author: BELL, Circuit Judge:

text:
    Inalouise CATES et al., PlaintiffsAppellees, v. LTV AEROSPACE CORPORATION et al., Defendants. Department of the Navy, Defendant-Appellant.
    No. 72-2954.
    United States Court of Appeals, Fifth Circuit.
    June 26, 1973.

      Frank D. McCown, U. S. Atty., Dallas, Tex., for defendant-appellant.
    J. Carlisle DeHay, Jr., Dallas, Tex., for LTV.
    H. Dudley Chambers, Dallas, Tex., for McDonnell.
    Robert M. Greenberg, Dallas, Tex., Walter H. Fleischer, William D. Appler, Dept. of Justice, Washington, D. C., for Goodyear.
    James C. Barber, Dallas, Tex., John E. Collins, Irving, Tex., for plaintiffs-appellees.
    Before BELL, INGRAHAM and RONEY, Circuit Judges.
   BELL, Circuit Judge:

This case involves the validity of an order which required the Department of the Navy to produce an Aircraft Accident Report relating to the crash of a Navy plane in Okinawa. We are asked to determine on' this appeal a question of first impression: whether F.R.Civ.P. 30(b)(6) can be used to obtain documents in custody of the head of a non-party government agency in Washington, D. C. by service of a subpoena duces tecum upon a. local representative of the agency in Dallas, Texas. We conclude that it cannot be so used.

The proceedings which led to the lower court’s discovery order began when the widow and son of a Navy pilot, killed in the Okinawa plane crash, sued three private companies which manufactured the plane and certain of its parts. The Navy was not made a party to the lawsuit.

Plaintiffs attempted to obtain the Aircraft Accident Report through notice under Rule 30(b)(6), and a subpoena to which was attached a list of documents to be produced, in effect a subpoena duces tecum, directed to the Department of the Navy, but served upon the Commanding Officer of the Dallas Naval Air Station. The notice required the Department of the Navy to designate someone to appear for the taking of a deposition on April 3, 1972. The Aircraft Accident Report, which gives rise to the central issue, was one of the documents sought under the subpoena duces tecum.

In addition to the notice and subpoena directed to the Department of the Navy, a notice and the same request for documents were served upon the Navy plant representative at LTV Aerospace Corporation in Grand Prairie, Texas. (LTV was a defendant in the suit.)

On April 3 the Navy plant representative appeared but testified that he had no knowledge of the crash of the aircraft. A United States attorney appeared to present the Navy’s position, that F.R.Civ.P. 30(b)(6) could not be used to obtain the documents requested by plaintiffs.

Following the Navy’s failure to designate and produce documents, plaintiffs filed a motion requesting that the Navy be ordered to designate a person to testify to matters known or reasonably available to the Navy pursuant to Rule 30(b)(6). The Navy responded, again objecting to the procedure followed by plaintiffs, and asserting that a subpoena duces tecum must be directed to the person who has custody of the documents or in this case the Secretary of the Navy in Washington, D. C. Plaintiffs then filed an additional motion to compel discovery of the documents requested, including the Aircraft Accident Report.

On May 17, 1972 the district court found that the Navy had refused to designate a person to testify and had refused to comply with the subpoena duces tecum. Apparently rejecting the Navy’s objections to the procedure, the court granted plaintiffs’ motion to compel the discovery and ordered that the documents sought, including the Aircraft Accident Report, be produced.

On July 25, 1972 in a “Motion for Reconsideration” the Secretary of the Navy raised the doctrine of executive privilege and sought to have the court reverse its order. By this time, only the Aircraft Accident Report was involved. The court found that the claim of executive privilege came too late, and refused to change its previous ruling. This appeal followed.

For purposes of clarity, it is to be remembered that the real controversy was over the production of documents. However, the failure of the Navy to designate a person to testify is intermixed in that, and as will be seen, the Navy was in clear error in not so designating. This, however, is a peripheral question separate and apart from the issue of using Rule 30(b) (6) to obtain documents from a non-party where the documents are outside the jurisdiction of the court.

I.

Initially it should be noted that discovery orders are generally not appealable. See 8 Wright and Miller, Federal Practice and Procedure: Civil § 2006 (1970). However, discovery orders may be appealable when an executive privilege is involved and the executive or governmental agency is not a party to the lawsuit. Carr v. Monroe Manufacturing Co., 5 Cir., 1970, 431 F.2d 384, 387; Caswell v. Manhattan Fire & Marine Ins. Co., 5 Cir., 1968, 399 F.2d 417, 422; Overby v. United States Fidelity & Guaranty Co., 5 Cir., 1955, 224 F.2d 158, 162. The theory of allowing an appeal rests on the proposition that forced disclosure would irretrievably breach the claim of privilege and render an appeal from final judgment meaningless; hence, the exception. We hold that the order to produce the Aircraft Accident Report is appealable because of the claim of executive privilege. Given this conclusion, we proceed to an examination of the entire proceedings relating to the effort to obtain the Aircraft Accident Report.

II.

We consider first the question of the reach of Rule 30(b)(6) in combination with a subpoena duces tecum. This requires an in pari materia consideration of Rule 45(d)(2), which ordinarily fixes the territorial limits of deposition subpoenas.

The subpoena duces tecum here was directed to the “Department of the Navy” but served upon the Commanding Officer of the Dallas Naval Air Station. The executive head of the Department of the Navy is located in Washington, D. C. The plane crash occurred in Okinawa. The Aircraft Accident Report was located at the Naval Safety Center in Norfolk, Virginia. There was no connection between the Commanding Officer of the Dallas Air Station and the plane crash or the accident report.

The documents in question were in the custody of the Secretary of the Navy in Washington, D. C. although located at Norfolk. The applicable Naval Regulations require a discovering party to seek the Aircraft Accident Report from the Secretary. These regulations, requiring personal service on a departmental head, are designed to centralize the determination of whether a subpoena duces tecum will be obeyed or challenged on the grounds of privilege. See United States ex rel. Touhy v. Ragen, 1951, 340 U.S. 462, 468, 71 S.Ct. 416, 95 L.Ed. 417; Boske v. Comingore, 1900, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Saunders v. Great Western Sugar Co., 10 Cir., 1968, 396 F.2d 794. Cf. Machin v. Zuckert, 1963, 114 U.S.App.D.C. 335, 316 F.2d 336. (Suit brought in New York involving an Air Force plane crash-subpoena duces tecum seeking accident report was served upon Secretary of Air Force in Washington, D. C.)

This type of regulation is adverted to by Professors Wright and Miller:

“ . . .in private litigation, to which the government is not a party, it is apparently still necessary to seek the documents from the head of the department rather than from a subordinate if the regulations so provide”. 8 Wright and Miller, Federal Practice and Procedure Civil § 2019, p. 166.

Plaintiffs argue that service on the Department Secretary is no longer necessary if the Rule 30(b)(6) procedure is followed. Plaintiffs also contend that under Rule 30(b)(6), a person designated by an agency may be required to attend a deposition and produce documents in a foreign judicial district despite the requirements of F.R.Civ.P. 45(d)(2).

We find no indication either in the language of Rule 30(b) (6) or in the Advisory Committee Notes, that the rule can be used to require a non-party to produce in one judicial district documents in the custody of the head of the organization located in another judicial district. Rule 30(b)(6) was designed as an optional discovery device to supplement “the existing practice whereby the examining party designates the corporate [or agency] official to be deposed.” Advisory Committee Notes to Rule 30(b)(6), 48 F.R.D. at 515. The purposes of the amendment were stated as (1) reducing the difficulty in determining whether a person deposed is a managing agent, (2) curbing the “bandying” by which various officers of a corporation are deposed, in turn, but each disclaims knowledge of facts that are clearly known by someone in the organization, (3) protecting the corporation or agency by eliminating unnecessary and unproductive depositions. Advisory Committee Notes to Rule 30(b)(6), 48 F.R.D. at 515.

We find nothing in Rule 30(b) (6) which would vest a court issuing a subpoena with the power to require that documents, in the custody or control of the head of an agency located outside the judicial district, be brought into the judicial district. Similarly, a person designated by an organization pursuant to Rule 30(b)(6) could not be required to travel outside of the limits imposed by Rule 45(d)(2). In short, Rule 30(b)(6) provides a procedure to use in determining the proper person to depose. It does not deal with the issue of where the deposition is to be taken or where documents are to be produced. This is reserved to Rule 45(d)(2). We therefore conclude that Rule 30(b)(6) cannot be used to require the production of the Aircraft Accident Report in Dallas.

Moreover, there is authority that under traditional notions of power and jurisdiction, a court cannot order production of records in the custody and control of a non-party located in a foreign judicial district. See Chessman v. Teets, 9 Cir., 1956, 239 F.2d 205, 213; Elder-Beerman Stores Corp. v. Federated Dept. Stores, Inc., S.D.N.Y., 1968, 45 F.R.D. 515, 518.

III.

This leaves for decision the question whether the Navy improperly refused, under Rule 30(b)(6), to designate a person to testify at the deposition. The Navy failed and refused to designate at a time when it appeared that a witness was to be deposed in fact. It is now evident, of course, that deposition testimony was not really desired.

Ordinarily, under these circumstances, no issue would be presented in this regard but here the failure and refusal on the part of the Navy gave rise to the related motions in the district court (1) for an ordet compelling designation and (2) for an order compelling production. The district court ordered production of the documents and that a person be designated to testify should it become necessary.

Rule 30(b)(6) required the designation and this part of the order of the court was correct. The order to designate is extant pending a further request by plaintiffs that a witness be designated.

At this point, rather than produce the Aircraft Accident Report, the Navy asserted the claim of privilege. The district court seems to have proceeded thereafter in rejecting the claim of privilege on the theory that the order to produce was a sanction, thus giving the court power to order production.

Such a theory is without basis in law. F.R.Civ.P. 37(a)(2) provides that if a “ . . . corporation or other entity fails to make a designation under Rule 30(b)(6) . . . the discovering party may move for an order compelling . . . a designation . . . ”. Thus, the court was empowered to enter an order compelling the Navy to designate. On the other hand, there was no authority to enter an order compelling production of the documents requested.

In any event, no sanction could be imposed absent a failure and refusal to comply with the court order. Rule 37, F.R.Civ.P. See 8 Wright and Miller, Federal Practice and Procedure Civil § 2289 (1970). It was at this point that the Navy claimed privilege with respect to the Aircraft Accident Report. There was never a refusal to comply with the order to designate.

The Navy does not contest that part of the order requiring designation. That part of the order requiring production of the Aircraft Accident Report is reversed. In view of our holding on the production issue, we find it unnecessary to reach the question of privilege.

Reversed and remanded for further proceedings not inconsistent herewith.

      . Rule 30(b)(6) provides that “[a] ‘party’ may in his notice and in a subpoena name as the deponent ... [a] governmental agency and describe with reasonable particularity the matters on which examination is requested. . . . the organization so named shall designate one or more officers ... or other persons who consent to testify on its behalf. The persons so designated shall testify as to matters known or reasonably available to the organization.”

      . The role of this representative is not in issue on this appeal.

      . 32 C.F.R. § 720.30(a) provides that litigants seeking unclassified Naval records should send a copy of a court order calling for their production to the Secretary of the Navy or other custodian of the records. 32 C.F.R. § 720.31(a) covering production of Naval records in absence of a court order requires a party to obtain approval of the Secretary of the Navy or the Judge Advocate General before findings of fact, opinions, or recommendations are released outside the Navy Department.

      . Fed.R.Civ.P. 45(d)(2), fixes the territorial limits of a subpoena for taking depositions as follows : “A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the district may be required to attend only in the county wherein he is served with a subpoena, or within 40 miles from the place of service, or at such other convenient place as is fixed by an order of court.”

      . The restriction of Rule 45(d)(2) as to non-parties is to be distinguished from the use of Rule 34, F.R.Civ.P., to require the production of documents by a party.


source: Caselaw Access Project

author: HUFSTEDLER, Circuit Judge:

license: Public Domain

text:
    Zack GREEN, Plaintiff-Appellee, v. Glenn DUMKE, Chancellor, California State Colleges, et al., Defendants-Appellants.
    No. 71-1260.
    United States Court of Appeals, Ninth Circuit.
    June 18, 1973.

      Edward Belasco, Deputy Atty. Gen. (argued), Jeffrey C. Freedman, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellants.
    Ernest L. Aubry (argued), Ralph M. Segura, Errol J. Gordon, of Western Center on Law and Poverty, Los Angeles, Cal., for plaintiff-appellee.
    Before MERRILL, HUFSTEDLER and CHOY, Circuit Judges.
   OPINION

HUFSTEDLER, Circuit Judge:

Green brought this civil rights action against the College and the named College Administrators (hereafter collectively termed the “College”), claiming that the College’s action in finding him ineligible for federal financial benefits deprived him of rights secured by the Fifth and Fourteenth Amendments for which he was entitled to declaratory and injunctive relief. Green lost federal grants and loans when the College determined that he was disqualified from receiving student benefits by his conduct on campus under the terms of section 504(a) of the 1968 Federal Higher Education Amendments (20 U.S.C. § 1060 (a)). The district court held that the College has misconstrued section 1060(a), and that the hearing, which resulted in disqualification, did not satisfy due process. The district court granted Green’s motion for summary judgment. On appeal the College contends (1) that the district court did not have subject matter jurisdiction; (2) that the district court misconstrued section 1060(a) to require specific intent; and (3) that the evidence adduced at the hearing adequately supported the College’s decision.

This action grows out of a turbulent student meeting held on May 9, 1969, in the cafeteria of Mt. San Antonio College. Students were excused from class to permit them to debate the allocation of student funds to the athletic department and to the Black Student Union. The budgetary issue was an outcrop of racial tensions on the campus, and the atmosphere of the debate was volatile. A student chairman was selected to establish orderly access to the microphone. Green had been previously allocated microphone time to express the views of the Black Student Union. After the chairman recognized Green and as he approached the microphone, one of the students, Stute, who was waiting his turn, yelled “Don’t let that nigger speak.” The audience reacted with jostlings, shouting, and exchanges of obscenities and racial epithets. Green immediately responded by leaving the platform and by taking several swings at Stute. Fist fights then broke out throughout the hall and spilled over to adjoining areas. The meeting was stopped, and classes were canceled for the rest of the day. Green was later convicted in a court of record of battery for striking Stute.

Green transferred from Mt. San Antonio College to California Polytechnic College. On August 27, 1969, the College told him that he had been awarded $2400 in federal aid for the 1969-1970 academic year. A month later, the Dean of Students notified him that the Dean had decided that the incident at Mt. San Antonio disqualified him from federal assistance under section 1060(a). A perfunctory hearing was held confirming the Dean’s conclusion.

Green commenced this action pleading federal jurisdiction, inter alia, under 42 U.S.C. § 1983 combined with 28 U.S.C. § 1343. While retaining jurisdiction, the district court ordered the College to conduct a new hearing. With a retired judge appointed by the College acting as hearing officer, the new hearing was held on August 13, 1970. The hearing officer found that Green had been convicted for battery after the effective date of section 1060(a), that the battery involved the use of force, that the battery “prevented officials or students of such institution [from] engaging in their duties and pursuing their studies,” and that such a crime “was of a serious nature and contributed to a substantial disruption ... at Mount San Antonio College.” The College concluded that Green was ineligible for federal benefits.

Green filed a complete transcript of the second hearing and moved for summary judgment. The district court decided that the College had acted under color of law, that Green had been denied due process because there was no evidenee before the hearing officer to prove that Green’s battery was of a “serious nature” within the meaning of section 1060(a) or to prove that Green had the requisite intent to prevent officials or students from engaging in their duties or pursuing their studies.

I.

The College argues that it is immune from 42 U.S.C. § 1983 because, in conducting the hearing, the College was acting pursuant to federal law and not under color of state law. The College is too modest about its role and too restrictive in its reading of the section 1983 script.

In enacting section 1060(a) and in providing federal aid to state college students, Congress did not reduce the College to the status of a federal hireling. The College was a participant in a federal-state cooperative venture of a kind that is increasingly familiar. Its role is analogous to that of state agencies administering other kinds of federally funded or cooperatively funded, social programs such as the Aid to Families With Dependent Children (AFDC) program. The Supreme Court has repeatedly found federal jurisdiction for challenges to the activities of state agencies administering federal programs under 42 U.S.C. § 1983 combined with 28 U.S.C. § 1343. It has not mattered a jurisdictional whit that the agency was enforcing federal statutes, as well as pursuing state ends. {E.g., Carter v; Stanton (1972) 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569; Townsend v. Swank (1971) 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed. 448; Dandridge v. Williams (1970) 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; Rosado v. Wyman (1970) 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; King v. Smith (1968) 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118.

The “under color of law” component of section 1983 is the equivalent of the state action requirement of the Fourteenth Amendment (United States v. Price (1966) 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267) and it carries the same meaning as its criminal counterpart, 18 U.S.C. § 242. E.g., Adickes v. S. H. Kress & Co. (1970) 398 U. S. 144, 152 n. 7, 90 S.Ct. 1598, 26 L.Ed. 2d 142; United States v. Price, supra at 794-795 n. 7, 86 S.Ct. 1152; Monroe v. Pape (1961) 365 U.S. 167, 185, 212, 81 S.Ct. 473, 5 L.Ed.2d 492. Recognizing these concepts as expansive, the Supreme Court has persistently refused to permit them to be shriveled by technicalities drawn from private law doctrines or to be emasculated by unnatural, artificial interpretations.

The College is a state institution. The state clothed it with authority to act; its officers and agents derived their authority to conduct the hearing from the College. “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” (United States v. Classic, swpra, 313 U.S. at 325-326, 61 S.Ct. at 1043; see also Monroe v. Pape, supra, 365 U.S. at 184, 81 S.Ct. 473; Williams v. United States (1951) 341 U.S. 97, 99, 71 S.Ct. 576, 95 L.Ed. 774; Screws v. United States (1945) 325 U.S. 91, 109, 112-113, 65 S.Ct. 1031, 89 L.Ed. 1495.)

Kletschka v. Driver (2d Cir. 1969) 411 F.2d 436, 447-449, is closely in point. A Veterans Administration doctor brought a civil rights action against federal and state officials seeking redress for interference with his employment rights. He alleged that Veterans Administration officials conspired with a state medical school to cause his transfer from the veterans’ hospital and his loss of a research grant. The court reversed summary judgment that had been awarded in favor of the state defendants, holding that the state officials acted under color of law. “When the violation is the joint product of the exercise of a State power and a non-State power then the test under the Fourteenth Amendment and § 1983 is whether the state or its officials played a ‘significant’ role in the result. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 [81 S.Ct. 856, 6 L.Ed.2d 45], ...” (411 F.2d at 449.)

The actions of state officials caused Green’s loss, and they acted under color of state law. Federal jurisdiction was appropriately laid under section 1983 and its jurisdictional counterpart, 28 U. S.C. § 1343(3). (Cf. King v. Smith, supra, 392 U.S. at 312 n. 3, 88 S.Ct. 2128; Wong v. Hayakawa (9th Cir. 1972) 464 F.2d 1282.)

II.

The College next contends that the district court misconstrued section 1060(a) when it decided that Green was not ineligible for benefits unless he committed the battery for the purpose of disrupting campus activities. The statute provides that disqualification results from a determination by the College that a person “has been convicted . of any crime . . . which involved the use of force . to prevent officials or students in such institution's] from engaging in their duties or pursuing their studies, and that such crime was of a serious nature and contributed to a substantial disruption of the administration of the institution with respect to which such crime was committed. . . . ” (Emphasis added.)

The College argues that the statute contains no provision for the specific intent element and that ineligibility is satisfied by proof that Green was convicted of battery, a crime involving force, and that his battery contributed to the disruption of the institution. The College’s interpretation is unacceptable because it reads the italicized language out of the statute. The purpose of the statute, read contextually, was to withdraw federal aid from a student whose crime was committed to disrupt the institution, one whose crime was a kind of offense against the institution.

The legislative history of section 1060(a) is brief. Nothing in the history, however, suggests that Congress intended to reach offenses that had the unintended consequence of disruption. The statute was enacted during an era scarred by campus shootings, bombings, sit-ins, and shut-downs, and it was deliberately provocative conduct of that nature and gravity which Congress sought to discourage. The Senate Report indicates that Congress sought to reach such conduct as the “vicious willful destruction of property [that] occurred at Columbia University”; it was not attempting to withdraw financial aid from students exercising First or Fifth Amendment rights or those who were guilty of “student pranks,” even if the pranks also constituted a crime involving force. S.Rep.No.1387, supra note 10, at 4053.

We also agree with the district court that Green’s offense was not a crime of a “serious nature” contemplated by Congress. Fist fights between male college students have long been a part of the undergraduate scene and are not generally considered serious; prosecutions are very rare. A fist fight cannot be escalated into a serious crime unless we can say that the aggressor intended to provoke consequences beyond his personal feud with his fellow student.

Finally, the College attacks the district court’s conclusion that Green was denied due process because there was no substantial evidence before the hearing officer .to support a finding (had one been made) on the essential intent element. It contends that intent could be inferred from the fact that disruption occurred after the fight. The principle that one is deemed to intend the natural and probable consequence of his intentional acts does not fit this case. Green reacted to fighting words. We cannot say that the audience responded more probably than not to Green’s swing than to Stute’s provocative language or, indeed, to the obscenities and epithets which the audience exchanged in an emotionally charged atmosphere before Green left the platform.

The due process violation in this case stems from the conduct of the entire proceedings that contributed to a defective hearing process. Cf. Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. The mistake of law committed by the hearing officer that resulted in no substantial evidence being adduced to support a finding of specific intent, and the subsequent action taken by the College in reliance upon the hearing officer’s findings, violated due process and thereby conferred jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). Cf. Wong v. Hayakawa (9th Cir. 1972) 464 F.2d 1282, 1283; see also General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R. D. 133, 143, 147; Karp v. Becken (9th Cir. 1973) 477 F.2d 171 (dismissal of section 1983 action for violation of First Amendment rights of suspended high school student reversed since no evidence in record to justify suspension).

Affirmed.

      . The Chancellor of the California State Colleges, the President, the Administrative Vice-President, and the Dean of Students of the College.

      . “If an institution of higher education determines, after affording notice and opportunity for hearing to an individual attending, or employed by, such institution, that such individual has been convicted by any court of record of any crime which was committed after October 16, 1968, and which involved the use of (or assistance to others in the use of) force, disruption, or the seizure of property under control of any institution of higher education to prevent officials or students in such institution from engaging in their duties or pursuing their studies, and that such crime was of a serious nature and contributed to a substantial disruption of the administration of the institution with respect to which such crime was committed, then the institution which such individual attends, or is employed by, shall deny for a period of two years any further payment to, or for the direct benefit of, such individual under any of the programs specified in subsection (c) of this section. If an institution denies an individual assistance under the authority of the preceding sentence of this subsection, then any institution which such individual subsequently attends shall deny for the remainder of the two-year period any further payment to, or for the direct benefit of, such individual under any of the programs specified in subsection (c) of this section.”

      . The sources were a State College Opportunity Grant, an Educational Opportunity Grant, a National Defense Loan, and a United States Work Study Grant.

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

      . “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
      “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. . . .”

      . We live in an age of complex intergovernmental relations that were virtually unknown to the post-Civil AVar drafters of the Fourteenth Amendment and the Ku Klux Elan Act of 1871. Ours is a time of increasing cooperative and creative federalism marked by joint federal-state ventures in numerous aspects of economic and social life. Programs such as revenue sharing, crime control, health care, and social security have blurred any sharp lines of demarcation of governmental authority and responsibility that once may have existed.

      . Civil rights legislation should generally not be interpreted narrowly. Section 1983 was designed as comprehensive, remedial legislation for the deprivation of federal constitutional and statutory rights. Smith v. Hampton Training School for Nurses (4th Cir. 1966) 360 F.2d 577; Basista v. Weir (3d Cir. 1965) 340 F.2d 74, 81. The contours of § 1983 must necessarily remain flexible to accommodate changing circumstances and the exigencies of a given era. Because it is remedial in nature, § 1983 is appropriately suited to redress any “new method of interference” with the rights which its words protect. “For it is the constitutional right, regardless of the method of interference, which is the subject of the statute and which in precise terms it protects from injury or oppression.” United States v. Classic (1941) 313 U.S. 299, 324, 61 S.Ct. 1031, 1042, 85 L.Ed. 1368.

      . What is now 42 U.S.C. § 1983 originated as § 1 of the Ku Klux Klan Act of April 20, 1871. 17 Stat. 13 (R.S. § 1979). Designated as “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes,” it was one of the methods by which Congress exercised the power vested in it by § 5 of the Fourteenth Amendment. As the debates at the time disclose, Congress sought to effectuate three purposes in enacting § 1983: (1) to override certain kinds of state laws; (2) to provide a remedy where state law was inadequate; and (3) to afford a federal remedy where the state remedy, while adequate in theory, was not available in practice. See Cong.Globe, 42d Cong., 1st Sess. (1871) 268, 345, 365-66.
      The sharp exchanges between proponents and opponents of the Act demonstrate that Congress was not placing a restrictive or unduly literal gloss on the phrase acting “under color of any statute.” One of the legislation’s supporters, Senator Edmunds, Chairman of the Senate Committee on the Judiciary, stated that it created a civil action to protect federal rights “assailed by any State law or under color of any State law.” Id. at 568 (emphasis added). Congressman Perry understood § 1983 to remedy injuries done “under color of State authority.” Id. at 79.
      The comments concerning § 1983 at the time of passage and an understanding of the circumstances that prompted its enactment demonstrate that Congress envisioned a more expansive interpretation of the words “under color of any statute” than appellants’ suggested construction. See generally Adickes v. S. H. Kress & Co., supra, 398 U.S. at 162-169, 183-184, 203-209, 90 S.Ct. 1598; Monroe v. Pape, supra, 365 U.S. at 171-183, 81 S.Ct. 473. The drafters were vividly aware that while many state laws did not compel racial discrimination or the deprivation of such rights as due process, the administration of a state’s laws by its officers could effectively accomplish these ends. E.g., Cong.Globe, 42d Cong., 1st Sess. (1871) 315, 334, 505. Consequently, § 1983 addressed not only abuses sanctioned by law, but also those committed by state officials or individuals who were in a position to perpetrate unconstitutional actions solely by virtue of the authority conferred upon them by the state government.

      . Because federal jurisdiction is thus secured, we do not reach the College’s attacks on alternative bases of jurisdiction pleaded by Green.

      . “The committee has been dismayed and alarmed by evidence of student unrest on the college campuses of this country which has been outwardly evidenced by rioting, trespass and forceful interference with the administration of the colleges and with the activities of students who wish to pursue their studies. Such activity is not to be countenanced in a society such as ours. Peaceful picketing and free speech are treasured rights, which must be protected but unlawful and violent conduct cannot be condoned.” S.Rep.No. 1387, 90th Cong., 2d Sess. (1968); 1968 U.S.Code Cong. & Admin.News 4053.

      . “Nothing in this section shall be construed to limit the freedom of any student to verbal expression or individual views or opinions.” 20 U.S.C. § 1060(d) (3). See Conference Report No. 1919, 90th Cong., 2d Sess. (1968); 1968 U.S. Code Cong. & Admin.News 4161.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    INTER-POLYMER INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1835.
    United States Court of Appeals, Ninth Circuit.
    June 15, 1973.

      Richard L. Lotts (argued), of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for petitioner.
    William Wachter (argued), Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, Douglas S. McDowell, NLRB, Washington, D. C.; Wilford Johanson, Director, Region 21, Douglas Olins, Region 21, NLRB, Los Angeles, Cal., for respondent.
    Before BROWNING and GOODWIN, Circuit Judges, and JAMESON, District Judge.

       The Honorable William J. Jameson, United States District Judge for the District of Montana, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

An employer petitions to set aside an order of the National Labor Relations Board to reinstate a discharged employee.

The Southern California Printing Specialties and Paper Products Union District Council No. 2, International Printing Pressmen and Assistants’ Union of North America, A.F.L.-C.I.O., filed charges that Inter-Polymer Industries, Inc., a Los Angeles manufacturer of plastic bags, violated § 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. § 15.8(a)(1), (3), and (5) (1970), by discharging Duane Osmus, an employee, for his union activities and by refusing to bargain in good faith with the Union.

After extensive hearings the Board found Inter-Polymer guilty of unfair labor practices in refusing to reinstate Osmus, in refusing to bargain in good faith, and in threatening employees for engaging in union activities. The Board ordered Inter-Polymer to cease and desist from designated unfair labor practices, to reinstate Osmus with back pay, and to post compliance notices. The Board’s decision and order are reported as 196 NLRB No. 101 (1970).

Inter-Polymer’s principal contention is that its refusal to reinstate Osmus was justified. The sharply contested issue is whether the NLRB was correct in deciding that Osmus was punished for union activity.

In March 1970, Inter-Polymer hired Osmus to perform machinist’s work and maintenance tasks. By August 1970, the volume of machinist’s work had declined, and Osmus was assigned to a maintenance project requiring overtime work. Osmus asked to be reassigned to machinist work. When his request was denied, he quit. A few days after quitting Osmus indicated his desire to return to work. Inter-Polymer agreed to reinstate him if he would perform ordinary maintenance tasks as well as machinist’s work.

In October, 1970, the Union became the collective bargaining representative for the plant. Osmus, a member of the employee negotiating committee, wrote a proposal on the assignment of maintenance and machinist work. Osmus’s supervisor told him that, because of his membership on the Union negotiating committee, Osmus was “on the company’s shit list.”

In November 1970, Osmus was laid off. Insufficient work in the maintenance department was given as the reason. In December Inter-Polymer recalled Osmus, but told him that he could not expect the bulk of his work to be machinist’s work. When Osmus reported to work, he complained about his work assignment. He telephoned the Union’s administrative assistant, who suggested he accept any work assignment prescribed, but that he inform Inter-Polymer that he would work only “under protest.” Os-mus took this advice, and his employers demanded an explanation of “under protest.” When Osmus did not explain what he meant, the president of Inter-Polymer warned him not to use “union tactics,” and told him he could return to work only if he did not require preconditions. Osmus left the plant, and his union filed the charges.

The Trial Examiner and the Board determined that Osmus was laid off in November for bona fide economic reasons. They also found that Osmus, in saying that he would work “under protest,” was stating that he was willing to accept general maintenance assignments, but that he would do so unwillingly and with full intent to use the Union to win an assignment to the machine shop, working exclusively as a machinist. However, where the Trial Examiner found that Inter-Polymer had a right to refuse to rehire Osmus on Osmus’s conditional terms, the Board concluded otherwise. The Board held that Inter-Polymer violated Section 8(a)(1) of the Act in refusing to reinstate Osmus.

While the evidence tends to cut both ways, substantial evidence supports the Board’s finding that Inter-Polymer denied Osmus re-employment because he had sought the assistance of his bargaining representative in a dispute with management over work assignments. The Board’s order thus vindicates the employee’s right to utilize his union in a controversy concerning his work. See, e. g., NLRB v. Victor Otlans Roofing Co., 445 F.2d 299, 300 (9th Cir. 1971).

Inter-Polymer also contends that the complaint should have been dismissed because an agent of the NLRB interviewed Inter-Polymer’s labor consultant and negotiator, without obtaining the permission of counsel.

As in Singer Co. v. NLRB, 429 F.2d 172, 178 (8th Cir. 1970), we need not reach the question whether company counsel must be afforded an opportunity to be present during all investigative interviews of company personnel. Here the Board found that its agent sought and obtained company permission to interview the labor consultant, and that the agent did not exceed the terms of that permission. The Board determined that in the course of being questioned on permissible subjects, the interviewee volunteered the evidence which Inter-Polymer later sought to suppress. We cannot say that the Board’s findings in this regard were without a substantial basis in the record.

Inter-Polymer’s last contention is that the compliance notice which the Board’s order requires it to post should be modified to inform the employees of their statutory right to file a decertification petition. Citing NLRB v. Copps Corp., 458 F.2d 1227 (7th Cir. 1972), and NLRB v. Priced-Less Discount Foods, Inc., 407 F.2d 1325 (6th Cir. 1969), Inter-Polymer maintains that decertification notice is necessary, because, inter alia, the employees have signed an anti-union petition. In making this contention, the company overlooks the fact that the union here, unlike those in Copps and Priced-Less, had won a Board election and was certified as the employees’ bargaining representative. Absent “unusual circumstances,” an employer must bargain with the certified representative of the employees during the “certification year” even if the union has lost its majority status through no fault of the employer. E. g., Brooks v. NLRB, 348 U.S. 96, 103-104, 75 S.Ct. 176, 99 L.Ed. 125 (1954); NLRB v. Keystone Valve Corp., 449 F.2d 1253, 1256-1259 (5th Cir. 1971); NLRB v. Holly-General Co., 305 F.2d 670, 675 (9th Cir. 1962).

The petition to set aside the order of the NLRB is denied.


text:
    Wallace REED et al., Appellees, v. Rogers C. B. MORTON, Secretary of the Interior, et al., Appellants, UNITED STATES of America, Appellant, v. HOOD CORPORATION et al., Appellees.
    Nos. 71-1187, 71-1188.
    United States Court of Appeals, Ninth Circuit.
    June 4, 1973.
    As amended on Denial of Rehearing July 27, 1973.

      Jacques B. Gelin (argued), Shiro Kashiwa, Asst. Atty. Gen., Sidney E. Smith, U. S. Atty., Dept. of Justice, Washington, D. C., Sherman P. Furey, Jr., U. S. Atty., Boise, Idaho, Edmund B. Clark, Arthur D. Smith, Dept. of Justice, Washington, D. C., for appellant.
    Dennis M. Olsen (argued), of Petersen, Moss & Olsen, Idaho Falls, Idaho, Alan R. Woodard (argued), of Kadison, Pfaelzer, Woodard & Quinn, Los Angeles, Cal., Alfred C. Kiser, Boise, Idaho, for appellees.
    Before BROWNING, DUNIWAY, and GOODWIN, Circuit Judges.
   ALFRED T. GOODWIN, Circuit Judge:

The United States appeals from two judgments in related litigation, approving the acquisition and development of 3,700 acres of public land in Idaho.

The first action was brought by Wallace Reed and others to set aside an administrative decision of the Secretary of Interior canceling seven individual entries filed under the Desert Land Act of 1877, as amended, 43 U.S.C. §§ 321-339.

The second action was brought by the government to cancel five patents granted to persons participating with the Reed group in acquiring the public lands in a manner the government contends was in violation of the Desert Land Act.

The district court held in the first action that the Secretary was wrong in canceling the seven entries that had not yet ripened into patents. In the second action it held that the five patents were free from fraud or mistake. We reverse both judgments.

I

The relevant facts apply to both cases. -In January and February of 1961, Reed, a farm-equipment dealer, and Raymond Michener, an agricultural engineer, recruited friends and relatives who, with themselves, filed twelve entries upon government land available for entry under the Desert Land Act. Reed and Michener contemporaneously purchased from the State of Idaho a section of state-owned land that was contiguous with parts of the twelve tracts for which desert-land applications had been filed.

On March 7, 1961, Reed and Michener organized a non-profit corporation known as Indian Hill Irrigation Company, and assumed the titles of officers of the corporation. There was no election of officers, shareholders’ meeting, or payment for subscribed stock.

When Reed and Michener originally conceived their plan for the 3,700 acres, they had hoped to defray the substantial costs of irrigation and development by a Bureau of Reclamation Small Projects loan. In the fall of 1962, prospects for the government loan did not appear to be good, and Reed and Michener approached the Travelers Insurance Company for a private loan with which to begin development. Travelers insisted that before it would make the requested loans it would require first mortgages on Reed and Michener’s state section and on Reed’s ranch, 1,000 acres of the project to be under irrigation, two entries to be processed to the point that they could be patented, and a lessee acceptable to Travelers who would operate the entire project as a farm. Under these conditions, the proposed Travelers loan could not meet the project’s need for immediate funds.

Reed and Michener entered into a five-year lease with A. J. Jolley and G. A. Masterson. The lease divided the anticipated farm proceeds among the named parties and gave the lessees an option to buy the land. There was no provision for the other entrymen to receive anything, and there is no evidence that any entryman other than Reed and Michener participated in the lease negotiations.

On February 12, 1963, Reed and Michener called a meeting of the entrymen and informed them that because of a shortage of capital caused by the failure of the anticipated loans to materialize each entryman would either have to pay to Reed and Michener $983 in cash and assume a personal obligation of between $12,000 and $14,000, or sign a long-term lease with and turn over development of the project to Indian Hill Irrigation Company. Six days later, all the entry-men except Reed and Michener entered into a twenty-year “lease and development contract” with Indian Hill, and' signed notes and mortgages for $300 per acre payable on demand to secure the payments that would fall due under the lease. These notes were secured only by the mortgages on the entry lands, and were not the personal obligations of the entrymen. Indian Hill agreed to bear all expenses and retain all profits.

There was testimony by two of the entrymen that it was understood at the February meeting that in turning over development of the project to Indian Hill the entrymen were giving up all their rights in the land, but would receive $10 per acre after their entries ripened into patents. The developers deny that any such understanding existed.

Two entrymen elected to drop out of the project in February 1963, and sold their interests for $5.00 an acre to Charles Shearman. Shearman was a part owner of Hood Corporation, a firm that installed gas pipelines to furnish power for irrigation pumps. Hood Corporation was, in early 1963, furnishing goods and services to the project, and Shearman became interested in the project as an investment.

By July of 1963, Hood Corporation had about $250,000 invested in the irrigation equipment in the Indian Hill project, and observed with increasing concern that the project was losing money. The original developers, Reed and Miehener, were also discouraged and wanted to sell out. Shearman, however, was still enthusiastic, but wanted a free hand in developing the land. Shearman, Reed, and Miehener met and reached an agreement. The agreement was memorialized in this somewhat cryptic handwritten memorandum, described in the record as G-115:

"4500 Ac. a 50 ..................225,000
Payoffs .......................... 25,000
200,000 ........... Total Price
5,000 ........... down
25.000 ........... when agreements signed
30.000 ........... when 1st 1200 Ac. proven
70.000 ........... when 3300 Ac. proven
70.000 ........... when 5 years"

During the summer of 1963 Hood’s attorney prepared documents to bring about Shearman’s objective of present security for money advanced and eventual acquisition of title to the lands in the project. For this purpose, Shearman formed a subsidiary of Hood, called Hoodco Farms. The attorney also completed the paper work that had been neglected when the Indian Hill corporation had been organized.

By an agreement dated August 15, 1963, superseding the February 18, 1963, agreement with Indian Hill, each entryman gave a nonrecourse promissory note to Hoodco Farms for $200 for each irrigable acre in his entry. Each note was secured by a second mortgage on the maker’s entry. First mortgages and similar notes for $100 per acre were given to Indian Hill. Each entryman surrendered possession to Hoodco for a period of twenty years. All stock of Indian Hill was pledged to Hoodco. Hoodoo’s attorney also prepared an offer to each entryman, except Reed and Michener, to purchase after patent the entry-man’s land and his stock in Indian Hill for $10.00 an acre. By a separate agreement, Reed and Miehener were to receive $197,200, to be paid as Hoodco obtained title to the project. A separate offer of $2,800 for title was given to Reed’s mother. All documents except the $10 per acre offers to the entrymen were presented to the entrymen in packets. The entrymen signed the papers, in most cases without reading them, and received no copies.

Hoodco assumed complete control of the project, and in September 1963 submitted final proofs to the land office. When the land office requested evidence of the entrymen’s stock ownership in Indian Hill, Hoodco’s attorney prepared stock certificates that purported to be “fully paid and nonassessable,” although payments had never been made.

"Between August 1963 and August 1964, Hoodco completed the irrigation system and the clearing of the land, at a cost of more than $1,000,000, or some $243 per acre.

On November 14, 1963, Jolley, one of the original lessees, reported to the Land Office that Reed and Miehener had agreed with Shearman to sell the patents for $250,000. The following March, Shearman died in an airplane accident, and Virginia Agricultural Co. assumed control of the project.

On July 2, 1964, the State Director of the Bureau of Land Management ordered a contest of the entries on a stipulated record. The record, prepared by attorneys for the entrymen, did not reveal the offers by Hoodco, the memorandum G-115, or the various “understandings” about transfer of the property. The record did include the formal contracts, the stock-pledge agreement, and a concession by Hoodco that the Indian Hill stock was not fully paid. The stipulation also included a proposed “supplemental agreement * * * designed to make it clear that whenever an entry-man paid off in cash what he owed, or assumed his proportionate share of the long term financing, he could obtain possession of his entry.”

On August 14, 1964, the State Director of the Bureau of Land Management dismissed the contest as to all entries but the Shearmans.’

On September 3, 1964, patents were issued to Wallace Reed, Myrtle Reed, Joseph Nielsen, Robert Schwarze, and George Crapo. These patents were delivered to Reed or Michener, recorded at Hoodco’s expense, and never returned to the putative patentees.

On September 4, 1964, the Director dismissed the contest as to the entries of the Shearmans. Thereafter the remaining entrymen submitted final proof papers.

On January 19, 1965, each of the patentees executed an option agreement and deed of his entry to Virginia Agricultural. Each option agreement granted Virginia Agricultural the option of purchasing the patentee’s land for $10 an acre, subject to the agreements and notes with Indian Hill and Hoodco.

On January 22, 1965, Reed and Michener entered into a new agreement with Hoodco Farms. Hoodco agreed to pay Reed and Michener $17,419.17 for delivery to Virginia Agricultural of $10-per-acre options on the entries of the five patentees, $24,386.33 for delivery to Virginia Agricultural of $10-per-acre options on entries of the other five original entrymen plus the Shearman entries, $56,000 after obtaining these entries, $29,596.80 for delivery of $10 options on entries known as the Blackwell, Hougen, and Nielsen entries (the July 1963 entrymen), and a bonus of $1,300 for the Hougen and Nielsen entries. The total payment was to be $128,702.30.

On March 9, 1965, the Solicitor of the Department of the Interior, in response to a request for information from the Secretary, advised the Secretary that it was error to decide the Indian Hill contests on a stipulated record and that the long-term lease and security arrangements violated the Desert Land Act. The Secretary set aside the Director’s decision as to the seven as yet unpatented entries, and ordered the matter reopened.

On May 25, 1966, the Secretary’s chief hearing examiner made findings against the entries. He found a lack of good-faith intent to reclaim at the time of entry and sufficient fraud to vitiate the entries. He found that the contracts and notes with Hoodco were assignments for the benefit of a corporation, that Hoodco held in excess of 320 acres, and that the entrymen had not spent $3.00 an acre. The examiner also found that the system as Hoodco built it could not be farmed in individual units because of the lack of access roads and water-measuring devices, and that conversion to farming by individual units would not have been economically feasible. The Secretary of the Interior, as noted, concluded that the examiner was right.

The United States sued to eject the patentees. Hoodco sued to invalidate the Secretary’s May 1966 decision canceling the entries. The eases were consolidated for trial, and on July 10, 1970, the district court found in favor of Hoodco on all points in both actions.

II

The detailed findings of fact were prepared by Hoodco, after the district court filed a memorandum finding generally in Hoodco’s favor. Despite the great weight to be accorded findings made by a trier of fact upon disputed contentions of fact, we cannot escape the conclusion that the district court here gave undue weight to the substantial investment of Hoodco in developing the lands. The court erroneously estopped the government from asserting valid legal grounds for setting aside the fraudulent transactions by which Hoodco acquired the lands in question.

The district court’s conclusion that the entrymen had the requisite intent to develop the land at the time patent issued was clearly erroneous. The district court’s conclusion that there was no “substantial evidence” of fraud or impropriety in the administrative record is also in error.

The evidence is virtually conclusive that the entrymen abandoned all hope and intent to develop at the time of tne February 12, 1963, meeting, and agreed at that meeting to transfer the project to others.

The $10 per acre which some of the entrymen testified that they understood they would receive if they turned over the project to the developers pervades the documentary evidence. The $25,000 in “payoffs” mentioned in G-115 works out to almost exactly $10 per acre for the noncontracting entrymen. The offers prepared by Hoodeo’s attorney in the summer of 1963 were for $10 per acre. The final agreements signed by the entrymen provided that they would receive $10 per acre for their entries. These agreements were prepared by Hoodco and signed by the entrymen without negotiation or consultation.

Hoodco has not explained its unilateral dealings with the entrymen nor the meaning of the memorandum G-115. The document, by its own terms, purports to memorialize terms of a sale of the land for $200,000 by the developers. Such a secret sale before patent is wholly illegal, and, unless explained, is almost conclusive evidence of a fraud upon the government. See United States v. Keitel, 211 U.S. 370, 29 S.Ct. 123, 53 L.Ed. 230 (1908).

However, Hoodco asserts that the $200,000 was to pay for the engineering studies and other services and property the developers had provided. But the developers’ own estimates of the value of these items establish that the $200,000 was an unreasonable and highly improbable payment. Furthermore, Hoodco’s theory does not explain the “payoffs” mentioned in the document G-115. Although two of the three parties to the contract and the attorney who helped prepare the document were available to testify, no one offered an alternative explanation.

Moreover, additional evidence that G-115 was a contract for the sale of land is found in the August 1963 offers to the Reeds and to Michener and in the January 22, 1965, agreement of Reed and Miehener with Hoodeo Farms. The 1963 offers show that $200,000 was to be paid for obtaining title to the land.The sums promised under the 1965 agreement also totaled, with adjustments, $200,000. Although these sums were purportedly for obtaining options to the land after patents issued, options and deeds had been obtained three days earlier from those entrymen holding patents.

In addition, the entrymen themselves, after the February 12, 1963, meeting, did not behave as if they had any interest in the land. They signed without discussion or dissent the August 15, 1963, agreements which made it practically impossible for them ever to regain possession of the land. The entrymen received no copies of the documents they had signed, in most cases, without reading. They did not protest when Hoodeo developed the land in such a way that it could not be farmed in individual units. The entrymen exhibited no curiosity when, upon issuance, the patents were delivered to and recorded by Hoodeo Farms, although the patentees were the ostensible titleholders. At the time of the final “sale” the patentees entered into no meaningful negotiations with the purchasers.

Upon this record, we must conclude that the entrymen understood at the February 12, 1963, meeting that they were transferring their interests to the developers for $10 an acre, and that they did not regard themselves as having any interest in the land after this meeting. Similarly, the developers secretly agreed in the July 1963 meeting to sell the title to the land to Shearman. In this case, as in Jones v. United States, 258 U.S. 40, 48, 42 S.Ct. 218, 220, 66 L.Ed. 453 _(1922) (Holmes, J.), “it is evident * * * that all hands proceeded on the notion that if the entrymen put in a periodical appearance on the land they would get it, and that no one troubled himself about actual intent provided that the affidavits were in due form * *

Hoodeo argues nonetheless that it is entitled to the land. Hoodeo asserts that the understanding in 1963 between the entrymen and the developers that the entrymen would sell their land for $10 an acre is irrelevant, that the secret contract with Shearman to sell the land to him is irrelevant, and that the fact that these arrangements were concealed from the Bureau of Land Management is also irrelevant. Such an argument defies reality.

Hoodeo relies on a series of cases which held that under the Timber Culture Act, June 14, 1878, ch. 190, 20 Stat. 113, or the Timber and Stone Act, June 3, 1878, ch. 151, 20 Stat. 89, the Land Department could not require an entry-man to swear at the time of final proof that he was not acting for another and could not prevent an entryman from making an executory contract to sell his land after patent. Adams v. Church, 193 U.S. 510, 24 S.Ct. 512, 48 L.Ed. 769 (1904); Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278 (1908); United States v. Biggs, 211 U. S. 507, 29 S.Ct. 181, 53 L.Ed. 305 (1909). The rationale of these cases was held to apply to the Desert Land Act of 1877, March 3, 1877, ch. 107, 19 Stat. 377, in United States v. Mackintosh, 85 F. 333 (8th Cir. 1898).

However, Mackintosh was decided before the enactment of certain amendments to the Desert Land Act and without the benefit of Supreme Court precedent construing the Act. We decline to follow it.

The rationale of the cases holding that the Land Department could not restrict the right of any entryman under the timber acts to make arrangements to dispose of his land prior to patent was that such a restriction constituted a restraint on alienation not contained in the statute. The Desert Land Act of 1877, like the timber acts, contained no restraint on alienation subsequent to entry. However, the Act of March 3, 1891, ch. 561, § 7, 26 Stat. 1095 (codified as 43 U.S.C. § 329), repealed the timber culture laws and amended the Desert Land Act to provide:

“ * * * [N]o person or association of persons shall hold by assignment or otherwise prior to the issue of patent, more than three hundred and twenty acres of such arid or desert lands *.
“Provided, however, That additional proofs may be required at any time within the period prescribed by law, and that the claims or entries made under this or any preceding act shall be subject to contest, as provided by the law, relating to homestead cases, for illegal inception, abandonment, or failure to comply with the requirements of law, and upon satisfactory proof thereof shall be cancelled * * (Emphasis deleted.)

Under the Homestead Act cases referred to in the amendment it was illegal to make a contract to convey an unpatented entry. E. g., Anderson v. Carkins, 135 U.S. 483, 10 S.Ct. 905, 34 L.Ed. 272 (1890).

The Land Department construed the 1891 amendment as allowing open assignments of an entry with the assignee completing the proof of the entryman but as permitting the Department to cancel an entry if a secret assignment were made. Herbert C. Oakley, 34 Interior Dec. 383 (1906). The rationale of this decision is that the recognition of a right of an entryman to secretly dispose of his land “might easily operate to nullify that provision of the act which declares that ‘no person or association of persons shall hold, by assignment or otherwise, prior to the issuance of patent, more than three hundred and twenty acres * * *.’ ” (Emphasis in opinion.) Id. at 386. This construction of the Act was approved in United States v. Hammers, 221 U.S. 220, 31 S.Ct. 593, 55 L.Ed. 710 (1911), where the Supreme Court, faced with the question of whether assignment was permitted at all under the 1891 amendments, allowed itself to be guided by the then long-standing administrative practice of allowing public assignments to qualified assignees. Congress also approved the administrative construction of the Act when, in the course of adding a provision prohibiting assignments to corporations, it codified the requirement that assignees possess the same qualifications as entrymen. Act of March 28, 1908, ch. 112, 35 Stat. 52 (codified as 43 U.S. C. § 324).

Hoodco, however, submits that the administrative practice of canceling entries when secret assignments are discovered is inapplicable because, unlike the secret assignment in Oakley, the arrangement here was not an explicit formal contract, but merely an undisclosed “understanding” between the entryman and the developers that would not have been legally enforceable even if it had not been kept secret.

But secret “arrangements” and “understandings,” like ihore formal contracts to pass title to desert land grants after patent, undermine the Interior Department’s power and duty to enforce the restrictions on the recipients of the government’s bounty. However quixotic it may seem at this late date to say so, Congress never intended bargain-price desert land to be provided for the benefit of corporations or large landholders.

In the present case there was an understanding that title to the lands would pass after patent, and that understanding was not revealed by the claimants. Because “the purpose and necessary effect of the conspiracy complained of was to obtain the lands of the United States by the suppression of facts which, had they been disclosed, would have rendered the acquisition impossible,” the patents and entries must be canceled. United States v. Keitel, 211 U.S. at 395, 29 S.Ct. at 130, 53 L.Ed. 230.

III

As to the unpatented lands, Hoodeo argues that the administrative hearings and cancellation of the entries were invalid because the Secretary had no power to set aside the 1964 decision of the Bureau of Land Management. Even if this argument were impeccable, however, it would afford Hoodeo little solace. Were the Secretary obliged to issue the remaining patents, he would only be duty bound to cancel them, for the same fraud that vitiates the patents already granted infects the unpatented entries. Furthermore, Hoodco’s argument is not correct.

Hoodeo urges that the setting aside of the 1964 decision violated the Constitution, the Administrative Procedure Act, and the regulations of the Secretary, and that the Secretary was es-topped from reopening the 1964 decision by Hoodco’s detrimental reliance. We reject all of these contentions.

The reopening was justified by 43 C. F.R. § 1843.9 (1965):

“When any party fails to appeal to the Secretary from an adverse decision of the Director, that decision shall as to such party be final and will not be disturbed except for fraud or gross irregularity.”

We approve the implicit finding of the Secretary that there was “fraud or gross irregularity” in the original dismissal of the contest on a stipulated record which did not reveal material facts, as well as in the conduct of the patentees and developers.

Nor did the reopening violate the Constitution. Prior to patent the Secretary retains jurisdiction over public lands. Knight v. United States Land Association, 142 U.S. 161, 12 S.Ct. 258, 35 L.Ed. 974 (1891). While the Secretary may not impose “conditions and stipulations ad infinitum,” Chapman v. El Paso Natural Gas Co., 92 U.S.App.D. C. 154, 204 F.2d 46, 52 (1953), he does “have the power, in a proper case, to correct his own errors.” Boesche v. Udall, 373 U.S. 472, 478, 83 S.Ct. 1373, 1377, 10 L.Ed.2d 491 (1963).

Hoodeo urges that the decision to reopen deprived it of “property” and that therefore the decision to reopen could be made only upon notice and after a hearing. But the decision to reopen deprived Hoodeo of no rights in the land. Having made their claims and entered upon the land, the entrymen became vested with equitable title. The abortive initial contest did not increase their entitlement to the legal title that would pass if patent issued. Cf. Cameron v. United States, 252 U.S. 450, 459-463, 40 S.Ct. 410, 64 L.Ed. 659 (1920). Nor did the decision to set aside the first contest diminish their rights in the land. These rights could be, and were, taken away only after a hearing directed to the issue of the legality of the entries. The only deprivation suffered was the burden of having to defend against a contest of the entries. This burden is not light, but it was not imposed without a prior hearing. The memorandum of the Solicitor to the Secretary recommending reopening and the decision of the Secretary were given to the claimants prior to the hearing on the merits, and they had an opportunity to argue to the hearing examiner that the case could not be reopened. This was all the hearing to which the claimants were constitutionally entitled. Cf. Ferry v. Udall, 336 F.2d 706, 714 (9th Cir. 1964), cert. denied, 381 U.S. 904, 85 S.Ct. 1449, 14 L. Ed.2d 286 (1965).

Our analysis of the constitutional issue also disposes of Hoodco’s contention that section 5(d) of the Administrative Procedure Act, 5 U.S.C. § 554(d) was violated by the response of the Solicitor’s office to the Secretary’s request for advice on the propriety of the original decision. Hoodco urges that the memorandum was a private communication with the “judge” in violation of A. P.A. § 5(d). But section 5 applies only to adjudication required by statute or the Constitution to be “determined on the record after opportunity for an agency hearing * * A.P.A. § 5(a), 5 U.S.C. § 554(a). Since there was no statutory or constitutional requirement that the Secretary’s decision be preceded by a formal hearing, the communication was not unauthorized.

Nor was the government estopped by the first decision. As a general rule the government is not estopped to attack illegality. Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791 (1917). Hoodco urges that the government should be estopped in this case as an exception to the general rule because the dismissal of the 1964 contest purported to be final and because of Hoodco’s heavy expenditures in reliance on the 1964 decision. But Hoodco knew of its own illegal conduct, and should have recognized the risks inherent in its fraud. Given that the Secretary could legally set aside an erroneous decision prior to patent if such conduct came to light, Hoodco’s position is no better than that of a litigant who conceals evidence and then relies on an erroneous lower court decision that is overturned on appeal.

In any event, Hoodco has not made out a sufficient case of detrimental reliance. By the time of the 1964 decision virtually all of the major expenditures on the farm had been completed in reliance on prior arrangements with the entrymen. The only specific expenditures that Hoodco asserts it made in reliance on the 1964 decision were a loan commitment fee, a contract with a manager to run the farm, and ordinary farming expenditures. While Hoodco may not have recouped all of these expenditures in profit from the land in the years since 1964, the amount allegedly lost in reliance on the 1964 decision is negligible compared to the value of the land.

Both judgments are reversed with instructions to enter judgments for the government.

      . Chapter 9 of Title 43 of the U.S.Code, 43 U.S.C. §§ 321-39, comprises the statutory framework by which individuals may acquire title from the United States to limited tracts of desert lands. Section 322 defines desert lands. Section 321 instructs the Secretary of the Interior to issue patents for up to 320 acres of desert land to a citizen who pays 25 cents per acre and files a declaration of intent to irrigate the land, and pays an additional dollar per aere and makes satisfactory proof of reclamation within three years of filing the declaration of intent. Under section 328 an entryman must prove he has expended at least $3 per acre for water rights and irrigation and that he has cultivated one-eighth of the land, Section 324 forbids assignment of land “to or for the benefit of any corporation or association.”

      . Jolley and Masterson later sublet to others.

      . After Shearman’s death, Shearman’s business partner in Hood, Bernard Laulhere, interested Harvey Proctor, an officer of the Southern California Gas Co., in the land development. Proctor owned the Virginia Agricultural Company.

      . Such assignments are prohibited by 43 U.S.O. § 324. See note 1 supra.

      . The statute allows a maximum of 320 acres to be claimed by an entryman. See note 1 supra; 43 U.S.C. § 329.

      . An entryman must expend at least $3 per acre for water rights and irrigation in order to perfect his claim. See note 1 supra.

      . The examiner relied on the form of development for two points. First, he saw it as evidence that Hoodco had planned from the beginning to retain possession of the lands. Second, he noted that unitary development created a major obstacle to any entryman’s actually repaying Hoodco and regaining his lands.
      The parties agree that the entries as developed could not be farmed as units, but they disagree as to whether conversion to small-farm operation was economically feasible. An entryman would have had to pay $96,000 to regain bare possession of a 320-acre entry. He would then have been faced with an irrigation company, Indian Hill, controlled by outsiders, and with the necessity of purchasing or renting from another cornpany,- Hoodco, the part of the irrigation system owned by it. The need to perform extensive modifications of the system to permit individual farming would present the ultimate obstacle.
      Thus, the examiner concluded that the entrymen had neither the ability nor the intent to pursue individual farming operations.

      . These payments relate to the G-115 exhibit as follows:
      January 22, 1965, payment $128,702.30
      Offers to Reed and Micheners on own patents at $10/acre 11,200.00
      Advance to Reed and Miehener in October 1964 10,000.00
      Crop loss 19,897.70
      Loan 1,500.00
      Price of Section 16 (from G-415, a handwritten memo of Miehener 30,000.00
      Total $201,300.00
      Less: “Bonus” (from G-415, handwritten memo of Miehener) 1,300.00
      Amount in G-115 $200,000.00

      . Hoodco urges that the 1964 decision was the decision of the Secretary rather than that of the Bureau of Land Management. We disagree. The purported “concession” by government counsel that the decision was that of the Secretary was merely an argument that it was legally irrelevant who made the decision, a point we need not decide. When asked specifically whether they made such a concession, government counsel stated that they did not and that in fact the director of the BLM had made the erroneous decision.
      Xor (loen the fact that the decision of the BLM was announced in a press release issued through the office of the Secretary render it the decision of the Secretary. A press release like the one issued operates as an announcement of the fact of lower-echelon governmental action, nothing more. Cf. F.T.C. v. Cinderella Career & Finishing Schools, 131 U.S.App. D.C. 331, 404 F.2d 1308 (1968).

      .' The Secretary’s authority to reopen is now expressed in more general terms in 43 C.F.R. § 4.5 (1972).


author: HOLLOWAY, Circuit Judge.

text:
    Samuel L. WOODS, Plaintiff-Appellant, v. NORTH AMERICAN ROCKWELL CORPORATION, a corporation, and Local 952, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Defendants-Appellees.
    No. 72-1064.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 23, 1972.
    Decided June 25, 1973.

      Brenda M. Robinson, Tulsa, Okl. (Goodwin & Goodwin, Tulsa, Okl., on the brief), for plaintiff-appellant.
    Charles C. Ivie, Los Angeles, Cal. (Stephen E. Tallent, Los Angeles, Cal., James O. Ellison, of Boone, Ellison & Smith, Tulsa, Okl., and Gibson, Dunn & Crutcher, Los Angeles, Cal., of counsel, on the brief), for defendant-appellee, North American Rockwell Corp.
    James E. Youngdahl, Little Rock, Ark. (Youngdahl, Sizemore, Brewer, Forster & Uhlig, Little Rock, Ark., on the brief), for defendant-appellee, International Union.
    Before BARNES, HOLLOWAY and McWilliams, circuit judges.

       Honorable Stanley N. Barnes of the Ninth Circuit, sitting by designation.

   HOLLOWAY, Circuit Judge.

Plaintiff-appellant Woods, a black worker, brought suit under Title VII of the 1964 Civil Rights Act, 42 U.S.C.A. § 2000e-5, for alleged racial discrimination practiced against him in his employment. The complaint sought damages against the employer, appellee North American Rockwell Corporation (the company) ánd Local 952, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W. (the Union). Equitable relief was also sought for reinstatement of Woods, retroactively at a promotion level, among other things.

The complaint alleged that Woods had been denied promotion, had been harassed and mistreated and eventually discharged by the company, all on account of his race. It averred that Woods had requested the union to obtain his reinstatement and charged the union with wrongful discrimination by failing to do so.

The ease was tried to the court: At the close of the plaintiff’s proof both defendants moved for dismissal of the action under Rule 41(b) F.R.Civ.P. Both motions were granted. An opinion was subsequently filed finding that no racial or other discrimination was shown and an order of dismissal was entered under Rule 41. We conclude that the findings are supported by the record and properly premised the judgment of dismissal, and affirm.

On appeal Woods essentially contends that he sustained his burden of showing discrimination by introducing a test he was made to take. He says that even though he was top man on the seniority list a white man with less seniority was promoted. Woods also argues that he sustained his burden of proof by introducing evidence of incidents of harassment by the company, culminating in his dismissal. In support of his claims against the company Woods relies mainly on Griggs v. Duke Power Co., 401 U. S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. And he contends that he sustained his burden of proof of discrimination against the union by showing that it failed to process his grievance in accordance with the collective bargaining agreement.

At the outset we must focus on the effect of the trial court’s dismissal under Rule 41(b). Woods argues that the dismissal was improper because a prima facie case had been made. However, the ruling was not one granting a directed verdict. In a ease tried without a jury, the trial court is not required to consider the evidence in the light most favorable to the plaintiff in determining whether to grant a motion to dismiss under Rule 41 made at the completion of the plaintiff’s case. Emerson Electric Co. v. Farmer, 427 F.2d 1082 (5th Cir.); Ellis v. Carter, 328 F.2d 573 (9th Cir.); O’Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir.); Penn-Texas Corp. v. Morse, 242 F.2d 243 (7th Cir.). In this case the court rendered judgment against the plaintiff at that point and later entered findings as provided in Rule 52(a), as required by Rule 41(b). In such circumstances we must view the findings in the same way as those entered at the close of all the evidence, determining only whether they are clearly erroneous. Simpson v. United States, 454 F.2d 691 (6th Cir.); Weissinger v. United States, 423 F.2d 795, 798 (5th Cir.); B’s Co., Inc. v. B. P. Barber & Associates, Inc., 391 F.2d 130 (4th Cir.); Penn-Texas v. Morse, supra.

On the merits we turn first to Woods’ argument based on Griggs v. Duke Power Co. There the Supreme Court stated the issue before it thusly, 401 U.S. at 425-426, 91 S.Ct. at 851:

“[Wjhether an employer is prohib-' ited by the Civil Rights Act of 1964, Title VII, from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites.”

The Supreme Court concluded that the employer’s practice on educational and test requirements was unlawful. The requirement imposed by the statute was stated clearly by the Court, 401 U.S. at 431, 91 S.Ct. at 853:

“What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”

We are satisfied that the record supports the trial court’s findings that no discrimination was shown. The record does show without dispute that a departmental promotion test was given to Woods. And, of course, since the motions to dismiss were granted no showing was undertaken by the defendants that the test was in any way related to the job to which Woods sought promotion. The company admitted in answering interrogatories that none of the questions on the test related to the duties of “Burr Machine Lead Man” which was the position in question. As to seniority, Woods testified that the white employee promoted to the lead man job was employed about a week after Woods was hired, and in the pretrial order it had been stipulated that the white employee had one day less of seniority than Woods.

However there was no proof by Woods that the test given was the basis of his being denied the promotion or his subsequent discharge. And of critical importance under the Civil Rights Act, there was no substantial proof that the test was intended to be used for racial discrimination, nor that it produced such a discriminatory result. See Griggs, supra at 432, 91 S.Ct. 424. This court has dealt with the burden resting on the plaintiff in Spurlock v. United Airlines, Inc., 475 F.2d 216, 218 (10th Cir.):

“Thus, when a plaintiff is claiming that the criteria used by a company in screening job applicants discriminate against a minority group, he need only establish that the use of such criteria has a discriminatory result. Griggs v. Duke Power Co., supra. It is not necessary to prove a discriminatory intent but only that the discriminatory criteria were used deliberately, not accidentally. Jones v. Lee Way Motor Freight, Inc., 10 Cir., 481 F.2d 245, cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237.’’

See also Cooper v. Allen, 467 F.2d 836, 838 (5th Cir.); Stevenson v. International Paper Company, 352 F.Supp. 230, 249 (S.D.Ala.); cf. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 249 (10th Cir.), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237.

Under these standards the record supports the trial court’s finding. Woods’ proof did not show that the test operated discriminatorily on the basis of race or color. See Griggs, supra, 401 U.S. at 429, 431, 91 S.Ct. 424. No prima facie case of such discrimination was established as in Spurlock v. United Airlines, Inc., 475 F.2d supra at 218. Therefore the company was not called on to show that the test fulfilled a genuine business need and was permissible under § 703(h) of the Act, 42 U.S.C.A. § 2000e-2(h). See Griggs, supra, 401 U.S. at 432, 91 S.Ct. 424. The record amply supports the court’s finding that the plaintiff failed to establish that the company engaged in any racially discriminatory employment practice.

Woods also argues that his proof shows that the company failed to maintain an environment free of racial discrimination. He says that the termination of his employment was in reprisal for his having filed a grievance against the company when he was denied the promotion to lead man, and that the company permitted him to be subjected to continuous harassment and discriminatory treatment by his white supervisor.

Woods points to his evidence that he was not given the promotion to lead man, although he had one day more of seniority than the white man who was promoted; that he was fired after he refused several times to sign a lost time card; that he had been given 25 penalty points although he took no longer than others who had done the same job, which points were later admitted to be unjustified and removed; and that he was timed for breaks taken.

Nevertheless Woods’ proof established no racial connection with any of the matters complained of. His testimony showed he was fired after refusing to sign the lost time card, following requests to do so on three consecutive days. In his testimony he admitted failing to appear for work for the overtime in question, although he had agreed to do so. And another black witness for Woods testified that he was asked to take the job of lead man, which he declined because he could not be guaranteed a return to his old job if the new position were unsatisfactory.

Again considering all the proof offered by the plaintiff against the company, we are satisfied that the trial court’s finding is amply supported.

Woods also argues that his evidence made a case against the union. He says the union had a duty not to discriminate against members on the basis of race; that it was obligated to take whatever lawful steps were needed to alleviate discrimination and its effects on one or all black members; and that the question whether the union was guilty of discriminatory practices on the basis of race was one of fact, relying on Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; United States v. Bethlehem Steel Corp., 312 F. Supp. 977 (W.D.N.Y.), modified, 446 F.2d 652 (2d Cir.); and United States v. H. K. Porter Co., 296 F.Supp. 40 (N.D. Ala.).

The union’s statutory duty of fair representation developed in a series of cases involving alleged racial discrimination by unions. See Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842, and cases there cited. Under the doctrine the union’s statutory authority as the exclusive agent to represent all members of a designated unit includes the duty to serve the interests of all without hostility or discrimination and to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Vaca, supra at 177, 87 S.Ct. 903; Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L. Ed.2d 370. And these duties include processing grievances in good faith under the collective bargaining agreement. Humphrey v. Moore, supra at 343, 84 S.Ct. 363.

However the claim of breach of the duty of fair representation must be measured by the standards whether the union’s action was arbitrary, discriminatory or in bad faith, Vaca, supra, 386 U.S. at 190, 87 S.Ct. 903; Patterson v. Tulsa Local No. 513, 446 F.2d 205, 210 (10th Cir.), cert. denied, 405 U.S. 976, 92 S.Ct. 1202, 31 L.Ed.2d 251, and whether there is fraud, deceit, dishonest conduct, or discrimination that is intentional, severe, and unrelated to legitimate union activities. Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 301, 91 S.Ct. 1909, 29 L.Ed.2d 473; Reid v. International Union, 479 F.2d 517 (10th Cir., 1973). Moreover the union is not liable for damages attributable solely to the employer’s breach and is chargeable only for increases, if any, in damages caused by the union’s failure to represent the employee properly. Vaca, supra, 386 U.S. at 197-198, 87 S.Ct. 903.

Woods points to the union’s failure to procure his reinstatement and to process, for more than two steps, his grievance filed in response to the company’s promotion of the white employee to the lead man position. There was, however, no showing that the union acted without justification. In fact there is no proof that Woods requested the union to take further action than it did on his behalf. Under the agreement here, the employee had no absolute right for his grievance to be carried to arbitration, and a breach of the duty of fair representation by the union is not established merely by proof that the underlying grievance was meritorious. Vaca, supra at 195, 87 S.Ct. 903; see also Griffin v. International U., United Automobile, A. & A. I. W., 469 F.2d 181, 183 (4th Cir.); Turner v. Air Transport Dispatchers’ Association, 468 F.2d 297, 300 (5th Cir.).

The trial court found that the union could not be expected indefinitely to prosecute grievances having no more factual basis than those disclosed by the plaintiff in his testimony. It was also found that his proof failed wholly to establish that the union engaged in any racially discriminatory employment practice. We conclude that the findings are amply supported and not clearly erroneous. They adequately support the conclusion that there was no breach of the statutory duty of fair representation. Motor Coach Employees v. Lock-ridge, supra, 403 U.S. at 299, 301, 91 S.Ct. 1909; Vaca, supra 386 U.S. at 190, 87 S.Ct. 903.

Affirmed.

      . We discuss below again a related point as to whether the plaintiff Woods established a prima facie case calling on the company to establish that the test was not unlawful.

      . We do note that tlie company’s answers to interrogatories stated that in the two years through the filing of Woods’ grievance, four men held the lead man position, and no black man ever held the job. One black man who took a lead man test was offered the position and declined it some time in 1968, 1969 or 1970. It was not established whether the test he took was the same one given to Woods.

      . The “prima facie” case referred to 'in Spurlock v. United Airlines, Inc., and here means the establishment of the fact of a discriminatory result by persuasive proof, which then requires the company to show a business necessity justification for the test. Cf. Ammons v. Zia Co., 448 F.2d 117, 119 (10th Cir.). This persuasive proof is not merely a prima facie case to survive a motion to dismiss in a case tried to a jury. See IX J. Wigmore, Evidence § 2494 (3d ed.); cf. Howze v. United States, 409 F.2d 27,28 n. 1 (9th Cir.).


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Bobby Eugene HARDEN, Appellant.
    No. 72-1741.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1973.
    Decided July 5, 1973.
    Stephen E. Safly, Little Rock, Ark., for appellant.
    Kenneth F. Stoll, Asst. U. S. Atty., Little Rock, Ark., for appellee.
    Before MATTHES, Chief Judge, and MEHAFFY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

Defendant’s appeal from a jury conviction upon the charges of bank robbery (18 U.S.C. § 2113(d)) and the Dyer Act (18 U.S.C. § 2312) raises the question of whether statements made by appellant shortly after arrest were improperly admitted into evidence because (1) the government failed to establish that appellant knowingly and intelligently waived his right to counsel, the Court having applied the wrong test in determining that issue, and (2) appellant’s statements were involuntary since they were made under the influence of drugs and under duress.

Appellant’s counsel made a motion to suppress in advance of trial and an appropriate hearing was held in advance of taking testimony. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The motion was denied. The issue of voluntariness was also submitted to the jury.

Appellant was arrested on the afternoon of February 4, 1972, in possession of a stolen automobile. He with two other occupants was taken to the police station where he was interviewed by detective James H. Dotson, Vincennes, Indiana Police Department and FBI Agent Roger Waite. Prior to the interview the FBI Agent read the Miranda warning to appellant and appellant signed a standard waiver of rights form. The trial court dictated findings as follows:

“I think the Court will make some factual findings first.
“Now, the Court finds that the police officers — Agent Waite and Sergeant Dotson — properly and fully warned the defendant of his constitutional rights before interrogating him and before discussing any matter with him affecting this case, or these cases.
“The Court further finds that at no time did the defendant request an attorney, although he had been advised that he could if he wanted to; so the Court does not consider that point well taken.”

Appellant contends the trial court applied the wrong test. We do not agree. The proper test is whether the defendant knowingly and intelligently waived his right to counsel. A heavy burden rests on the government to demonstrate the waiver. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 894 (1966). The issue is whether the defendant was effectively warned of his rights to counsel and that he knowingly and intelligently declined to exercise them. United States v. Scogin, 459 F.2d 182 (CA8 1972); Hughes v. Swenson, 452 F.2d 866 (CA8 1971). The mere fact that the trial court did not formally enunciate the test in full does not change the correctness of his ruling. We are satisfied from a complete review of this record that defendant waived his right to counsel under the standards prescribed. He was fully advised of his right to counsel and knowingly signed a written declination to exercise them. To what extent appellant’s use of drugs may have affected his waiver of counsel will be considered in our review of the trial court’s finding as to the voluntariness of appellant’s statements which we next consider.

The issue of whether a confession is voluntary and thus admissible is governed by standards summarized in Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 755, 9 L.Ed.2d 770 (1963). “If an individual’s ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will’ his confession is inadmissible because coerced.” (footnotes omitted). The question of voluntariness necessarily turns on the totality of circumstances. Boulden v. Holman, 394 U.S. 478, 89 S. Ct. 1138, 22 L.Ed.2d 433 (1969).

After conducting the suppression hearing the trial court made detailed findings with respect to the issue of voluntariness. In summary the Court found as follows:

“Now, for the record I am going to find that the defendant, despite the thin evidence, was an addict and was under the influence of drugs at the time of his arrest, that he needed drugs, and that he did suffer from some withdrawal symptoms during the course of his interrogation; that he was given medication that tended to relieve this and tended to produce a sense of euphoria, and then the interrogation was completed.
Nevertheless, in spite of all those findings, the Court concludes and finds that the statements made were voluntary, and that as far as the preliminary hearing is concerned, the Court is making the determination now that they will be admissible at the trial.
* * -* * * *
Now, I frankly think my decision is an extremely close one. And I do recognize that the Government has the burden of proving the voluntariness of this confession beyond a reasonable doubt; the defendant doesn’t have to do anything.
But I have to make some reasonable interpretation of voluntariness and some reasonable interpretation of rational intellect and free will; and I think the interpretation that I am making is the only practical, only sensible, only real one, because I think, except for a very sophistic type argument, it was a voluntary confession. I think he thought it was; I don’t think he felt under any compulsion, either from his drug habit or anything that the officers did.
So it will be received, and that is the ruling of the Court.”

A review of the evidence indicates that appellant at the commencement and during his interrogation advised his interviewers that he was an addict and “needed a fix.” The evidence shows he was not promised medication to induce his statements; he was oriented with good memory and good recall; that as he showed signs of discomfort the officers took him to a hospital where he was administered “a half dosage” of Demerol; this was equivalent in effect to 2-4 ounces of alcohol according to the prescribing physician — and the principal effect of the Demerol, is to sedate, to remove the need for the basic drug; thereafter appellant was more comfortable and reaffirmed the details of his prior confession concerning various crimes; the physician felt that the fact that appellant could recall and recount with specificity the details of past events suggested that he was not too much influenced by the prior drug or the Demerol which was administered.

We recognize, as did the trial court, that the issue of voluntariness under all the circumstances is a troublesome one. Based on our careful independent review of the record, we are satisfied that the trial court’s ruling was correct.

This is not a ease where a defendant suffering from withdrawal symptoms is induced to confess by promises of relief. Compare, United States Ex Rel. Collins v. Maroney, D.C., 287 F.Supp. 420. In the instant case when appellant showed signs of discomfort and exhibited symptoms of withdrawal, he was taken to the hospital where he was adminstered “a half dosage” of Demerol which relieved these symptoms and appellant became more relaxed and discussed in more detail events previously related. However, there is no indication that his statements were not the product of a rational intellect and free will. We are not prepared to say that a confession made by a person under the influence of drugs is per se involuntary. It is suspect, and a full and complete evidentiary hearing is necessary to a resolution of such an issue. Jackson v. Den-no, supra, 378 U.S. at 390-391, 84 S.Ct. 1774. The trial court recognized its duty to hold such a hearing and to apply the proper standards. In announcing its decision the Court, among other cases, discussed the principles reviewed in Gladden v. Unsworth, 396 F.2d 373, 380 (CA9 1968).

The issue here was whether the Demerol injection deprived appellant of “a rational intellect and free will.” Wade v. Yeager, 245 F.Supp. 62 (D.C. N.J.1964); compare, Griffith v. Rhay, 177 F.Supp. 386 (D.C.E.D.Wash.1959), rev’d 282 F.2d 711 (CA 9 1960) (Demerol — reversed because no waiver of right to counsel); Fant v. Peyton, 303 F. Supp. 457 (D.C.Va.1969) (intoxication). The trial court found that appellant’s statements were voluntary. The evidence supports that finding. United States v. Tyrone Wilkins, 477 F.2d 323 (CA8 1973) (drug flashback).

In conclusion we deem it appropriate to comment that the trial court exercised great care to insure that these difficult issues were fully developed in the .suppression hearing. Appellant was advised that he might testify at the hearing without prejudice to his right to remain mute at the trial before the jury later on. The government was permitted to offer as a part of these proceedings a certified copy of the findings of facts and conclusions of law and judgment entered by the United States District Court for the Southern District of Indiana on October 26, 1972 finding that appellant was competent at the time he entered a plea of guilty to proceedings in that court on February 11, 1972 and “at all times in question” (which included the date here in question February 4, 1972). However, Judge Eisele recognized there was some ambiguity with respect to the issues ruled on in Indiana as compared to the issues presented'in the instant matter and properly insisted on a complete hearing.

After carefully considering the entire record, we are satisfied that appellant knowingly and intelligently waived his right to counsel and voluntarily made the incriminating statements. The issues presented are troublesome. Absent a complete hearing and the record here made we might well be constrained to reach a different result. The issues were fully developed under the careful guidance of the trial court and with the able assistance of counsel for both the government and appellant.

Affirmed.

      . Sentences of 6 years and 3 years to run concurrently were imposed on the respective convictions.

      . Aside from vigorous cross-examination of the government’s witnesses, appellant offered no additional evidence at the suppression hearing. During the trial appellant only offered the testimony of Dr. Keyes who had testified upon call of the government in the suppression hearing.