Chief Valuator, the Chief Architect, and the Multi-Family Coordinator, but this time with special emphasis on environmental impact. Their review concluded that the proposed project would not produce the significant environmental impact contemplated by NEPA. The Chief Underwriter and Environmental Clearance Officer then prepared a “negative impact” statement. After full staff consultation, the Director of the Houston HUD office concurred in the “negative statement.”

After a careful examination of the trial testimony and the supporting HUD documents, we conclude that the District Court correctly held that, as a matter of law, HUD was not required by NEPA to file an environmental impact statement covering the proposed apartment project. Although the District Court here did not have the benefit of our opinion in SOTA when it reviewed the HUD decision, its findings amply support the agency decision. As the Director of the Houston HUD office testified, appellants have raised no environmental factors, either beneficial or adverse, that were not considered by HUD before it concluded that this apartment project would produce no significant environmental impact. On this record, then, it was not unreasonable for HUD to determine that an environmental impact statement was not required.

Appellants argue that the HUD actions here do not comply with the final CEQ Guidelines. They especially contend that Section 5(b) of the Guidelines, 36 Fed.Reg. 7724 (1971), which requires that an environmental impact statement be prepared where the proposed federal action “is likely to be highly controversial,” requires HUD to file an environmental impact statement here. Apart from the question of what constitutes a “highly controversial” federal action, a question which must surely be answered in the negative in this case, appellants misperceive the authority of the CEQ Guidelines. Unlike agency regulations, which have the force of law, these Guidelines are merely advisory because the CEQ was not given authority to prescribe regulations governing compliance with NEPA. Greene County Planning Board v. FPC, supra.

Appellants next contend that HUD’s standard of determining “significant effect” incorrectly equates “significant” with “adverse.” Appellants argue that HUD’s determination was necessarily based on an incomplete investigation, since HUD was concerned only with adverse impact. They point to CEQ Guideline 5(c), which states :

Section 101(b) of the Act indicates the broad range of aspects of the environment to be surveyed in any as- • sessment of significant effect.

36 Fed.Reg. at 7725 . (1971). Once again, though, possible HUD noncompliance with CEQ Guidelines raises no legal issue. But the deeper question remains of whether this HUD practice, that of determining that an environmental impact statement is unnecessary if no adverse environmental effects can be forecast for the federal action in question, complies with NEPA. Appellants argue that NEPA requires that an agency file an environmental impact statement if any significant environmental effects, whether adverse or beneficial, are forecast. Thus, they argue, by considering only adverse effects HUD in effect did but one-half the proper investigation. We think this contention raises serious questions about the adequacy of the investigatory basis underlying the HUD decision not to file an environmental impact statement. A close reading of Section 102(2)(C) in its entirety discloses that Congress was not only concerned with just adverse effects but with all potential environmental effects that affect the quality of the human environment.

Nevertheless, any deficiency in this HUD procedure does not require the preparation of an environmental impact statement for this project. The District Court in a full evidentiary hearing fully explored the controlling factors and concluded that the project in question was not a major federal action significantly affecting the quality of the human environment within the Congressional meaning of the National Environmental Policy Act.

Affirmed.

      . Cooperation of agencies ; repons ; availability of information ; recommendations ; international and national coordination of efforts
      The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—
      * * * * *

      (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
      Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;
      42 U.S.C.A. § 4332.

      . Paragraph 3 states :


source: Caselaw Access Project

author: COLEMAN, Circuit Judge: RONEY, Circuit Judge

license: Public Domain

text:
    John C. MEYERS & Lucy B. Meyers et al., Plaintiffs-Appellants, v. C & M PETROLEUM PRODUCERS, INC., et al., Defendants-Appellees.
    No. 72-2632.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1973.
    Rehearing and Rehearing En Banc Denied May 24, 1973.

      H. Lehman Franklin, Jr., Statesboro, Ga., Hull, Towill, Norman, Barrett & Johnson, Wyckliffe A. Knox, Jr., Augusta, Ga., for plaintiffs-appellants.
    William A. Zorn, Jesup, Ga., for defendants-appellees.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   COLEMAN, Circuit Judge:

Section 771, Title 15, United States Code provides as follows:

§ 77Z. Civil liabilities arising in connection with prospectuses and communications.
Any person who — •
(1) offers or sells a security in violation of section 77e of this title,
* * * * * *
shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.

In this appeal the sole issue is whether, under the pleadings and the facts, plaintiffs-appellants waived the right of recovery provided by the above statute.

The District Court submitted the issue to a jury, which found for the defendants, with judgment accordingly. We reverse and remand, with directions that judgment be entered for plaintiffs for the recovery specified by § 771.

C & M Petroleum Producers, Inc., is a Georgia corporation with its principal office and place of business in Jesup, Georgia. The corporation was organized for the purpose of buying and selling mineral leases in gas and oil wells in Ohio. The Company began to offer to sell and deliver these securities to certain residents of Georgia and Florida. The purchasers-appellants paid C & M a total of $23,750 for their interests in the wells. Although no registration statement has been filed with the Securities and Exchange Commission as required by § 5 of the Securities Act of 1933, the mails, telephone, and other means of interstate transportation and communication were employed by C & M in these offers, sales, and deliveries.

Being informed of non-compliance with the registration requirements of the Securities Act of 1933 and the Georgia Securities Act of 1957, C & M wrote purchasers-appellants on May 27, 1969, advising them of the status of the matter and offering to repurchase their interests in the wells. The letter stated:

“We are advised that as a result of having sold you an interest in the above mentioned gas wells, we are in violation of the Georgia Securities Act of 1957 as amended and the Securities Act of 1933 as amended. These Statutes provide that we should have registered this interest as a security before offering it to you for sale. Consequently, in view of our violation of the Georgia and Federal Statutes, we hereby offer to repurchase from you said interest for the sum of money paid by you for said interest, less any monies received by you therefrom. This offer to repurchase the above described interest from you shall terminate ten days after the date hereof. In other words, you have ten days to decide whether you want to keep your interest or not. Enclosed is a copy of this letter on which you are requested to indicate your preference. You will also find herewith a stamped, self-addressed envelope in order that you may return the enclosed copy to us promptly. Very truly yours, C & M Petroleum Producers, Incorporated. Herman Morris.
“1. I desire that my interest be repurchased ( ).
“2. I do not desire that my interest be repurchased ( ).
“If we have not received a reply within ten days, we will assume that you wish to keep your interest in the referred well or wells.”

The purchasers did not accept this proposal. Their attorney wrote C & M that he felt it impossible to determine the feasibility of accepting or rejecting the purchase offer unless first given data which would reflect the actual value of the securities. This clearly meant that the purchasers did not wish to surrender the securities if they were worth more than had been paid for them. The letter raised no other impediment to the return of the stock. It indicated an unwillingness to accept the remedy provided by the statute.

The purchasers took no further action and the ten day period expired. C & M then revoked the offer to repurchase.

Thereafter, the purchasers received and accepted $1,472.91 in income from the wells.

On December 23, 1969, the purchasers brought suit to recover the consideration paid for the securities, with interest, less the income received therefrom.

As already stated, the District Court allowed into evidence C & M’s ten day repurchase offer as bearing on whether the purchasers had waived their rights under §§ 5 and 12(1) of the Securities Act of 1933 [15 U.S.C., §§ 77e and 771]. The jury found that the purchasers-appellants had waived their rights and judgment was entered for C & M.

Appellants assert two grounds for reversal : that the defense of waiver is not available in a suit arising under § 12(1) of the Act, and that the repurchase offer itself violated the registration requirements of the Act.

Since, except for the self-imposed ten day limitation, the C & M letter was an offer to provide the remedy prescribed by statute, we find no merit in the second argument.

This leaves remaining only the contention that by the express provisions of the Securities Act mere waiver was not, and could not be, a defense to this suit.

We recognize, of course, that ordinarily one may waive constitutionally guaranteed rights if it is intentionally and voluntarily done, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

As to the sale of unregistered securities, however, Congress has specifically placed waivers in a different context. 15 U.S.C., § 77n, provides that:

“Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this sub-chapter or of the rules and regulations of the Commission shall be void.”

Can-Am Petroleum v. Beck, 10 Cir., 1964, 331 F.2d 331, was a case in which undivided interests in oil and gas leases had been sold in violation of §§ 77e and 771 of the Act. The Court held that the remedial aspects of the Securities Act cannot be waived, either directly or indirectly, citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). The appellees here, defendants in the court below, sought to establish a waiver in the manner and form already set forth. Contrary to the general rule applicable to other transactions, this has been expressly prohibited by the Congress for the purpose of making the Act as effective as possible.

If C & M had unconditionally tendered the refund of the purchase price together with interest, less income received from the securities, coupled with a demand for the return of the securities, and had the purchasers rejected such an unconditional tender and demand they would have impaled themselves upon such an estoppel as recognized by the Court of Appeals for the Ninth Circuit in the cases of Straley v. Universal Uranium and Milling Corporation, 1961, 289 F.2d 370, and Royal Air Properties, Inc. v. Smith, 1964, 312 F.2d 210. What the appellees did was to make an offer to repay the purchase price and accept return of the securities, but they imposed their own ten day limitation upon the acceptance of the offer. When .the offer was not accepted within the prescribed time the sellers cancelled it, restoring the parties to the position they occupied before the offer was made. While, as the jury found, this could be enough to establish a waiver, it was not enough to create an estoppel, lacking, as it did, an unconditional tender and demand.

Our opinion in this case is not to be construed as holding that purchasers of unregistered securities may reject the remedy provided by law when unconditionally tendered and thereafter, at their option, dally around while interest is running and increment is occurring, only to bring suit, at their pleasure, sometime within the statutory period. Such a course is on its face a distortion of the remedy provided by Congress.

Neither is this opinion to be construed, as holding that once a purchaser receives such an unconditional tender and demand he may take the attitude of accepting it only if it is to his pecuniary advantage to do so. Without cavil, he must accept or reject. He cannot eat the cake and keep it, too.

Our holding in this case is that while the defendants-appellees established a waiver, the statute permits none.

For these reasons, the judgment of the District Court must be reversed and the cause remanded, with directions as hereinabove set forth.

Reversed and remanded, with directions.

RONEY, Circuit Judge

(specially concurring) :

I concur in the decision that the failure of the purchasers to accept the repurchase offer of the sellers did not constitute an effective waiver of rights under the statute. The matter is completely within the control of Congress, which provided that

Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this sub-chapter or of the rules and regulations of the Commission shall be void. (Italics added)

Section 14, Securities Act of 1933, 15 U.S.C.A. § 77n. Since apparently an intentional, formal, written waiver executed either before or after the acquisition of securities is void, a fortiori any waiver that might be inferred from less formal acts must also be void.

Although I understand the other comments in the opinion to be only an explanation of the holding, I would not pass on the possibility of an estoppel until confronted with a case to which that doctrine might be applicable.


author: TALBOT SMITH, Senior District Judge.

text:
    HARPER & ROW PUBLISHERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1218.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 8, 1973.
    Decided April 16, 1973.

      Steve R. Semler, Atty., N. L. R. B., Washington, D. C., for respondent.
    Michael J. Tannler, St. Louis, Mo., for petitioner.
    Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       Hon. Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

This case had its origin in an effort by certain of the employees of the Petitioner, Harper & Row Publishers, Inc. (hereinafter, the “Company”), to unionize their plant, affiliating with (originally) Teamsters Local 682.

Upon Complaint issued, a hearing was held, as a result of which the Trial Examiner concluded that the Company had committed unfair labor practices in violation of Sections 8(a)(1), (3) and (5) of the National Labor Relations Act and recommended remedial action, including an order that the Company bargain with Teamsters Local 682. The Board (with the Chairman dissenting as to one point) sustained the Trial Examiner and ordered that the Company cease and desist the unfair practices found, and take certain affirmative action, including an order to bargain. The matter is before us on the Company’s petition to review and on the Board’s cross-application for enforcement of its order. We have jurisdiction under Sections 10(e) and (f) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.).

Again we are faced with the bargaining order problem. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); N.L.R.B. v. Arrow Specialties, Inc., 437 F.2d 522 (8th Cir. 1971); Howard Mfg. Co., Inc. v. N.L.R.B., 436 F.2d 581 (8th Cir. 1971); N.L.R.B. v. Regal Aluminum, Inc., 436 F.2d 525 (8th Cir. 1971); Ace-Alkire Freight Lines, Inc. v. N.L.R.B., 431 F.2d 280 (8th Cir. 1970); Hy-Vee Food Stores, Inc. v. N.L.R.B., 426 F.2d 763 (8th Cir. 1970), cert. denied, 400 U.S. 879, 91 S.Ct. 120, 27 L.Ed.2d 116 (1970). Although we grant enforcement in part, we will not sustain the Board’s bargaining order. In view of the fact that such order involves, and to a large degree depends upon the Board’s findings as to the unfair labor practices charged (and found) we will examine in some detail the evidence relevant thereto.

The Company is engaged in the publication, sale and distribution of books and other printed materials. In Troy, Missouri, it maintains a warehouse, the facility involved in the present controversy. Early in March, 1971, two employees, William Creech and Dennis Hickman, contacted Anthony Parrino, the business agent of Local 682, and arranged a meeting at the home of Mary Geraldine Creech to discuss unionization. At this meeting all of the employees present signed authorization cards for the Union. The following day, March 11, there was much activity in and around the plant respecting the signing of authorization cards, as well as on subsequent days. By March 15th, some four days later, Local 682 had obtained cards signed by 45 employees, including one signed by an office clerical' employee. (At this time there were approximately 80 employees at the warehouse, including nine office clerical employees). The following day, March 16, Eugene Walla, President of Local 682, accompanied by Anthony Parrino, went to the Company’s office and asked to see the Plant Manager, John Misiura. The Trial Examiner credited Walla’s version of the meeting, namely, that he (Walla) “had secured authorization cards for representation of employees of his particular firm” and asked if “he. would recognize the local union as the bargaining agent for these employees.” Mr. Misiura replied that “he didn’t believe that we represented anybody” and that “we could get off his property immediately.” Mr. Noto (the plant engineer) who was standing nearby stated that they couldn’t negotiate, that their supervisors were in New York and their lawyers in St. Louis. Walla replied that they did not seek negotiations at that time but merely recognition of Local 682 as the bargaining representative, warning Misiura not to discriminate against any employees who had sought representation by Local 682. Misiura replied that he had told them once to get off the' grounds and threatened to call the sheriff. Walla and Parrino then left, with Walla’s announcement that “I think I will just throw a picket around here tomorrow.” That night a strike was voted and on the following day picketing began. On the same day Local 682’s attorney filed with the Board’s Regional Office a Petition for Election.

In late March, counsel for the Company and Local 682 discussed practical means for settling the strike. It was agreed to seek an early election. President Walla at a meeting on Sunday, April 4, recommended a discontinuance of the strike and the picketing was discontinued the next morning, April 5.

The 8(a)(1) violations involve what were found to be threats, coercive interrogations, and promises. The day (March 11th) following the meeting at the home of Geraldine Creech was, as noted above, a day of great unionizing activity. In Plant Engineer Noto’s words “. . .a big beehive of something was up.” Mr. Misiura questioned employees Lavern Creech and Emmett Cope as to whether or not they had signed union cards. He also asked whether Ronnie Hurst was acting in the effort at unionization, learned that he was, and that Creech, Hickman, and the temporary girls were interested in the union movement. Misiura later called in Horst, questioned him regarding his union views, asked if he had signed a card, and requested his cooperation in reporting on the union activities of other employees. Mr. Noto also questioned his subordinates concerning the union cards, stated that if a union got in, the Company “would not provide as many benefits.” In addition, he reminded employee Winter that he was still a temporary employee and not permanent and, in addition, that with a union there would be loss of certain benefits.

In addition it was found that the Company, on March 16th, granted wage increases to Class II personnel, in a hasty action attempting to demonstrate the lack of need for union representation and to discourage the organizing efforts then going on. Grants of additional wage increases and other benefits were also found to have been made during the strike for the same purposes. Subsequent to the strike it was found that Jerry Creech had not only been assigned new and different work, intended to hamper her on-going union activities, but that her work (and that of Oscar Westoff) had been criticized in a manner intended to warn them of the Company’s disapproval of their active roles during the strike.

It was also found that the Company had been guilty of anti-union discrimination in violation of Section 8(a)(3) and (1) of the Act in the discharge of employees Creech and Hickman, who had been active in the organizing activities. Similar violation was found in the layoffs of Temporary Class II women (who had been particularly critical of their pay differentials) on both March 11 and March 16, for the purpose, it was found, of presenting an object lesson to other employees of serious adverse consequences attendant upon adherence to the union movement. The Company’s refusal to rehire James Floyd stemmed, it was found, also from his joining in the strike. An additional result of the strike, it was found, was the Company’s continuing discrimination, in violation of Section 8(a)(3) and (1) of the Act, against Temporary Class II women after the strike, in that they were not fully reinstated to their former positions.

Violation of Section 8(a)(5) and (1) of the Act was found in the Company’s refusal to bargain collectively with Local 682. The Union alleged in the complaint, as amended, consisting essentially of all warehouse and maintenance employees, was found to be an appropriate unit. We have heretofore summarized the circumstances of the meeting between Misiura, Noto, Walla, and Parrino, at which time, the Trial Examiner found, there was a “summary rejection” of Walla’s request for recognition.

To most of the above the Company, in the course of extensive proceedings before the Trial Examiner, offered various explanations. As to conversations held, and which were found to be coercive and restraining, the version of its witnesses was often at direct variance with the version of the union witnesses. Thus, as to the Misiura-Cope-Creech meeting on March 11, which the Examiner has interpreted as coercive, it is argued that the matter of the union cards came out, not through probing by Misiura, but as volunteered by the employees, and that such discussion, including Horst’s “pushing for the Union,” in the context of the entire conversation, did not descend to the level of coercive interrogation. Similarly with respect to the Noto-Mozier-Coose discussion of the same date. The references to cards, it is agreed, came up in the course of an hour and forty minute conversation in which many other matters were discussed. The inquiries as to cards was said to be casual, and at no time were coercive threats made. As to the NotoWinter conversation, with its alleged reminder to Winter that he was only a temporary employee, the Company argues that Winter had in fact been made permanent, and to his knowledge, days before the conversation and hence his testimony was confused and unreliable.

The discrimination allegedly practiced against the temporary employees in their March 11 lay-off is sought to be justified on the ground that critical electronic equipment on which these employees relied (to keep them supplied with orders) was broken down, with the result that the Company could not employ their services. Routine business operation was also the evidence adduced as to the March 16 increase in pay, it being argued, with supporting testimony, that the pay differential involved had been under study for some time, and that home office approval of the increase had not been received by Misiura until March 15th, and hence the pay increase, involving a fundamental change in pay structure, simply could not have been a spontaneous reaction to Walla’s claim.

We think it would serve no useful purpose to further elaborate upon the pro’s and con’s of these various incidents. We are not called upon to weigh the testimony, to array charge against explanation. Our problem, rather, is whether there is substantial evidence in the record as a whole to support the Board’s determinations, bearing in mind that it may draw reasonable and fair inferences from the evidence it finds to be creditable. Arbie Mineral Feed Co. v. N.L.R.B., 438 F.2d 940 (8th Cir. 1971). Mindful of the teachings of Universal Camera Co. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), we have carefully reviewed the entire record and are left with the firm conviction that the Board’s findings as to the 8(a)(1) and (3) violations are supported by substantial evidence.

We now turn to the bargaining order. It was the order of the Board, affirming the Trial Examiner’s rulings, findings, and conclusions, and adopting (with slight modifications) his recommended order, that “The Respondent, Harper & Row Publishers, . . . shall

“(f) Upon request, recognize and bargain collectively with the above-named labor organization, as the exclusive representative of all employees in the appropriate unit stated in the Conclusions of Law above with respect to rates of pay, wages, hours of employment and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement.”

The Trial Examiner had concluded that “. . . the Respondent’s all-pervasive unfair labor practices precluded its employees from exercising a free choice in an election . . . ” The Company vigorously contends that such conclusion is unjustified on the record and the bargaining order likewise unsupported thereon.

Our guidelines is this area are found in N.L.R.B. v. Gissel Packing Co., supra. Particularly pertinent for our present problems is the Court’s holding that

“It is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act (29 U.S.C. § 160(c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts.” 395 U.S. at 612, n. 32, 89 S. Ct. at 1939.

We take it, however, that the Court’s emphasis, thus stated, was not intended to overrule its well-known statement in Universal Camera Co. v. N.L.R.B., supra, that “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function” in order to do justice between the parties and thus . fulfill their ultimate responsibilities. N.L.R.B. v. General Stencils, Inc., 438 F.2d 894 (2nd Cir. 1971).

Although the Company, as we have noted, raised various defenses and objections to the cards, we find that there is substantial evidence to support the Board’s view that the union represented a majority of the appropriate bargaining unit at the time it demanded recognition. That there were numerous unfair labor practices is clear. The employer obviously did not want a union in the plant. But what is not clear upon the record, far from there being substantial evidence thereof, is that these practices had any undermining effect, indeed, any demonstrable effect upon unionization, or would have upon the election machinery.

It has been established that the union had a majority on March 16th. Prior to this date had occurred the Mozier-Noto conversation, the Winter incident, the Misiura-Cope-Creech coercion, the layoff of March 11th, and the discharges of Creech and Hickman. The wage increases to Class II personnel, constituting interference and restraint, occurred on March 16th. The record is barren of any erosion of union support by company action subsequent to its attainment of a majority. In fact the record demands the opposite conclusion: additional authorization cards were signed on the day after the strike, picket lines of 10 or 12 people were “up at all times,” meetings were held, in fact one in a large meeting hall in the neighboring town of Wentzville. There is thus affirmative evidence that the unfair practices did not undermine the union majority and it is significant to us in appraising the causal connection between unfair practices and union erosion, N.L.R.B. v. Drives, Inc., 440 F.2d 354 (7th Cir. 1971) that the unfair practices preceded in large part of the successful card signing campaign. “Evidently”, as the court observed in N.L.R.B. v. General Stencils, supra, “the American working man who wants a union has enough sturdiness and sufficient confidence in the union’s ability to protect him that he is not cowed by employer threats . . . ”.

The situation before us is essentially that described in our opinion in Arbie Mineral Feed Co. v. N.L.R.B., supra, where, in ruling upon the bargaining order there before us we held

“(3) Where the evidence establishes that the unfair labor practices produced little or no impact upon the employees’ allegiance to the union, we deny enforcement.” 438 F.2d at 945.

An additional problem, however, with respect to the enforcement of the bargaining order is presented by the events of March 29th. As a result of discussion within Joint Council No. 13 of the Teamsters (a council of all the Teamsters’ Locals in the St. Louis area) it had been decided that Local 688 was a more appropriate local to represent the warehouse workers than Local 682, which had obtained the authorization cards and had requested recognition.

Accordingly Local 682 scheduled a meeting of the Company employees in Wentzville on the night of March 29th. This meeting was attended by 32 employees and presided over by President Walla of Local 682. He explained that the work of the Company’s employees was not within the jurisdiction of Local 682, a construction local, that Local 688, which customarily represented warehouse employees, could represent them better, that Local 682 had a high dues structure but that the Company’s employees, who were on a lower wage schedule, would be paying the same dues, presenting a situation which would breed dissatisfaction. The matter was put to a vote, the majority voted to go into Local 688, sign their authorization cards, and the meeting was turned over to Mr. Dunn, an organizer for Local 688. Mr. Dunn generally supported President Walla’s analysis of the situation respecting the two unions. Cards were passed out before the meeting adjourned and all employees present signed with Local 688. The result of the meeting was clearly an affiliation with Local 688. As President Walla put it “When they voted they knew they were going with 688.” Anthony Parrino, business agent for Local 682, expressed the same understanding, namely, that Local 688 was to take over the representation, “that’s what the meeting was about.”

Local 688, however, did not want the Company’s employees. The Executive Officer of Local 688, Mr. Gibbons, notified Walla that they (688) were not interested in representing the Harper & Row people. Walla replied to Gibbons that Local 682 would never again relinquish jurisdiction over the employees concerned. Another meeting of the employees was then called by Walla. They were informed of the most recent development and that Local 682 would be representing them, would “take them all the way through now.” There was no vote at the meeting. No cards reinvesting Local 682 with authority were signed and Local 688 faded out of the picture. The strike continued, using Local 682 materials on the picket lines.

The Board, however, has held, adopting the Trial Examiner’s bargaining order, that Local 682 never lost its majority status through the foregoing, stating that “we would take a different view, however, had the employees abandoned 682 and made a genuine and unconditional shift to another union.” The reference to “unconditional” is apparently upon the theory that the shift over to Local 688 was upon a condition, namely, that Local 688 actually take over as the bargaining agent. The Board apparently relies here upon the testimony of one William Schneider, described as a representative of Teamsters Joint Council 13, who in turn quotes Mike Dunn, a representative of Local 688, as having so told the meeting. But accepting that the remark was in fact made, it was no more than a remark. There was no discussion thereof, nothing hinged on it, no warning to the membership of their situation should the take-over not occur, and, significantly, there is no mention of, or allusion to, in the minutes of the meeting of this remark, now asserted to govern, in legal effect, the entire situation as a condition subsequent. It is abundantly clear on the record, of course, that Local 688 never did take over. But it is equally clear that the employees made a genuine and unconditional shift to Local 688 and there is no substantial evidence that they did so upon condition subsequent. What actually happened simply was that the membership was talked out of Local 682 by its President and signed up with Local 688, only to be rejected a few days later by the Local of their new affiliation. In this unusual situation, peculiarly appropriate is the admonition in Gissel, supra, that once having a union majority, together with employer unfair practice, “effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.” (395 U.S. at 614, 89 S.Ct. at 1940) Here the union majority was not lost through the Company’s unlawful practices but through voluntary disaffiliation by the employees themselves. The employee free choice, upon the peculiar facts of this case, should not be held to rest upon the card authorizations of March 16th.

We have examined the remaining issues argued by the parties and find that they are either without merit or controlled by the foregoing.

In sum, we deny enforcement of the bargaining order. In all other respects the order of the Board is enforced.

      . The full name of the Union is Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen, Yardmen and Allied Workers — Local Union 682. It is an Affiliate or Constituent Unit of the International Brotherhood of Teamsters, Chauffeurs, AVarehousemen and Helpers of America.

      . The Order is reported at 196 N.L.R.B. No. 50.

      . Upon its opening in May, 1970, the Company set up two major hiring classifications, Class I and Class II. Class I, a higher pay bracket, consisted of men performing heavier work and Class II was largely composed of women doing lighter work. Within each class there were both “temporary” and “permanent” employees, the latter enjoying higher pay and benefits not granted to the temporary emjdoyees.

      . The Chairman did not agree with the balance of the panel that the Company discriminated against striking employees by adoption of a new wage increase schedule.

      . The Company argues that Local 6S2’s request for bargaining included office clerical employees, a unit not appropriate for collective bargaining, which inclusion also constituted a variance between the unit with respect to which bargaining was requested and that alleged in the complaint as amended to be the appropriate unit. The objection is not well taken, we agree, in view of the fact that the Company failed to ground its refusal to bargain on this basis, Colecraft Mfg. Co. v. N.L.R.B., 385 F.2d 998 (7th Cir.). Moreover the variance was insubstantial. Brewery and Beverage Drivers Local No. 67 v. N.L.R.B., 257 F.2d 194 (D.C.Cir.1958).

      . Ap. 92-93

      . Ap. 90

      . App. 205

      . App. 217

      . App. 227

      . fn. 2, App. 127-128


author: FEINBERG, Circuit Judge:

text:
    Edmund R. STEINMAN, Plaintiff-Appellant, v. SPECTOR FREIGHT SYSTEM, INC., et al., Defendants-Appellees.
    No. 512, Docket 72-2014.
    United States Court of Appeals, Second Circuit.
    Argued March 19, 1973.
    Decided April 9, 1973.

      Walter J. Brinson, Kenmore, N. Y., for plaintiff-appellant.
    Francis F. Sulley, Chicago, Ill. (Vedder, Price, Kaufman & Kammholz, John P. Jacoby, Chicago, Ill., Flaherty, Cohen & Grande, Buffalo, N. Y., on the brief), for defendant-appellee Spector Freight System, Inc.
    Paul A. Crotty, Buffalo, N. Y. (McMahon & Crotty, Joseph M. Crotty, Buffalo, N. Y., on the brief), for defendantappellee Truck Drivers Local No. 449.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   FEINBERG, Circuit Judge:

On the first appeal in this litigation, we reversed an order of the United States District Court for the Western District of New York, which had granted summary judgment to defendants Spec-tor Freight System, Inc. and Truck Drivers Local No. 449, and we remanded the case for further proceedings. 441 F.2d 599 (1971). Familiarity with our prior opinion will be assumed. Upon remand, Judge John T. Curtin decided to put aside the breach of contract question until he had first tried the issue whether defendant Local 449 had breached its duty of fair representation to plaintiff Edmund R. Steinman in presenting his case in a grievance proceeding initiated by him after his discharge in September 1966. A non-jury trial was held on this issue, at which seven witnesses testified. Thereafter, the judge found that plaintiff had not proved that Local 449 had failed to represent him fairly on his 1966 grievance, and ordered judgment for both defendants.

Appellant Steinman argues that the procedure followed by Judge Curtin was improper under our earlier opinion. It is true that we there emphasized that plaintiff had not yet received a fair hearing on the merits of his grievance, to which he was entitled. But we did so in the context of the issue then before us, which arose as follows. In March 1968, a National Labor Relations Board trial examiner found that Local 449 had failed to represent Steinman fairly in the proceeding before the Joint State Grievance Committee, in which Stein-man had been unsuccessful on the merits. As a result of the trial examiner’s order, Local 449 asked the State Committee, and ultimately the Eastern Conference Joint Area Committee, to grant Stein-man a rehearing, but this was refused. In Steinman’s subsequent suit under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, Judge Cur-tin granted summary judgment for defendants on the theory that the denial of a rehearing by the State and Area Committees barred the court action. It was in that context that we held on the prior appeal that summary judgment was improper; Steinman was not barred from pursuing his action because he was entitled to a fair hearing on the merits somewhere, and there was no proof on the record as it then was that he had received such a hearing.

The record before us on this appeal is entirely different. Judge Curtin has now ruled that Steinman did get a fair hearing in the original proceeding before the State Committee. Contrary to appellant’s only argument to us, our prior opinion did not prevent the judge from trying the fair representation issue first. The defense that Local 449 actually had represented Steinman fairly was raised in both Spector’s and the Local’s answer. Because of the prior summary judgment, that issue had never been tried in the district court. We expressly noted in our prior opinion that “we are not passing upon any other defenses to plaintiff’s suit that may be raised by Spector or Local 449.” 441 F.2d at 604 n. 9. Certainly, under Vaca v. Sipes, 386 U.S. 171, 186-187, 196, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the judge could choose to hear the issue of fair representation first. As for the effect on this litigation of the trial examiner’s earlier decision, his finding of inadequate representation was certainly not binding on Spector, which was not a party to the unfair labor practice proceeding. Strip Clean Floor Refinishing v. New York District Council No. 9, 333 F.Supp. 385, 392 (E.D.N.Y.1971); 2 K. Davis, Administrative Law Treatise § 18.05 (1958); cf. Old Dutch Farms, Inc. v. Milk Drivers Local 584, 359 F.2d 598, 603 n. 7 (2d Cir.), cert. denied, 385 U.S. 832, 87 S.Ct. 71, 17 L.Ed.2d 67 (1966). The wisdom of the identity-of-parties requirement is demonstrated in this case, because Spector, at the trial on remand, was able to produce additional evidence and thus provide a much more complete record than apparently had been available to the trial examiner. The question whether the trial examiner’s finding was binding on Local 449 in this action was not raised below after remand and is not pressed before us.

Finally, appellant does not claim that Judge Curtin’s findings on the question whether Local 449 had fairly represented Steinman are clearly erroneous. This shows good judgment, for the judge’s careful 14-page opinion on the merits of that issue is quite persuasive.

The judgment of the district court is affirmed.

      . Steinman v. Spector Freight System, Inc., Civil No. 1968-341 (W.D.N.Y. Feb. 16, 1972).

      . After remand, appellant did not object to Judge Curtin’s separate trial order when it was first entered, Steinman v. Spector Freight System, Inc., Civil No. 1968-341 (W.D.N.Y. Sept. 27, 1971), or even when appellant filed his trial memorandum. In fact, appellant’s first such objection came after he had rested his case, and this was not only tardy but vague.

      . The trial examiner relied principally upon the fact that the union representative had not apprised the State Grievance Committee of Steinman’s prior opposition to Spector’s layover rules and had not even attempted to introduce the minutes of Steinman’s 1965 grievance proceeding. In contrast, Judge Curtin noted: “The State Committee had a copy of the minutes of plaintiff’s 1965 case and was fully aware of plaintiff’s complaints about the Richfield dispatch procedures.” Steinman v. Spector Freight System, Inc., supra note 1, at 10.

      . Steinman’s complaint also contained a claim for unpaid layover wages. It is quite clear from Judge Curtin’s opinion that plaintiff did not meet his burden of showing that “pressing a grievance would have been futile.” 441 F.2d at 604.


author: PER CURIAM:

text:
    John W. DeWALT, Petitioner-Appellant, v. COMMANDING OFFICER, FORT BENNING, GA., et al., Respondents-Appellees.
    No. 72-2575.
    United States Court of Appeals, Fifth Circuit.
    April 13, 1973.

      M. C. Mykel, Atlanta, Ga., for petitioner-appellant.
    William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for respondents-appellees.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   PER CURIAM:

Petitioner, a 1st Lieutenant in the United States Army, seeks release from military service as a conscientious objector. The Army rejected his claim. The District Court dismissed his petition for writ of habeas corpus. We affirm.

The sole question is whether there was a sufficient factual basis to support the Army’s denial of petitioner’s request for discharge as a conscientious objector. From our study of the record, we conclude the District Court properly determined that the Army’s disposition of petitioner’s request was substantiated by the facts.

While at Wheaton College (Illinois), John DeWalt enrolled in the compulsory two-year Reserve Officers Training Corps (R.O.T.C.) program and then continued his military studies in the elective, advanced program for two years. Upon graduation, he accepted a commission as a lieutenant in the United States Army and reported for active duty in November, 1969. He completed basic and advanced infantry training, flight school and additional preparation for combat assignments. Orders for Viet Nam duty were delayed to permit him to further his training.

Not until April 1971, after receiving final orders for a Viet Nam assignment, did petitioner apply for discharge from the Army as a conscientious objector. Completing all requirements of the comprehensive application pursuant to Army Regulations 635-20, DeWalt asserted that his opposition to war in any form resulted from family and church teachings, college philosophy and religion courses, related reading, and his experiences in military service. Supporting letters attested to the sincerity of his convictions.

DeWalt was interviewed by his commanding officer, a field grade officer, a chaplain, and a psychiatrist. The commanding officer, recommending disapproval of the request, did not doubt DeWalt’s sincerity, but questioned his judgment in accepting costly military training while doubting whether he could serve his country in combat. The field-grade hearing officer shared this view, emphasizing the impact of the imminence of Viet Nam duty on petitioner’s thinking. The chaplain found petitioner’s objections to military service to be sincere and recommended approval of his claim. The psychiatrist offered no medical contradictions to this conclusion.

The Department of the Army returned DeWalt’s application to his commanding and hearing officers for further remarks concerning the depth and sincerity of petitioner’s convictions. Both officers reiterated their observations that petitioner’s convictions and request were sincere, but emphasized their impressions that his position was not carefully reasoned. They thought DeWalt was more concerned with his discharge from service than either his commitment to the Army or the fact that another man with similar training would have to undertake combat duty in his stead. The Department of the Army then denied DeWalt’s request upon the ground that his professed views were not truly held.

Subsequent to the District Court’s dismissal of this petition for habeas corpus, petitioner was granted an injunction from being removed outside the continental United States until final disposition of this appeal.

Discharge from military service is available only because of a privilege granted by the executive branch of the federal government and not as a constitutional right. See In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945); United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931). That privilege is based upon regulations reflecting the Supreme Court’s standards for conscientious objection. Army Regulation, 635-20, par. 3; Army Regulation 614-106, par. 26(2); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

To qualify for discharge from military service as a conscientious objector, an applicant must satisfy the same criteria as one seeking draft classification as a conscientious objector:

(1) That he is opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971);

(2) That his objection is grounded in deeply held moral, ethical, or religious beliefs, Welsh v. United States, supra; and

(3) That his convictions are sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955).

The Army cannot merely disbelieve an applicant for conscientious objector discharge if his case is prima facie, see Rothfuss v. Resor, 443 F.2d 554 (5th Cir. 1971), but must have a basis in fact for denial. See United States v. Henderson, 411 F.2d 224 (5th Cir. 1969). The review of the Army decision is one of the narrowest known to the law. See Blalock v. United States, 247 F.2d 615 (4th Cir. 1957). The task of this Court is not to impose its own views of human nature upon the Army’s conclusion, but to determine whether that conclusion is supported by fact. Because the test of sincerity is necessarily subjective, therefore, any facts which east doubt on DeWalt’s sincerity are relevant to the inquiry and may support the Army’s denial of his request.

We conclude that there is such a basis in fact for the Army’s denial of DeWalt’s request. Having applied for and accepted extensive combat training, petitioner did not seek a discharge until war zone duty was imminent. An applicant’s timing in filing for discharge has often been seen to cast doubt on his sincerity. See Rothfuss v. Resor, supra; United States v. Henderson, supra.

The reports of petitioner’s commanding and hearing officers emphasized that only after he obtained extensive military assistance or financial education and training did he elect to file for conscientious objector status. The officers further indicated that they were convinced more of his sincerity in desiring discharge from the Army than the genuineness of his pacifist inclinations. While in July, 1970, DeWalt qualified as an expert with both the M-16 rifle and the .38 caliber pistol, he sought to be excused on conscientious grounds from weapons qualification less than a year later, after his application for discharge.

Moreover, nowhere in the record does petitioner suggest the manner in which his studies or reading directed his decision to apply for discharge. He admits that none of his religious training prior to military experience taught that all wars are immoral. See Cohen v. Laird, 439 F.2d 866 (4th Cir. 1971); Speer v. Hedrick, 419 F.2d 804 (9th Cir. 1969).

We conclude, consequently, that the Army’s denial of petitioner’s request was supported by fact.

Affirmed.


author: WINTER, Circuit Judge:

text:
    Virginia BLACKWELL et al., Appellants, v. C. C. THOMAS, Jr., et al., Appellees. S. J. VANDROSS et al., Appellants, v. W. Marvin LANE et al., Appellees.
    Nos. 72-2097, 72-2065.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 11, 1973.
    Decided April 3, 1973.
    Laughlin McDonald, Columbia, S. C. and Neil Bradley, Atlanta, Ga. (Charles Morgan, Jr., Norman Siegel and Morris Brown, Atlanta, Ga., on brief), for appellants in Nos. 72-2065 and 72-2097.
    Alexander S. Macaulay, Asst. Atty. Gen. (Daniel R. McLeod, Atty. Gen. of South Carolina, Malcolm C. Woods, Jr., Marion County Atty., on brief), for appellees in No. 72-2065.
    Donald V. Myers, Asst. Atty. Gen. of South Carolina (Daniel R. McLeod, Atty. Gen., and Alexander S. Macaulay, Asst. Atty. Gen., of South Carolina, on brief), for appellees in No. 72-2097.
    Before WINTER, CRAVEN and FIELD, Circuit Judges.
   WINTER, Circuit Judge:

In two class actions, the contention that women and blacks were systematically excluded from grand and petit juries in Dillon and Marion Counties, South Carolina, respectively, was asserted. In No. 72-2097 (Blackwell v. Thomas, involving Dillon County), the district court dismissed the case as moot on the basis of stipulated facts. In No. 72-2065 (Vandross v. Lane, involving Marion County), the district court gave judgment for defendants on the ground that plaintiffs had failed to make out a prima, facie case of discrimination. The appeals were briefed and argued seriatim, but since they involve common questions of law, we decide them together. In No. 72-2097 (Dillon County), we affirm. In No. 72-2065 (Marion County), we vacate the judgment and remand for further proceedings.

I.

Both cases involve South Carolina’s jury selection scheme, the statutory basis of which passed constitutional muster in Franklin v. South Carolina, 218 U.S. 161, 30 S.Ct. 640, 54 L.Ed. 980 (1910). See also Carter v. Green County, 396 U.S. 320, 334-335, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). By virtue of § 38-52, Code of Laws of South Carolina (1971 Cum.Supp.), the jury commissioners of each county must prepare annually a list of electors, between the ages of twenty-one and sixty-five, “of good moral character” and free from all legal exception, from which jurors are drawn. § 38-61, Code of Laws of South Carolina (1962 Ed.). While § 38-52 requires only that “not less than two from every three of such electors qualified” shall be included on the jury list from which jurors are drawn, the statute is silent as to when, in what manner, and by whom the reduction in number is to be made if the commissioners conclude to use less than the whole. Since there is no fixed neutral formula for a reduction in numbers, there may or may not be deliberate or inadvertent systematic exclusion depending upon how the statute is administered in various counties of the state.

II.

No. 72-2097

The statistics stipulated in Blackwell disclosed a “substantial disparity” between the portion of presumptively qualified blacks and women and the number of representatives of these two groups who actually served on juries in Dillon County from 1969 through June, 1971. Since this disparity coincided with the opportunity for discrimination inherent in the South Carolina statute, a prima facie case would have been established so that the state would have the burden of explaining how the disparity occurred and proving that it was not the result of actual discrimination. Stephens v. Cox, 449 F.2d 657 (4 Cir. 1971).

However, after plaintiffs filed their complaint in Blackwell, the Solicitor of Dillon County petitioned Judge James A. Spruill, Jr., of South Carolina’s Fourth Judicial Circuit, for an order requiring that a new jury list be prepared. This relief was sought because new yearly lists had not been prepared in December, 1969 and December, 1970, as required by state law. Judge Spruill granted relief and ordered the preparation of a new list.

It was stipulated that this new list was prepared by the county’s jury commissioner ;

. . . using the most current registration list of electors between the ages of twenty-one and sixty-five years. Said registration list reflected a total of approximately 6,269 such electors in Dillon County, of whom 4,469 (71%) were white, 1,800 (29%) were nonwhite, 2,988 (48%) were male, and 3,281 (52%) were female. The new jury list was comprised of all those names appearing on that registration list. A copy of the new jury list was then prepared so that each individual name could be inserted into a separate capsule of the type appended hereto and made a part hereof, and each of those capsules thus prepared was placed in the new jury box. (emphasis added).

Since the box from which the grand jury and petit juries were drawn contained the names of all of the electors of Dillon County, no opportunity to discriminate existed; and, not surprisingly, the petit jury panels drawn for the rest of 1971 consisted of 27% blacks and 42% women, and the grand jury consisted of 22% blacks and 55% women.

We agree with the district court that, as a result of the selection procedure actually followed and the statistical result which obtained with reference to the new list, no justiciable case or controversy remained to be settled. Plaintiffs, however, contend that equitable relief should have nevertheless been granted to insure against systematic exclusion in the future selection of jurors in Dillon County. Nothing in the statutory scheme, they point out, mandates that the names of all registered voters be placed in the jury box from which jury lists are drawn; nor can it be said with absolute certainty that the pre-June 1971 pattern of discrimination will not reappear.

S.E.C. v. Medical Committee for Human Rights, 404 U.S. 403, 406-407, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); United States v. Phosphate Export Asso., 393 U.S. 199, 202-204, 89 S.Ct. 361, 21 L. Ed.2d 344 (1968); and United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) govern our ruling with respect to this contention. They establish the proposition that voluntary cessation of illegal conduct may render a claim for equitable relief moot, but only “if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Phosphate Export Asso., 393 U.S. at 203, 89 S.Ct. at 364. Without that assurance the case will not be moot, because “[t]he defendant is free to return to his old ways.” W. T. Grant Co., 345 U.S. at 632, 73 S.Ct. at 897.

Whatever discrimination may have been practiced in the selection of juries in Dillon County prior to June 1971, it is evident that prompt and effective corrective action was achieved by the intervention of a state judicial officer as soon as deficiencies were brought to his attention. In this regard, it is not without significance that prior to the filing of plaintiffs’ suit in the district court, neither plaintiffs nor anyone else sought corrective action in the state court. In the light of these facts, we cannot hypothesize that either the jury commissioners will not comply strictly with state law in the future as they have been directed to do by a state judge, or that the state judiciary will not immediately rectify any discrimination in the selection of future juries if complaint is made to them. Since we conclude that there is no “cognizable danger of recurrent violation,” W. T. Grant Co., 345 U.S. at 633, 73 S.Ct. at 898, we think the case is moot, and we affirm its dismissal by the district court.

III.

No. 72-2065

The jury selection procedures in Marion County have never been the subject of state court investigation and possible state court corrective action. Although the district court found that jurors were selected from all qualified electors of the county and predicated its opinion on that finding, the record is devoid of any evidence or stipulated fact to support it. Thus, the case comes to us with the questions unanswered as to whether the jury commissioners exercised their statutory authority to select the names of two out of three electors to place in the box from which jurors are drawn, and if so, how the selection was made. It is conceded that the voting lists showing names of electors which were furnished them contained racial designations. We must therefore consider the case as one in which deliberate or inadvertent systematic exclusion might have occurred since, as we have noted, (a) the South Carolina statute requires that only the names of two out of three electors shall be used and makes no provision as to how the reduction is to be made, and (b) the lists of electors furnished to the jury commissioners contained racial designations.

In Marion County, blacks comprise 51% of the aggregate population, 44% of the population between the ages of twenty-one and sixty-five, and 41% of the registered voters. Women comprise 53% of the aggregate population and 54% of the population between the ages of twenty-one and sixty-five. The percentage of women among registered voters is apparently unknown.

The membership of the 1970 grand jury was 22% black and 28% women. The membership of the 1971 grand jury was 33% black and 28% women, while that of the 1972 grand jury was 28% black and 33% women. With regard to membership of petit juries, in 1970, 35% were black and 52% were women; in 1971, 32% were black and 53% were women; and in 1972, 29% were black and 52% were women. Thus, while the percentage of women on petit juries throughout the period was almost exactly the same as the percentage of women in the aggregate population and the population between the ages of twenty-one and sixty-five (the only figures with which a comparison can be made), there was a not insubstantial deviation of blacks on grand and petit juries throughout the period compared to the percentage of blacks among registered voters of the county. Particularly with respect to petit juries, the underrepresentation of blacks became progressively more marked from year to year within the three-year period.

The district court relied on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) in concluding that the underrepresentation of blacks and women was not sufficient to prove racial discrimination; and on its authority, defendants urge us to find that there was not a “substantial disparity” so as to warrant relief or even further investigation. As to women, we agree that the disparity was, not substantial, even though we do not know the percentage of women among the electorate. With respect to blacks, we conclude otherwise. As to them, the stipulated underrepresentations of 6% in 1970, 9% in 1971, and 12% in 1972 are not insubstantial, although we do not presently conclude that they constitute a “substantial disparity.” While Swain concluded, on the facts of that case, that “[w]e cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%,” 380 U.S. at 208-209, 85 S.Ct. at 829, Swain was not a case in which the same opportunity for exclusion as exists under the South Carolina jury selection statutes was present. Where, as here, the opportunity for systematic exclusion exists, we think the disparity sufficiently great to warrant an evidentiary exploration of how the jury selection statutes are administered to see if the two elements which would warrant relief under Stephens v. Cox, supra, coalesced. We will vacate the judgment and remand for that purpose.

Affirmed in No. 72-2097; vacated and remanded in No. 72-2065.

      . § 38-52. Jury lists. — The jury commissioners of each county shall, in the month of December of each year, prepare from the official enrollment books of qualified electors a list of such electors of their county, qualified under the provisions of the Constitution, between the ages of twenty-one and sixty-five years and of good moral character as they may deem otherwise well qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions. Such list shall include not less than two from every three of such electors qualified under the provisions of the Constitution, between the ages of twenty-one and sixty-five years and of good moral character, to be selected without regard to whether such persons live within five miles or more than five miles from the courthouse.

      . §§ 38-100 and 38-102, Code of Laws of South Carolina (1962 Éd. and 1971 Cum. Supp.) also provide for the disqualification of those convicted of certain crimes, as well as prescribe other grounds of disqualification.

      . The facts as stipulated show that blacks comprised 42% of the entire population, 34% of the population between the ages of twenty-one and sixty-five, and 29% of the registered voters of the county. Women comprised 52% of the entire population, 53% of the population between the ages of twenty-one and sixty-five and from 52 to 57% of the registered voters of the county. Petit juries for the years 1969 through June 1971, respectively, contained 10.5%, 7%, and 8.5% blacks and 21.5%, 29%, and 22.5% women. The representation of blacks and women on grand juries during the same period was similarly disproportionate when the actual representation was compared to total population, population between the ages of twenty-one and sixty-five, and registered voters.

      . The district court said :
      Since all the names on the list [of qualified voters] are used, the jury commissioners do not have the power to exercise any subjective judgment as to whose name goes into the jury box, and therefore there is no opportunity to reduce the representation of any race or group by deleting some of its members.

      . The district court did state, with respect to blacks, “since the percentage of. disparity has increased in the last three years, the jury commissioners should be alert to the possibility that if these percentages continued to increase, they may find themselves back before the Court.”
      In the closing paragraph of its opinion, the district court repeated:
      For the present time there has been no showing of racial discrimination or any illegality or impropriety in the handling of the jury system in Marion County and therefore this complaint must be dismissed. However, should the statistical variation continue to increase, as shown by the figures for the last three years, and there is any proof in the future of an opportunity for discrimination, the results of a similar case brought in the future might well be different.

      . For commentary critical of the Swam decision, see e. g. Finkelstein, The Application of Statistical Decision Theory to Jury Discrimination Cases, 80 Harv.L. Rev. 338 (1966); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-white Jury, 52 Va.L.Rev. 1157 (1966); Note, Fair Jury Selection Procedures, 75 Yale L.J. 322 (1965).

      . When Carter v. Jury Commissioner, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970) and Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) are closely studied, it is obvious that what constitutes a “substantial disparity” depends in large part upon the mechanism by which any disparity results. If the disparity proceeds from objective criteria, i. e., age, educational attainment, registration to vote, etc., the 10% test of Swain may be safely employed. But if the disparity proceeds from the application of subjective tests, under which there is wide opportunity for intentional racial discrimination, the tolerable disparity is diminished.